All the elements of a trial were in place on Friday for the U.S. Commission on Civil Rights hearing on the New Black Panther Party case.
There was the chief prosecutor, played by David Blackwood, who serves as counsel to the U.S. Commission on Civil Rights. There were witnesses — Republican poll watchers Mike Mauro, Chris Hill and Bartle Bull — there were experts, and there were the charges: that the New Black Panthers intimidated voters in Philadelphia on election day in 2008, and that the Obama Justice Department’s dismissal of a civil suit brought in the waning days of the Bush administration would encourage more voter intimidation cases.
And then there were the defendants: the New Black Panther Party, the Obama Justice Department and the media, which for the most part, ignored the incident and year-long controversy over the partial dismissal as it festered on conservative blogs, fed by a You Tube video showing two members of the racist fringe group standing outside a majority black polling station in Philadelphia in military-style garb.
A few journalists and members of the New Black Panther Party showed up. The Justice Department didn’t, deciding to offer up Assistant Attorney General Thomas Perez at a separate hearing on May 14 away from the spectacle of Friday’s four hour hearing.
Six uniformed members of the New Black Panther Party and a few associates also attended the hearing equipped with newspapers that claimed the party was “under fire” from the commission, right wing conservatives and The Washington Times. During the hearing, the Panthers were seated in the second and third rows of the hearing room next to controversial former Justice Department official Hans von Spakovsky and later behind Rep. Frank Wolf (R-Va.).
But this wasn’t a trial, insisted Commissioner Gail Heriot. “No one is on trial here - not the members of the New Black Panther Party, not the witnesses to the incident, not the DOJ lawyers who initially filed this lawsuit, and not the DOJ officials who ultimately decided to terminate the lawsuit except in a very minor, minor aspect,” she said.
The commission had a duty to investigate such matters, said Heriot, one of two commissioners who switched from Republican to independent during the Bush administration, allowing two additional Republicans to be appointed without violating the rule that no more than four members of a party may serve on the commission at the same time.
All that was missing for the trial was a defense team. Even those commissioners who disagreed with the commission’s focus on the matter wanted nothing to do with the New Black Panthers. “This is not a defense of the Black Panthers, this is not to belittle anything that the witnesses saw or heard, but it is about the greater issue of what this commission is really all about, a mission that we have been sorely lacking within the last five years,” said Commissioner Michael Yaki. “It is to me about one thing — partisan payback. There is nothing about this report that talks about how this goes to a broader question about voting rights enforcement.”
Members of the New Black Panther Party were subdued during the meeting, sitting quietly in their chairs and occasionally whispering to one another. At one point, when a Panther tried to hand out a statement from the party to members of the audience, a commission staffer asked him not to, and he obliged.
At another point, Minister King Samir Shabazz stood up and took photos of the commissioners, those testifying and the audience.
During brief intermissions, the Panthers lobbied the commissioners, pointing out that they suspended Shabazz until January 2010 because of his actions. After three and a half hours, the group left, taking up positions on the corner of 9th and G Streets NW where they handed out newspapers to passersby.
Some Republican members of the commission argued that this incident had broader implications for the Voting Rights Act and drew analogies to the persecution of civil rights activists in the 1960s.
“One of the turning points was the national TV pictures of ‘Bull’ Connor turning dogs and hoses on the civil rights marchers,” Gaziano said. “After that national viewing, Americans who wanted to believe it wasn’t as bad couldn’t do so.”
“So the fact that the YouTube was viewed by hundreds of thousands and broadcast on national TV raised the awareness of this issue so that would you agree with me that the dismissal is a bigger problem than not filing where the evidence is ambiguous?” asked Gaziano.
Some of the Republican members of the commission have sought to prove politics were a factor in the handling of the case. They have pressed to hear testimony from Justice Department lawyers J. Christian Adams and Christopher Coates, but the Justice Department has resisted, citing a longstanding precedent that insulates career lawyers from having to testify before committees. Thernstorm said she had a problem with subpoenaing career lawyers.
In an attempt to tie the decision to Associate Attorney General Thomas Perrelli, Republicans brought in Gregory G. Katsas, who served in an acting role as Associate Attorney General during the Bush administration.
He testified that in his experience, the Associate Attorney General would have played a role in the decision. Katsas said the White House would have not been consulted about the decision, but would be notified so they could handle press queries after a decision was announced.
At least one Republican on the commission, Abigail Thernstrom, was critical of the focus on what even Republican poll watchers admitted was an isolated incident.
“As much as I abhor the New Black Panther Party, it is nothing in my view but a lunatic fringe group, a few of whose members showed up at one polling place in a largely black, safe Democratic polling place,” Thernstrom said. “There isn’t an analogy to racist whites stopping blacks from voting throughout the Jim Crow South.”
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When the George W. Bush Justice Department filed a civil complaint against members of the New Black Panther Party in January, it invoked a rarely used provision of the 1965 Voting Rights Act to allege voter intimidation.
It was the second time the Bush DOJ filed suit under Section 11 (b) of the landmark civil rights legislation – both times targeting black defendants.
The common denominator in these unusual applications of Section 11 (b) is J. Christian Adams, a line attorney at the Justice Department who compiled the Black Panthers case and also worked on a 2005 federal lawsuit against black officials in Mississippi accused of discriminating against whites.
Adams is a career Voting Section lawyer. He is also a foot soldier in the conservative movement, hired into the Justice Department during the Bush administration under a process the department’s Inspector General concluded was improperly politicized.
Adams’s background helps explain how a relatively minor incident in Philadelphia during the 2008 presidential election involving two members of an anti-white fringe group blossomed into a political controversy for the Obama administration.
Adams previously had volunteered for the Republican National Lawyers Association, an off-shoot of the Republican National Committee that trains lawyers to fight on the often racially tinged frontlines of voting rights, and had been a Republican poll watcher in Florida for the 2004 presidential campaign.
As a Virginia lawyer, he once filed an ethics complaint in Florida against the brother of Hillary Clinton, and reviewed a manuscript of a book that questions the contemporary need for Section 5 of the Voting Rights Act that he is tasked with enforcing.
More recently, Adams asked a question at a meeting of the conservative Federalist Society in Washington that appeared skeptical of affirmative action, wrote a piece for the American Spectator that likened President Barack Obama’s world view to that of Nazi appeasers and argued on a conservative blogging network that health care reform is a threat to liberty.
Hired in 2005 by Bradley Schlozman, a Bush-era political appointee who drove out veteran Civil Rights Division attorneys perceived to be liberal, Adams appears to be one of the “right-thinking Americans” with conservative affiliations that Schlozman improperly seeded throughout the bureaucracy.
Civil service protections make his removal difficult, and Adams now is emblematic of the challenges facing Attorney General Eric Holder and Civil Rights Division chief Thomas Perez, who have vowed to “restore” the division to its historic mission of enforcing anti-discrimination laws protecting minorities, while adapting to new challenges.
Republican members of the House asked for an investigation into whether politics played a role in the dismissal of the case and asked GOP senators over the summer to delay Perez’s confirmation over the matter.
When asked about Adams’s role in the Black Panther case, Perez said in a briefing with reporters last week: ”I don’t want to get in the business of speculating as to why somebody brought something at what point.”
The complaint Adams drafted was also signed by Christopher Coates, chief of the Voting Section, and then-acting Assistant Attorney General Grace Chung Becker, a Bush political appointee who failed to win Senate confirmation over Democrats’ concerns she wasn’t committed to enforcing anti-discrimination laws to protect minorities.
“We clearly communicate our expectations [to Civil Rights Division attorneys]. If you meet those expectations that are transparent, then we want you to continue as long as you want to be there,” Perez added, in another session with reporters after a speech at the National Press Club last Friday. “And if you don’t, we hold you accountable.”
Adams compiled the lawsuit against the Black Panthers, two of whom stood outside a majority-black Philadelphia polling place in November 2008 in military-style fatigues, one of them carrying a nightstick. After the Obama DOJ dismissed of the most of the complaint in May, outraged conservatives called for investigations into whether politics played an improper role in the decision.
“That looks more like some sort of street fight than it does a polling place,” David Norcross, chairman of the Republican National Lawyers Association, said of a widely viewed video showing the incident.
Adams referred questions about his casework to the DOJ’s Office of Public Affairs. A spokesman said the public affairs office doesn’t normally provide a log of cases on which a particular attorney has worked.
A review of documents on the Civil Rights Division Web site indicates that more recently, Adams worked on complaint filed in March under Section 2 of the Voting Rights Act, under the Obama administration, alleging the town of Lake Park, Florida, denied black voters an equal opportunity to elect representatives of their choice. In October, the Southern District of Florida federal court entered a consent decree and judgment changing the way the town elected its commissioners.
Turning the Voting Rights Act on its head
The Section 11 (b) civil authority under which the Black Panthers lawsuit was filed is rarely used, since criminal acts of voter intimidation are usually referred for prosecution.
The first known 11 (b) case since the early days of the Voting Rights Act came in 1992, when the government filed suit against North Carolina Republicans and the campaign of then-Sen. Jesse Helms (R-N.C.) for sending threatening postcards to 100,000 mostly black voters with misleading information about election laws.*
There were no more 11 (b) cases until 2005. Then, the Bush administration filed a voter intimidation lawsuit against black officials in Noxubee County, Miss., alleging systematic discrimination against white voters. It marked the first time the DOJ had used authority of the Voting Rights Act to allege voting discrimination by blacks against whites.
While the government won the Noxubee case and even Bush administration critics agree it had merit, they argue that pursing the case was a misuse of limited department resources. Critics also say the manner in which the Bush DOJ used section 11 (b) turned the spirit of the Voting Rights Act on its head. The 1965 act was passed amid incidents of beatings and harassment in the South by white mobs and Ku Klux Klan members against people demonstrating for black voting rights.
“Sadly, the only two [section 11 (b)] cases that have been brought by the [Bush] department have been on behalf of whites,” J. Gerald Hebert, a former acting chief of the Voting Section of the Civil Rights Division, told Main Justice.
The Government Accountability Office, meantime, recently highlighted a Section 11 (b) voter intimidation case that the Bush DOJ chose not to pursue. The case involved allegations that officials in an unidentified state had intimidated black voters.
The GAO didn’t give further details, but Perez said in recent congressional testimony the division had opened an investigation into the incident cited in the report. He declined to elaborate, citing the ongoing probe.
Hebert said in order to pursue a voter intimidation case, there should be depositions from voters who felt intimidated and the actions should be shown to be part of a larger campaign.
The Black Panther complaint provided little evidence to support the government’s allegation that the group conducted a coordinated campaign to intimidate voters, Obama Department of Justice officials have told Republican lawmakers.
“Frankly, the Philadelphia case [against the New Black Panthers] was on shaky ground from the beginning and was largely, I think, filed by the previous administration for the new administration to have to clean up, putting them in a difficult position,” said Hebert, a critic of the Bush administration’s management of the Justice Department who has written extensively about Section 11(b) for his current employer, the Campaign Legal Center.
Spakovsky: ‘political hacks” at DOJ
So far, no voters registered in the majority-black precinct in Philadelphia where the incident occurred have come forward publicly to say they were intimidated. The complaints have come instead from white Republican poll watchers.
The conservative-dominated U.S. Commission on Civil Rights is investigating the DOJ’s handling of the Black Panther case, and Adams has fought to obtain permission to assist its investigation, over objections from his superiors at the Justice Department.
Yet conservatives have raised no questions about the background or possible motivations of Adams, who compiled the case. Instead they have attacked the career DOJ lawyers who recommended dismissing it.
“Those two lawyers, Steve Rosenbaum and Loretta King, are two of the worst political hacks to be found in the career ranks of the Civil Rights Division,” wrote former Bush Civil Rights Division official Hans A. von Spakovsky in an opinion piece for National Review Online.
House Judiciary Committee members Lamar Smith (R-Texas) and Frank Wolf (R-Va.) have written letters to the DOJ asking whether it “improperly considered partisan politics” in dismissing the Black Panther case.
Spakovsky worked closely with Schlozman. He helped oversee the Noxubee case in Mississippi and assisted in the controversial purge of veteran lawyers in the division perceived to be liberal. The Democratic-controlled Senate in 2007 refused to confirm Spakovsky as a Federal Election Commission member.
Spakovsky has also worked at the U.S. Commission on Civil Rights for commissioner Todd Gaziano, an official at the conservative Heritage Foundation who’s been the driving force behind the push to investigate the Black Panthers matter.
Von Spakovsky told Main Justice said he hadn’t spoken with Adams about the case. “I know Christian just like I know all the lawyers, but I have not talked to him about the case,” he said.
The Obama DOJ, he added, has “not offered any reason to justify its dismissal, which leads you to the obvious conclusion that there were political and other reasons for doing it.”
In fact, Assistant Attorney General for Legislative Affairs Ron Weich has outlined the reasons for the dismissal in letters to Republican members of Congress. Read his response here (scroll down).
I’m Just a Media Guy
On election day in November 2008, a call came into the Philadelphia office of the John McCain for President campaign. Two black men in military-style fatigues and berets were standing outside a polling station. One of them was carrying a nightstick.
Stephen Robert Morse, a young freelance journalist who’d been hired by the local Republican Party to document potential irregularities at the polls, jumped in a car and sped to the apartment building at 1221 Fairmount Street, in a majority black neighborhood of Philadelphia.
“Dude, you got my back?” Morse said to a companion. He walked toward the two members of the New Black Panthers and began speaking for his video.
“Hi, I’m here at 1221 Fairmount in Philadelphia and there’s a guy with a billy club right here,” Morse said. “So, do we have any problems here? What’s going on? Everything okay?”
“Everything’s fine,” said Minister King Samir Shabazz, the Black Panther holding the night stick.
“Okay, I’m just, I’m just making sure,” Morse said.
Shabazz asked Morse to identify himself.
“I’m just a media guy,” Morse said. “I’m with the University of Pennsylvania. Who are you with? Sorry?”
“Ah … security,” Shabazz said. “Just wondering why everybody’s taking pictures, that’s all.”
“I think it may be a little intimidating that you have a stick in your hand, that’s all. I mean, that’s a weapon. I mean, I’m a concerned citizen,” Morse said.
“So are we. That’s why we’re here.”
“Okay, but you have a nightstick.”
“So what? You have a camera phone.”
“I have a camera phone, which is not a weapon,” Morse said.
Only 34 whites live in Precinct 4 in Philadelphia out of a total population of 970, according to census data. But there was a sea of white faces there that day, mainly Republican lawyers who’d come to monitor the polling station in what, since the disputed 2000 presidential election, has become an election-day ritual for both parties.
One of the white Republican poll watchers called police, and the nightstick-wielding Shabazz was shooed away without apparent incident. The other Black Panther, Jerry Jackson, who’d been issued a poll watching certificate by the Philadelphia County Board of Elections, remained.
Although both Shabazz and Jackson had been recorded in an earlier National Geographic documentary calling whites “cracker” and other derogatory terms, no racial epithets were recorded on Morse’s video in Philadelphia.
Then Fox News arrived.
Fox reporter Rick Leventhal interviewed an unidentified Republican poll watcher who told of a more racially charged scene.
The Black Panthers “told us not to come outside, because a black man is going to win this election no matter what,” the unidentified Republican poll watcher said on the Fox camera. “So, as I came back outside to see, the nightstick turns around and says, you know, ‘We’re tired of white supremacy,’ and starts tapping the nightstick in his hand.”
Fox reporter Rick Leventhal said: “The Black Panthers were there to intimidate white voters from coming to this polling location?”
“Or anyone who’s in their way. You know, I don’t know. A guy standing in front of a polling place with a night stick is a factor for all voters. Maybe little old ladies don’t want to walk through that,” the Republican poll watcher said.
The video that Morse made was uploaded to YouTube through a Web site called electionjournal.org, run by a Republican operative named Mike Roman.
Later that evening, Barack Obama won the election, becoming the nation’s first African-American president.
On YouTube, viewers started clicking Morse’s video. It eventually logged more than a 1.2 million views.
Republican poll watchers complain
In January, 13 days before Obama’s inauguration, the Civil Rights Division filed a civil complaint alleging that Shabazz and Jackson hurled “racial insults” and threats at both black and white individuals in Philadelphia, and “made menacing and intimidating gestures” directed at “individuals who were present to aid voters.”
Those “individuals who were present to aid voters” appear to be a reference to the white Republican poll watchers who reported the incident and gave interviews to Fox News. So far, no voters of any race who were registered in that precinct have come forward publicly to say they were intimidated.
The New Black Panther Party made an easy target for Republicans. Characterized as a hate group by the Southern Poverty Law Center, Shabazz and Jackson had been videotaped by National Geographic for a documentary calling whites “cracker” and other denigrating terms.
The black separatist group takes its inspiration from, but is not related to, the 1960s Black Panthers, the original “black power” movement.
Republicans have suggested the Justice Department dismissed the case because the New Black Panther Party helped get Obama elected. “It just smacks of some kind of a deal or a thank-you payback,” said Norcross of the Republican National Lawyers Association.
But a review of Shabazz’s comments before the election indicate he wasn’t an Obama fan.
“[Obama] is a puppet on a string. I don’t support no black man running for white politics. I will not vote for who will be the next slavemaster,” he told the Philadelphia Daily News days before the election, according to Politico.
The New Black Panther Party could not be reached for comment.
Washington Times “Exclusive”
After the Black Panthers failed to contest the lawsuit earlier this year, a default judgment was entered. The case then went to then-acting Civil Rights Division chief Loretta King for review.
A career DOJ lawyer, King decided one incident didn’t constitute an orchestrated campaign or pattern to deny voting rights, the usual criteria for deploying federal resources in litigation.
She also had concerns about seeking legal action in part based on how the men were dressed, and noted that one of them – Jackson – held an official poll watching certificate, giving him a reason to be on the premises. She recommended dismissal, a decision approved by her supervisor, Associate Attorney General Thomas Perrelli, an Obama political appointee.
The DOJ sought and won an injunction against Shabazz prohibiting him from carrying a weapon at polling stations through Nov. 15, 2012.
On May 29, the Washington Times published an “exclusive” that said Justice Department “political appointees overruled career lawyers” in dismissing the case.
“Career lawyers pursued the case for months, including obtaining an affidavit from a prominent 1960s civil rights activist who witnessed the confrontation and described it as ‘the most blatant form of voter intimidation’ that he had seen, even during the voting rights crisis in Mississippi a half-century ago,” the Times added.
The affidavit came from Bartle Bull, who worked for Robert F. Kennedy’s campaign in New York 40 years ago but has since been better known as a novelist. Bull supported John McCain for president – a fact not noted by the Washington Times.
After the Washington Times piece, Bull popped up in an interview with Fox News’s Bill O’Reilly. “The senior lawyer working on this case, Christian Adams, said to me, ‘if this is not a case of intimidation, nothing is,’” Bull told O’Reilly.
Bull also said he’d heard the Black Panthers in Philadelphia say: “Now you’ll see what it is like to be ruled by a black man, cracker.”
And Rep. Wolf gave a speech on the House floor in July excoriating Holder.
“Martin Luther King did not die to have people in jack boots block polling places,” Wolf said. “I question Eric Holder’s commitment to voting rights.”
Standoff over subpoenas
Now the matter lies in a standoff between the Justice Department and the U.S. Commission on Civil Rights, which has subpoenaed the DOJ for internal communications about the New Black Panther Party case.
The DOJ has resisted complying with the subpoenas, citing a Supreme Court precedent that protects the department’s internal work products from disclosure. But Adams has argued he is obligated to comply with the commission’s inquiry.
The U.S. Commission on Civil Rights’ general counsel, David Blackwood – who like Adams and other staff members on the commission is a Republican National Lawyers Association member – wrote the DOJ on Dec. 18 to say the commission had agreed for now to postpone depositions of DOJ officials.
The commission will set new deposition dates for the department employees in the next few weeks, and may consider subpoenaing other department personnel during the same time.
According to a plan circulated among members of the commission by Todd Gaziano, possible deponents in January and February 2010 include Thomas Perrelli, Loretta King, and civil appellate section chief Diana Flynn. The plan also calls for a hearing in Washington in early 2010.
The commission’s final report is scheduled to be released next summer, in advance of the midterm elections.
Mary Jacoby contributed to this report.
*Experts consulted by Main Justice indicated that the 1992 case was the first Section 11 (b) case they knew about. A reader has pointed out there was a case in 1966, and the language has been updated. While a previous version of this story called the Campaign Legal Center “liberal-leaning,” it is a non-partisan organization whose president served as general counsel for John McCain’s campaign in 2000 and 2008. Adams read the manuscript of, but did not edit, the book on the Voting Rights Act.
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