January 22, 2010

January 22, 2010 | Commentary on Political Thought

The New Black Panthers and the White House

The more the Obama administration fights the subpoenas from the U.S. Commission on Civil rights and denies congressmen’s requests for answers concerning the inexplicable dismissal of the voter-intimidation case in Philadelphia against the New Black Panther Party (NBPP), the more reasonable people wonder what the administration has to hide. And so it is appropriate now to ask: What did the White House know and when did it know it?

Perhaps the single most important question that the Department of Justice (DOJ) and the White House are refusing to answer in the growing scandal (for the stonewalling and subpoena violations make it a scandal) is which political appointees were involved in the obviously wrongful decision to dismiss the lawsuit -- a civil suit filed under the Voting rights Act of 1965. Newly released White House visitor records present strong circumstantial evidence of White House involvement in what should have been an independent and impartial law-enforcement decision.

The facts of the voter-intimidation case have been widely reported. There is even a video of NBPP members outside a polling place; they are dressed in paramilitary uniforms, and one of them is waving a nightstick. Poll watchers also reported that they were hurling racial epithets at elderly voters, some of whom were quite afraid. When the DOJ filed suit last January, the NBPP did not deny the charges, and the veteran trial lawyers were preparing a default judgment and broad injunction. So it is completely inexplicable from a legal point of view why the career lawyers in the Civil rights Division were suddenly ordered in May to dismiss the lawsuit against the NBPP and all but one defendant. The injunction against the remaining defendant is a joke, for it does not prohibit him from wielding his weapon in polling places outside Philadelphia or from yelling racial epithets and blocking entrances to polling places anywhere. There is also nothing to stop the NBPP from organizing the same type of harassment in future elections.

On December 30 -- a time of year when most people’s attention is not on the news -- the administration released the latest list of White House visitors. Going through the list takes quite a while, but doing so reveals some rather startling “coincidences” -- meetings between Justice Department political appointees known to be involved in the dismissal and a White House deputy counsel that coincide with key dates in the New Black Panther saga. Some of the meetings appear to have followed a regular schedule. Others were set up on short notice and break from the pattern in unusual ways, particularly as they are matched up against some known or reported facts in the NBPP litigation.

In reviewing the data, keep in mind that internal DOJ memos and news reports establish that the career lawyers in the Voting Section working on the case were overruled by Obama political appointees. But who exactly was involved? The Washington Times reported that Associate Attorney General Thomas Perrelli, the No. 3 official at Justice, “was consulted and ultimately approved a decision in May to reverse course and drop a civil complaint.” The DOJ has not denied this, but it also won’t say if Perrelli was the highest official involved.

Loretta King, the acting assistant attorney general for civil rights, was also involved in ordering the career Voting Section lawyers to dismiss the suit and was in communication with Perrelli. So what else can we piece together?

The newly released White House records show a series of meetings between Perrelli and the then White House deputy counsel, Cassandra Butts, some also involving Spencer Overton, the deputy assistant attorney general for the Office of legal Policy at the Justice Department. All of these Obama political appointees were actively involved with voting issues in their previous jobs.

Perrelli was extensively involved in some of the Democratic Party’s biggest redistricting fights as a private attorney. Butts used to work at the NAACP legal Defense Fund and has described herself as being “as close to Barack as anyone in law school.” When Butts was at the Center for American Progress, she complained on CAP’s blog about John Ashcroft allowing conservative views to influence decisions in the Civil rights Division and specifically the Voting Section.

Spencer Overton is a George Washington University Law School professor who considers himself an “expert” on the Voting rights Act and is one of the most partisan individuals in the so-called “vote reform” community. He has relentlessly attacked Republicans as “vote suppressors” and “intimidators” in demagogic publications like Stealing Democracy: The New Politics of Voter Suppression.

The NBPP voter-intimidation lawsuit was filed in January 2009, just before the Bush administration left office. Court records show that Justice lawyers notified the court on April 1 that the defendants had not answered the lawsuit, which is the preliminary step necessary to obtain a default judgment. On April 2, the clerk in the federal court in Philadelphia entered notice in the record that the defendants were in default.

That was about the same period of time when Kristen Clarke, on behalf of the NAACP legal Defense Fund, was circulating copies of the complaint and reportedly demanding that the Obama administration dismiss the lawsuit. Did she call her former NAACP colleague in the White House counsel’s office? Did she try to have other politically powerful people make calls to get the suit dismissed? We don’t yet know for sure, but just a week later, on April 8, Thomas Perrelli was meeting with Cassandra Butts and Spencer Overton at the White House.

On April 17, the judge in Philadelphia took notice of the failure of the NBPP defendants to answer the lawsuit by issuing an order giving Justice until May 1 to file its request for a default judgment. On May 1, however, Perrelli met in the West Wing with Butts and Overton at 2 p.m.; later that same day, the trial team on the NBPP case suddenly filed a request for an extension of time -- instead of a motion for default -- telling the court that it needed additional time to draft an “appropriate” default judgment order.

This was a bizarre request and bizarre timing. Justice had had a full month to draft a proposed order, something that the experienced lawyers on the case could have done in a few hours. It appears they were ordered at the last minute to ask for an extension, instead of completing what they had set in motion on April 1 when they first told the court that the defendants were in default. The judge gave Justice an extension until May 15 to file its motion for default judgment.

Right after May 1, there was a request from higher-ups for a second, very extensive case memorandum, which was given to Loretta King on May 6 by the trial team. Later that day, at 4:30 p.m., Perrelli met with Butts and another, unnamed White House official.

On May 13, two days before the court’s deadline, King received a third important memorandum on the case. Apparently, she had asked the Civil rights Appellate Section for another review, a very unusual procedure, no doubt hoping the liberals in that section would find that there was no merit to the case. However, the chief of the Appellate Section, Diana Flynn, concluded on May 13 that the suit was meritorious and that there was no reason to dismiss the suit. Yet that same day, at 2 p.m., Perrelli again met with Butts and another White House official. We know what resulted from that meeting -- an order to dismiss the case. The trial lawyers who had to prepare the dismissal motions probably have a record of when they were ordered to do so. Was it late on May 13?

Despite all the evidence of intimidation and the unanimous conclusions of the career lawyers who actually worked on the case, the Appellate Section lawyers who carefully scrutinized the relevant facts and law, and each of their respective supervisors that Justice had a solid case, the DOJ dismissed the lawsuit against all but one defendant late on May 15 and sought only an extremely limited remedy against the remaining defendant.

There is certainly other evidence known to the career trial lawyers at the DOJ that could make the circumstantial links with the White House much stronger. The DOJ has reportedly ordered several of the trial lawyers to disobey subpoenas issued by the U.S. Commission on Civil rights, but the subpoena fight is ongoing. Because the DOJ by statute is supposed to enforce the commission’s subpoenas, and instead is actively thwarting them, the DOJ is caught in an outrageous conflict of interest that cries out for condemnation.

The NBPP story broke on the front page of the Washington Times on May 29. The reporters had earlier called DOJ officials to get the department’s position, and no doubt the reporters have a record of when they called for comment. Two days before the story broke, when Justice likely knew it was coming, Perrelli was once again at the White House -- but this time he was meeting with Gregory Craig, who was then President Obama’s White House counsel, and another unnamed White House official.

Finally, on July 30, although the Justice Department had all along been asserting that career lawyers had made all the decisions in this case, the Washington Times ran a story revealing that Perrelli was “ultimately consulted and approved” the decision to reverse course and drop the lawsuit. The White House records show that an appointment was made that very day for a meeting between Perrelli and Cassandra Butts; the meeting took place the next afternoon. The records also show Perrelli meeting with Catherine Whitney, executive assistant to Gregory Craig, on July 24 and 27, at the same time, almost certainly, that Washington Times reporters were calling the DOJ as they were preparing the July 30 story.

During the summer and into the fall, this case received more and more attention. The U.S. Commission on Civil rights opened an investigation and sent a series of letters to the Justice Department starting in June requesting information and documents on the dismissal. Reps. Lamar Smith (R., Tex.) and Frank Wolf (R., Va.) also sent a series of increasingly angry letters to Justice asking for information and complaining about the department’s stonewalling. Perrelli met with Butts and Associate White House Counsel Danielle Gray on various other dates that may prove relevant to the NBPP cover-up. Those dates are not yet tied to events in the NBPP saga that are currently public, but additional information may come to light in the near future.

Butts resigned as a deputy counsel in November to be a “senior adviser” to the CEO of the Millennium Challenge Corporation, in what appears to be a demotion to a minor government post. What remains unanswered is how much involvement the White House had in the decision to dismiss the NBPP case and what Perrelli, Butts, Overton, and the others were discussing in their meetings that coincided with key events in the NBPP case.

All of this is circumstantial evidence, of course. But as any good Justice Department prosecutor can tell you, there are many people in prison whose guilt was proved beyond a reasonable doubt on the basis of circumstantial evidence alone. As Thoreau said, “Some circumstantial evidence is very strong, as when you find a trout in the milk.” We can safely assume the trout did not jump into the milk, and we can reasonably assume that the White House would deny involvement in the NBPP scandal if it in fact was not involved. Perhaps all of Perrelli’s meetings had nothing to do with the NBPP case; perhaps Perrelli and the White House officials were discussing the latest Washington Redskins loss. Or perhaps not.

It’s also important to understand that the radical civil-rights establishment, to which Perrelli, Butts, Overton, and Clarke belong, don’t believe in color-blind enforcement of the Voting rights Act. Nor do they believe that all voters should be protected from discrimination. They were apoplectic when the Bush administration filed, and won, a voting-rights case against black officials in Noxubee County, Miss. They made it very clear that the Voting rights Act should be used only to go after white officials, and that it was blasphemy to use it to protect white voters -- no matter what the circumstances. The NBPP case in Philadelphia infuriated them just as the Noxubee case did.

Did White House officials order Perrelli to dismiss this case? If so, which officials? These questions may help explain why the Justice Department has refused to provide almost any information about this case, despite clear law that it must “cooperate fully” with the Commission on Civil Rights. The department is even asserting privileges that do not exist in response to the commission’s subpoenas, such as the need to protect against disclosures that would “undermine its ability to carry out its mission.”

Last week, the Democrats in the House Judiciary Committee voted not to support their fellow congressmen who want answers. What hypocrisy! Remember the dozens of hearings and subpoenas by congressional Democrats over the firing of the U.S. attorneys during the Bush administration, and their demands for answers from the White House? During the Obama administration, Democratic members of Congress want to hear no evil and see no evil about politicizing law-enforcement decisions in the Justice Department.

That said, it should be noted that almost no Democrats on the House Judiciary Committee actually spoke against investigating the NBPP dismissal -- which must have made the administration nervous. The Democrats offered one last almost silent vote for the cover-up, but they know the other shoe might drop soon. Chairman John Conyers suggested to the committee’s Republican members that he might support hearings if the DOJ did not provide answers. Even if the White House visitor records are not the other shoe themselves, it may not take much more digging to make the picture complete. Then what will the White House say? That the system (to politicize law enforcement) worked?

Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

First Appeared in National Review Online