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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In its lead editorial on Sunday, The Washington Times asked if “President Obama’s legal team is imploding due to a voter intimidation case involving the New Black Panther Party.”
The editorial from the conservative-leaning newspaper comes as House Republicans are working to keep alive a controversy regarding the Justice Department’s handling of the case against members of the New Black Panther Party.
Members of the black separatist group stood outside a Philadelphia polling place last November in military-style fatigues. The government filed a civil lawsuit against several members of the organization in the waning days of the Bush administration.
During the early months of the new administration, career attorneys temporarily appointed by President Obama to leadership roles determined that just one case, against a defendant holding a nightstick, was sustainable and obtained an injunction against him. The other charges were dropped, and conservatives argued that those appointees were driven by political motivations.
“Holder and them have done a terrible job on this,” Rep. Frank Wolf (R-Va.) told The Washington Times. “This has just been handled so poorly. … You can’t hide these things. There is something wrong here. There is something very wrong. When it all comes out, I think it will be very bad.”
The Washington Times editorial page thinks the congressman is probably right.
A Justice Department spokesperson Monday declined to comment to Main Justice on the Washington Times editorial. On Friday, the chairman of the New Black Panther Party told The Associated Press that the now-dismissed civil lawsuit filed by the Justice Department against his organization had no merit because the party does not condone voter intimidation.
On Thursday, Republican members of the House Judiciary Committee pressed Civil Rights Division chief Tom Perez on the Justice Department’s handling of the case against the New Black Panther Party during his testimony before the panel’s Constitution, Civil Rights and Civil Liberties Subcommittee on a wide range of civil rights matters.
Perez was well prepared for the line of questioning, telling the subcommittee that the decision to drop the case was made by two career attorneys with more than 60 years of combined experience who concluded that the charges against two out of three defendants named in the original court filing charged were unsustainable. DOJ obtained an injunction against against the member of the New Black Panther Party who was holding a nightstick, which Perez said was the maximum penalty allowed under Section 11(b) the Voting Rights Act.
After being asked several times, Perez said he was amongst the millions who have seen the video either online or on television. He reminded the lawmakers that the department’s Office of Professional Responsibility is reviewing the matter and said he was looking forward to the report.
Rep. Steve King (R-Iowa), meanwhile, claimed that Perez had lied to the subcommittee during a heated exchange with Rep. Louie Gohmert (R-Texas) over the handling of the case. Perez said the injunction was the maximum penalty possible under Section 11(b). That is true, agreed former Acting Assistant Attorney General for the Civil Rights Division Grace Chung Becker, but King and other subcommittee Republicans argued that the injunction could have been broader and not just limited to Philadelphia, for four years, as the current injunction entails.
“I’m going to make this position, Mr. Chairman, I do not believe Mr. Perez was truthful with this panel, and I believe the question comes up as to whether we need to look into the penalty for being dishonest with this committee,” said King.
At that point, subcommittee Chairman Jerrold Nadler (D-N.Y.) gaveled King to order, saying that King was approaching or may have exceeded the rules of the House. After the hearing had adjourned, King told a staff member to get a clip of the exchange between Perez and Gohmert along with the written record of his testimony and make it “his Achilles heel.”
“I sat down and have been briefed on this case, and I can tell you that this case is the clear cut open and shut case of voter intimidation in the history of the United States of America,” King told Main Justice last Tuesday, a point he reiterated during the hearing. “That is no stretch, there’s nothing that even comes close, and the investigators will tell you that if they have a candid moment.”
Speaking further about the unnamed attorneys he’s spoken with, King told Main Justice that he’s “had very informed conversations with people that are very close to the case, and I’ve got to be cautious about the people I name.”
Video of a heated exchange is embedded below.
This article has been updated to note that the federal government filed a civil suit, not federal charges, against members of the New Black Panther Party.