A Department of Justice Office of Professional Responsibility report into the department’s handling of the New Black Panther Party voter intimidation case provides vivid new detail about the festering staff conflicts inside the Civil Rights Division.
It describes how veteran Civil Rights Division attorney Steven Rosenbaum, who was acting Deputy Assistant Attorney General in the early months of the Barack Obama administration, clashed with lawyers hired during the Bush administration and their ally, former Voting Section Chief Christopher Coates.
At one point, the battle rose to the attention of Attorney General Eric Holder, who – while not interfering in the internal deliberations – nonetheless noted the “negative media attention” the case was likely to bring, the report said.
Holder’s prediction came to pass. Fox News, conservative lawmakers, and the former conservative-led U.S. Commission on Civil Rights pushed the largely dismissed case against the Black Panthers into a major political issue for the nation’s first black Attorney General, who has been accused of not enforcing voting rights laws when protecting white voters is at stake.
The backdrop is the continuing friction left behind by the politicized hiring spree of the George W. Bush administration.
Two of the key players in the Black Panther case – former Voting Section attorney J. Christian Adams and section Deputy Chief Robert Popper — had been hired in 2005 by under a process that a joint DOJ Inspector General and OPR report later concluded violated laws intended to keep career civil service jobs free of politics.
Adams has been a conservative activist with the Federalist Society and a group sponsored by the Republican National Committee. Popper had written extensively about voting laws and gerrymandering from a conservative perspective.
Then-Assistant Attorney General Brad Schlozman, who hired them, referred to liberals as “commie pinkos” and the Voting Section attorneys as “mold spores,” the IG-OPR report documented.
Their ally in the matter was a career DOJ lawyer, Coates, then the chief of the Voting Section, who would later accuse the department of not enforcing voting laws in a “race neutral” manner.
By the time Rosenbaum and another career Civil Rights Division lawyer, Loretta King, began leading the division on an acting basis in the early months of the Obama administration, mistrust between the veterans and the Bush hires was high.
Both sides thought the other were pursuing ideological agendas, news reports of the turmoil in the division during the Bush years made clear.
This tinder was soon fanned into a roaring political fire when, on election day 2008, two members of the racist New Black Panther Party hate group were filmed by a Republican Party videographer outside a polling station in Philadelphia, and the footage quickly was uploaded to YouTube.
The following account is largely taken from OPR’s 78-page report, released Thursday by House Judiciary Committee Democrats.
No voters complained
As voters went to the polls on Nov. 4, 2008, the Black Panthers story was all over Fox News. The video showed two members of the fringe group standing in black berets, black dress and black boots outside a majority-black polling station in Philadelphia, one of them holding a nightstick.
A white Republican poll watcher named Chris Hill called police. He said the Panthers were hurling racial epithets. The officers arrived and told the Panther with the nightstick, King Samir Shabazz, to leave. The other panther, Jerry Jackson, was allowed to stay; he was unarmed and held an official poll watching certificate.
In Washington, Adams was watching the news reports from his office at the Justice Department. He informed Popper, who contacted an attorney with the City of Philadelphia. She told him the incident appeared to be resolved, and no further action was necessary.
The Philadelphia U.S. Attorney’s office likewise looked into the incident. Many people were calling the office outraged about what they’d seen on TV. None was a Pennsylvania resident, much less a voter registered at the precinct.
Craig Donsanto, then director of the Election Crimes Branch in the Public Integrity Section, also looked in the matter as the polls were still open. He concluded in an email that no investigation was needed unless a voter made a complaint of intimidation.
“NO VOTERS – OR POTENTIAL VOTERS – OR POLL WORKERS – HAVE COMPLAINED TO ANYONE ABOUT THIS,” Donsanto wrote in all caps, in an email sent to the Voting Section in Washington, the FBI, the Public Integrity Section, and Philadelphia U.S. Attorney’s office, and Civil Rights Division criminal section.
Donsanto wrote futher than an Assistant U.S. Attorney in Philadelphia described the Panthers incident as “media invented.”
Back in Washington, Coates kept pushing. “If standing in front of a polling place with a stick in Black Panther clothing and talking about how you are going to keep whites from voting does not violate” voter intimidation laws, “I do not know what does.” He urged investigators to “get the names of any witnesses so this can be followed up today.”
Later that night, the first black president was elected. In Philadelphia, the U.S. Attorney’s office continued to investigate. But it later closed a criminal file when no voters could be found to complain. Indeed, no white voters at all were seen at the polling place in the majority-black neighborhood, according to interviews collected by OPR.
But the Voting Section pursued the case. The law protects poll workers as well – and there were Republican poll watchers complaining.
On Nov. 13, 2008, the Voting Section team forwarded what’s known internally as an “I Memo” to then-Principal Deputy Assistant Attorney General Lisa Krigsten for approval to investigate the case.
The “I Memo” noted that the Southern Poverty Law Center, which monitors hate groups, classified the New Black Panther Party as an “active black-separatist group,” and that the government would seek to prove the intimidation had been race-based, because of the documented racist attitudes of the party.
It also noted that the national leader of the party, Malik Zulu Shabazz, had claimed to Fox News on election day that 300 Black Panthers were deployed across the nation to ensure that black voters were not intimidated by white supremacists.
Adams traveled in early December 2008 with another DOJ attorney to Philadelphia to collect evidence. But other than the Republican poll workers, they turned up no complaints. One witness said he saw an elderly black woman who “appeared apprehensive” as she walked past the Panthers to vote, but she apparently could not be identified.
Later in December, Popper ordered Adams back to Philadelphia to try to locate an African American couple named Angela and Larry Counts, who’d been inside the polling station working as Republican Party voting assistants.
According to the white Republican poll watchers, this couple had been cowering inside the polling place, afraid to come after the Panthers called them “race traitors.” Angela Counts had reportedly made a remark she was afraid the Panthers would “bomb the place,” or something to that effect.
Adams showed up unannounced at the Counts’ inner-city Philadelphia home at 8 p.m. on the Saturday before Christmas. But the Counts denied they’d seen the Black Panthers, denied they had been scared, and denied having been called a “race traitor.”
“I ain’t even know they exist anymore,” Larry Counts later told investigators with the U.S. Commission on Civil Rights, apparently confusing the New Black Panther Party with the 1960s civil rights era Black Panther group. “They dead, you know.”
Nonetheless, then-acting Assistant Attorney General for the Civil Rights Division Grace Becker approved the civil lawsuit, which was filed on Jan. 7, 2009.
The complaint alleged that the National Black Panther Party and its leader, Malik Zulu Shabazz, “managed, directed and endorsed the behavior” at the Philadelphia polling place.
First Amendment issues
President Obama was sworn into office on Jan. 21, 2009. A career Civil Rights Division lawyer, Loretta King, was named acting head of the division. Her acting deputy was Rosenbaum, another career lawyer.
Rosenbaum and King quickly had a run-in with Coates and Popper over a politically charged case they were handling, United States v. Missouri. The lawsuit alleged the state of Missouri hadn’t done enough to purge voter rolls of ineligible people – a perennial policy goal of Republicans.
Rosenbaum was given a brief to review in the case late in the day on a Monday – not enough time, he felt, before the Wednesday filing deadline. He ordered the Voting Section management to give him at least three days notice before filing deadlines.
Moreover, Rosenbaum felt the Voting Section hadn’t given him enough background to understand what he was reviewing. “He angrily informed Coates and Popper it was their responsibility” to provide that background information, OPR wrote.
Meanwhile, the Black Panthers had failed to contest the civil lawsuit against them, and the Voting Section team began researching legal standards for obtaining a default judgment.
On April 28 – in keeping with Rosenbaum’s order he be given sufficient time to review all filings – the Voting Section attorneys sent him a draft memorandum for default judgment in the Panthers case. They proposed seeking nationwide injunctive relief. A supporting memo was also sent along.
Rosenbaum immediately began picking their work apart. “I have serious doubts about the merits,” he wrote in an email the next day. “This case raises serious First Amendment issues, but the papers you’ve submitted make no mention of the First Amendment.”
The DOJ would have to prove its case for default judgment before a federal judge. But Rosenbaum asked where was the evidence that the national Black Panther party had “managed and directed” the behavior in Philadelphia? Didn’t the Panthers have a First Amendment right to wear their black uniforms?
“Do we have any evidence that anyone was intimidated, threatened or coerced?” he asked.
The Voting Section replied that it didn’t seek to enjoin the statements of Malik Zulu Shabazz or the wearing of a Panthers black uniform. They simply wanted to introduce evidence the Philadelphia incident was a New Black Panther Party “initiative.”
As for evidence of direct intimidation, the Voting Section lawyers said poll watcher Chris Hill stated that the Panthers “physically blocked his path” when he approached the polling station.
They admitted: “We have no direct statements by the defendants threatening or promising physical harm. We do not think we need it, given the nightstick” and evidence of “confrontational language used,” and the fact poll watcher Hill said he’d been blocked.
On April 30, 2009, Rosenbaum attended a regularly scheduled weekly meeting with Associate Attorney General Tom Perrelli, the department’s No. 3 official who overseas the Civil Rights Division. He informed him about the case, and Perrelli suggested they file for an extension of time, if the lawyers hadn’t reached consensus on the next step.
Perrelli instructed his deputy, Samuel Hirsch, to stay apprised of the matter. The media might be interested.
Later that day, King, Rosenbaum, Coates and Popper met to discuss the case. Coates argued that Rosenbaum and King didn’t like the case simply because it was on behalf of white poll workers against members of a racial minority.
No one would question the lawsuit it was against the Ku Klux Klan, Coates said. King replied that even if the defendants were the Klan, she would not proceed without sufficient evidence to support the government’s claim in court.
King asked for a revised motion, but said she’d have to see the new documents early in the day in order to meet the May 1 filing deadline.
Pulling an all-nighter
Popper pulled an all-nighter in his office, trying to address King and Rosenbaum’s concerns. At 3:59 a.m. he emailed Coates and Adams with the subject line, “Bad News.” The revised proposed injunction would not attempt to enjoin the Panthers from wearing black uniforms, and an accompanying memo contained a discussion of potential First Amendment defenses.
An order was proposed prohibiting the Panthers from bringing weapons within 200 feet of any polling place on an election day, intimidating voters or poll watchers or blocking their entry.
On the morning of May 1, King began reviewing the revised documents. She also decided to check the New Black Panther Party website herself. What she was “incensed” and “floored” her, the OPR report said.
The national party had posted a statement dated Nov. 4, 2008, disavowing the actions in Philadelphia. On Jan. 7, it announced it had suspended the Philadelphia chapter and stated their actions “do not represent the official views” of the party.
The statements seemed to completely undermine the government’s claim that the national party had “managed and directed” the incident in Philadelphia. She marched to Rosenbaum’s office and demanded to know why she was just learning about it.
King and Rosenbaum immediately discussed the matter with Perrelli’s deputy, Deputy Associate Attorney General Hirsch. Then they summoned Coates and Popper to a meeting in Rosembaum’s office, where Rosenbaum berated them, “repeatedly” asking whether they thought the website statements were relevant.
Coates and Popper said they thought the statements were backdated and posted only because of the litigation, and in any event, they planned to inform the court.
Rosenbaum accused them of intentionally withholding evidence. Coates cursed. Popper “vigorously denied” he had lied. The acrimonious meeting ended with an agreement to file a motion for an extension of time with the court.
That doesn’t scare me
As the internal deliberations continued over the next few weeks, Rosenbaum would later criticize the Voting Section team for not getting any witness statements from Democratic poll watchers or using voter rolls to contact actual voters. “It appeared that the factual investigation was based largely on talking only to Republican party members,” Rosenbaum concluded, according to OPR.
Moreover, the most compelling evidence of intimidation – the statement from poll watcher Chris Hill that the Panthers had blocked his access to the polls – was undermined by an interview Hill had given to Fox News afterwards.
“As I walked up they [Jackson and Shabazz] closed ranks together,” Hill told Fox. “I’m an Army veteran – that doesn’t scare me. So I walked directly in between then [and] went inside.” [Article continues below]
Anticipating media attention
On May 5, King attended a meeting with Holder and his staff to discuss personnel matters within the Civil Rights Division. King brief Holder at that time on the Panthers case – the first time Holder had learned of the government’s suit or the incident itself, OPR said.
King did not seek or get Holders’ advice or approval but merely informed him of what she was doing OPR wrote. She told him she and Rosenbaum had decided to seek dismissal of the allegations against the national party, its leader Zulu Shabazz, and Jerry Jackson – the unarmed Panther who’d been a certified poll watcher. She said the department planned to seek in an injunction barring the Panther who’d held the nightstick from carrying weapons at polling places.
Holder said he trusted the division to pursue the correct course. “During the meeting, the Attorney General acknowledged the negative media attention that might result from King’s decision,” OPR wrote.
On May 15, the federal court in Philadelphia granted the government’s motion to dismiss most of the complaint. It also granted the injunction against King Samir Shabazz prohibiting from carrying a weapon at the entrance to polling places through 2013.
No ‘race-neutral’ enforcement?
The Black Panthers case roiled long-simmering animosities in the Civil Rights Division between long-time attorneys and the brash newcomers hired during the Bush administration.
Coates told OPR – in allegations he’s since repeated publicly – that division lawyers are hostile toward enforcing cases that protect white rights.
Other current and former Civil Rights Division attorneys told to OPR that, given that the division was formed in response to violent suppression of African American rights in the South, many there viewed their primary mission as protecting the rights of minorities.
They acknowledged the civil rights laws are “race neutral,” but said when deciding how to allocate scare resources, many attorneys believed they should focus on discrimination against minorities. However, OPR noted, “none of the attorneys OPR interviewed personally espoused that view.”
The troubled history of the Civil Rights Division during the Bush years also played in the background. For example, for years under Bush, the division declined to pursue cases under Section 2 of the Voting Rights Act in which racial minorities were the victims.
Then, after years of drought, the Bush administration finally brought such a case in 2005 – against a black official in Mississippi accused of discriminating against white. Adams, the lead lawyer in the Black Panthers case, also worked on the Mississippi case.
That case, United States v. Ike Brown and Noxubee County, still lingers over the division. Coates told OPR that many attorneys in the Voting Section refused to work on it because they didn’t believe the civil rights laws should be enforced to protect white voters.
The government won the Mississippi case. Other division attorneys told OPR they didn’t object to the case per se, but rather to the allocation of resources to it when other meritorious cases to protect minorities were not being pursued.
All in good faith
The OPR report was released Thursday on the website of the House Judiciary Committee Democrats. The internal watchdog office’s probe began in 2009, after the department’s Inspector General referred a request for investigation from 10 Republican members of Congress. The lawmakers questioned whether the partial dismissal of the now high-profile case by the Obama administration reflected political or racial bias.
Ultimately, the OPR report concluded that all attorneys involved in the case – the Bush-era team that brought the civil lawsuit, as well as the career Civil Rights Division lawyers who decided to dismiss most of it in May 2009 – acted properly. It did not find political interference from political appointees at Justice or the White House.
Both teams “made good faith, reasonable assessments of the facts and the law, but reached different conclusions,” the report said, looking narrowly at whether the attorneys committed misconduct in their official duties.
Neither side was motivated by racial bias or partisan political considerations, the report concluded.
But in the wider public arena, the case has been about nothing but race and partisan politics.
Coates later left his position as head of the Voting Section to take a job at the U.S. Attorney’s office in South Carolina, apparently under pressure. Adams clashed with his superiors over his desire to give testimony about the Panthers case before the U.S. Civil Rights Commission and quit the DOJ so he could do so.
Both Coates and Adams have blasted their former colleagues as racially biased. Their allegations have gotten wide play on Capitol Hill and on Fox News. In a Senate Judiciary Committee hearing last month, a Texas Republican lawmaker accused Holder publicly of allowing reverse racism at the department to flourish.
Holder gave an impassioned response.
“When you compare what people endured in the South in the ‘60s to try to get the right to vote for African Americans and to compare what people were subjected to there to what happened in Philadelphia is inappropriate,” Holder said. “To describe it in those terms, I think does a great disservice.”