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The U.S. Department of Justice and the New Black Panther Party Litigation

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The U.S. Department of Justice and the New Black Panther Party Litigation Race Neutral Enforcement of the Law? The U.S. Department of Justice and the New Black Panther Party Litigation An Interim Report U.S. Commission on Civil Rights The U.S. Commission on Civil Rights is an independent, bipartisan agency established by Congress in 1957. It is directed to: Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices. Study and collect information relating to discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice. Appraise federal laws and policies with respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice. Serve as a national clearinghouse for information in respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin. Submit reports, findings, and recommendations to the President and Congress. Issue public service announcements to discourage discrimination or denial of equal protection of the laws. Members of the Commission Gerald A. Reynolds, Chairman Abigail Thernstrom, Vice Chair Todd Gaziano Gail Heriot Peter N. Kirsanow Arlan D. Melendez Ashley L. Taylor, Jr. Michael Yaki Martin Dannenfelser, Staff Director U.S. Commission on Civil Rights 624 Ninth Street, NW Washington, DC 20425 (202) 376-8128 (202) 376-8116 TTY www.usccr.gov This report is available on disk in ASCII Text and Microsoft Word 2003 for persons with visual impairments. Please call (202) 376-8110. ii Race Neutral Enforcement of the Law? Letter of Transmittal The President The President of the Senate The Speaker of the House Sirs: The United States Commission on Civil Rights transmits this report, Race Neutral Enforcement of the Law? DOJ and the New Black Panther Party Litigation: An Interim Report, pursuant to Public Law 103-419. The purpose of the report is to examine the U.S. Department of Justice’s (“DOJ” or “the Department”) legal and policy rationales for dismissing a civil voter intimidation lawsuit against three of four defendants and reducing the relief requested against the fourth, despite the case being in default. Based upon the incomplete, incorrect and changing explanations offered by the Department for its actions, the Commission decided to examine whether the U.S. Department of Justice enforced voting rights in a race-neutral manner when it reversed course in the New Black Panther Party case. The case stemmed from an incident that occurred in Philadelphia during the 2008 presidential election in which two New Black Panther Party members stood in the entrance to a polling place in full paramilitary garb and shouted racial slurs. One of the two brandished a nightstick. In December 2008, a civil case for alleged Voting Rights Act violations for intimidating or attempting to intimidate voters, poll workers and observers was initiated against the NBPP, its chairman, and the two men at the polling place. Despite the entry of a default in DOJ’s favor against each of the defendants, in May 2009 the Department abruptly reversed course and dismissed charges against all but one of the defendants and reduced the original sanctions it requested against the remaining defendant, who was only enjoined from carrying a weapon at a polling place in Philadelphia until 2012. Pursuant to its investigation, the Commission has held four public hearings, taken several depositions and attempted several others. It has attempted to work cooperatively with DOJ, but has been met with substantial resistance and only contrived cooperation for public affairs purposes. For example, though DOJ has provided thousands of documents unrelated to its decision to drastically reduce the nature and scope of the relief it sought in the NBPP case, it has repeatedly rebuffed Commission requests for key documents. While it provided witness testimony from a high-level official not at the Department during the relevant time period in question, it has directed those of its employees under subpoena with relevant, direct knowledge not to provide testimony to the Commission. It has also attempted to impose unreasonable conditions on the Commission before it will allow the deposition testimony of other Department employees and has raised questionable and sweeping privilege claims. Two senior career attorneys who worked on the NBPP case defied DOJ’s directive not to comply with the Commission’s subpoenas at great personal risk to themselves. One testified after resigning his position at DOJ. The other, the former head of the Voting Section who was transferred to South Carolina, is still currently employed with DOJ. Both accused the Department of failing to enforce the voting rights laws in a race-neutral manner, an allegation denied by the current head of the Civil Rights Division who testified, but who was not at DOJ during the critical period in question. Letter of Transmittal iii Because the Department withheld relevant documents and relevant officials’ and supervisors’ witness testimony, the Commission was limited in its ability to complete a final report. As a result, the Commission issues this interim report, which was approved on November 19, 2010. Part A of the report, consisting of Chapters 1 through 5 and the appendix, was approved by a vote of 5-2. Chairman Reynolds and Commissioners Gaziano, Heriot, Kirsanow and Taylor voted in the majority. Commissioners Yaki and Melendez voted against the report. Vice Chair Thernstrom was absent and declined an opportunity to cast her vote for the body of the report and findings and recommendation at a subsequent meeting. The Commission, by a separate 5-2 vote breaking down along the same lines, found that although its statute authorizes the Commission to subpoena witnesses and written material and requires federal agencies to cooperate fully with its investigations, its authority to seek legal recourse when the Attorney General refuses to enforce Commission subpoenas, as has occurred repeatedly during this investigation, is unclear. By a vote of 5-1-1, the Commission further found that the Department has an inherent conflict of interest when it would prefer not to cooperate fully with the Commission’s investigations of DOJ’s actions. In the New Black Panther Party investigation that is the subject of this report, the Department refused to comply with certain Commission requests for information concerning DOJ’s enforcement actions, and it instructed its employees not to comply with the Commission’s subpoenas for testimony. (Commissioner Yaki voted against; Commissioner Melendez abstained; Vice Chair Thernstrom was absent for the vote; the remaining Commissioners approved the finding). The Commission recommended, therefore, that Congress consider amendments to the Commission’s statute to address investigations in which the Attorney General and/or the Department have a conflict of interest in complying fully with the Commission’s requests for information. Options might include the enactment of a statutory procedure to require the Attorney General to respond in writing to a Commission request for the appointment of a special counsel to represent it in court; a statutory provision clarifying that the Commission may hire its own counsel and proceed independently in federal court; or a conscious decision by Congress not to alter the current authority that allows the Attorney General and the Department of Justice to act against the Commission’s interest without explanation (5-2; Commissioners Yaki and Melendez voted against; Vice Chair Thernstrom was absent for the vote; the remaining Commissioners approved the recommendation). The report includes separate concurring statements submitted by Commissioners Gaziano, Heriot and Kirsanow. Commissioners Gaziano and Kirsanow joined each other’s statements and Commissioner Heriot’s statement. Commissioners Melendez and Yaki filed a joint dissenting statement. Vice Chair Thernstrom also submitted a dissenting statement. Finally, the report includes a joint-rebuttal statement submitted by Commissioners Kirsanow, Heriot and Gaziano. For the Commissioners, Gerald A. Reynolds Chairman iv Race Neutral Enforcement of the Law? Table of Contents Letter of Transmittal ......................................................................................................... ii Chronology of Significant Events in United States of America v.New Black Panther Party for Self Defense et al. ............................................................................................. vi INTRODUCTION .................................................................................................................... 8 PART I: Factual Background................................................................................................... 4 A. Election Day 2008 .................................................................................................. 5 PART II: The New Black Panther Party Litigation................................................................ 13 A. History of The Lawsuit......................................................................................... 14 B. The Department’s Explanations ........................................................................... 21 i. First
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