Judicial Watch made an explosive announcement today about the Justice Department’s stonewalling in the New Black Panther voter intimidation case dismissal. Forced to bring a Freedom of Information Act (FOIA) lawsuit after DOJ rebuffed its public records request (so much for transparency), Judicial Watch obtained a privilege log from the DOJ last week.
It shows — in a rather dramatic way — that the DOJ has been untruthful about who was involved in the dismissal of the case.
In July, I complied with a subpoena and provided testimony to the United States Commission on Civil Rights. I did so in part because inaccurate statements had been made about the case by DOJ officials. Some of these statements falsely claimed that ethical rules mandated the dismissal of the charges against the New Black Panthers. This was nonsense.
But the real whopper? DOJ’s claim — repeated over and over again — that career civil servants were wholly responsible for the spiking of the case.
Today we learn, from the Department’s own records, that this claim is demonstrably false.
The privilege log produced in the FOIA litigation contains stunning entries. They show regular discussions and deliberations between the highest political officials inside the DOJ, including the deputy attorney general and the associate attorney general, about what to do with the case. This contradicts numerous statements made to Congress, the Civil Rights Commission, and to the public.
Some of these statements were under oath.
For example: on May 10, 2009, the third highest-ranking official inside the DOJ — Associate Attorney General Tom Perrelli — emailed Sam Hirsch, one of his deputies:
Where are we on the Black Panther case?The description of the email contains a bombshell:
asking for update on the NBPP litigation between officials in the [Associate’s office] and noting the [deputy attorney general’s] current thoughts on the case.The deputy attorney general is the second highest-ranking official in the Department. The use of the term “current thoughts” infers that there were prior thoughts and ongoing discussions with the second highest-ranking political official at DOJ about how to handle the case.
Further, the logs show dozens of communications between senior DOJ political officials in the two weeks prior to the dismissal of the case.
Congress and the public have been told — for over a year — that the dismissal of the New Black Panther case resulted from nothing more than a dispute between lowly career civil servants. Lapdog reporters have repeated this lie, if they even covered the case at all. The documents uncovered by Judicial Watch expose the ruse.
Rarely in our nation’s history have officials in the Department of Justice engaged in a dishonest misinformation campaign to Congress, the public, and other fact-finding tribunals. Thankfully, these few episodes have been confined to the darkest and most corrupt eras of the republic.
Sam Hirsch is a former Democratic Party operative, and one of the most partisan election law attorneys in the entire nation. He worked for the Democratic Party in numerous redistricting fights, trying to squeeze every last drop of partisan advantage from plans in places like Texas. He has led efforts to impose racial divisions on Hawaii by creating native classifications and powers — and he is proud of it. He was heavily involved in the Obama presidential campaign.
As deputy associate attorney general — a senior Obama political appointee — Hirsch emerges in the privilege logs as the fulcrum around which the New Black Panther case was dismissed. Throughout April and May 2009, Civil Rights Division political appointee Steve Rosenbaum engaged in extensive legal analysis with Hirsch. In turn, Hirsch had extensive communications with Associate Attorney General Perrelli about the case.
The emails are sometimes described as “deliberations” between the senior political appointees. These are deliberations which the DOJ inferred never existed. Nothing more than a dispute between civil servants, they repeated without equivocation.
The privilege logs show at least thirteen communications between Hirsch and Perelli in the two weeks before the dismissal on May 15.
On April 30 alone, Hirsch and Rosenbaum communicated at least eight separate times about the case. This occurred the day before the Voting Section decided not to seek a final injunction, and instead asked the court for a two-week delay. Someone, somewhere, didn’t want the easily obtained victory by default. Perhaps it was now-resigned Deputy Attorney General David Ogden. After all, he had some “current thinking” he was eager to share. Perhaps it was someone else.
On May 8, the same day that the logs show the Voting Section provided its analysis supporting a full remedy against all four defendants, Rosenbaum immediately forwarded the Voting Section’s work to the associate attorney general’s office. It’s clear from the logs who was calling the shots — and it wasn’t the career civil servants. Rosenbaum looks like an errand boy, nothing more.
The logs also show extensive communications between Rosenbaum and multiple lawyers inside the Civil Rights Division’s Appellate Section. Apparently Rosenbaum was looking for a second opinion to back up political hostility to the case. He never got it.
According to the logs, the Civil Rights Division’s Criminal Section was also recruited to help kill the case. On May 12, Rosenbaum wrote an email to political appointee Hirsh, which the privilege log describes as follows:
[Rosenbaum] provides [Associate AG] in charge of CRT with requested follow-up information and confirmation that additional actions would be conducted by Criminal Section Chief per his request.The logs reveal a full court press to find someone, anyone, willing to provide a death blow to the case with the imprimatur of the civil service.
They never got it.
Political officials Rosenbaum and Hirsch communicate an additional twenty-two times in the days before the case is finally dismissed on May 15. Hirsch even had to review the scaled-down final order which prevents King Samir Shabazz from brandishing a weapon until 2012, and only in Philadelphia.
Reading the logs, one is struck by the level of intimate involvement by the highest-ranking political officials at the DOJ. Frankly, the level of political coordination saddened me, especially given the countless statements to Congress and the public characterizing the decision as having been made only by civil servants.
For example, DOJ press spokesperson Tracy Schmaler has crowed about the Panther dismissal being made solely by career civil service attorneys, and the resulting controversy being nothing more than a “disagreement among career attorneys.” False. Assistant Attorney General Thomas Perez repeated the same mantra to the Civil Rights Commission. Again, not true.
When Justice Department officials deliberately misrepresent facts to the public and to Congress, there must be consequences.
Schmaler is the same press spokesperson who accused me of deliberately misrepresenting facts to advance an agenda. My testimony was under oath. I gave up a great job at the Department so I could truthfully comply with a subpoena. My only agenda is the truth.
Schmaler, or another Justice official, told Fox News that I had been reassigned to other duties and was therefore a disgruntled employee. This was laughably false. I hadn’t been reassigned anywhere — instead, I had been promoted two weeks before I resigned, and had the same duties with a GS-15-9 pay grade. When I heard this lie, I was astounded that someone at DOJ would not only breach personnel privacy policies, but engage in gutter tactics so completely divorced from the truth.
General Holder should ensure that the first obligation of his press shop is to tell the truth, then spin afterwards. And reporters dealing with Tracy Schmaler should be cautious.
The logs show political officials Hirsch and Rosenbaum, and a press spokesperson, swinging into action as soon as the press reported the dismissal on May 28, 2009. “Response to Malkin” shows up on May 28 — they were coordinating a response to Michelle Malkin’s exclusive breaking the story of the outrageous dismissal. These communications are characterized by the log as “pre-decisional,” and therefore protected. Of course, the decision to dismiss the case had already been made. I can’t wait to see what the court does with that in the FOIA litigation. (Though I suppose the decisions about how to cover up the truth of the dismissal were in the formative, pre-decisional process.)
If Congress ultimately suspects that they were lied to, they might scrutinize an undated entry: Karen Stevens is listed as an author of “talking points for the Attorney General regarding the DOJ’s handling of the NBPP litigation and the decision to drop charges.” She should get a subpoena from Congress next year also.
Similar entries evidencing the creation of an ultimately dishonest spin are throughout the log.
I would not be surprised if the log omitted documents. Inspector General Glenn Fine’s investigation of the Voting Section should include an inquiry into whether the Department is fully responsive to various requests from Congress, the press, and the Civil Rights Commission.
The log provided by DOJ to Judicial Watch contains numerous unidentified documents. The listing provides no information whatsoever about these documents, as the identity of both the authors and recipients are omitted. Congress might also demand to know what all the untitled, undated entries are in the log.
Today was a very bad day for the Justice Department, but a worse day for our country. The privilege logs show what most Americans suspected all along: that the Department was lying, and the corrupt dismissal of the New Black Panther Case was made high up the political chain of command.
Let’s see if the Department’s defenders in the press and on the Civil Rights Commission keep repeating the lies.
J. Christian Adams is an election lawyer who served in the Voting Rights Section at the U.S. Department of Justice. His website is www.electionlawcenter.com.
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