More on DOJ documents and DOJ statements about case

The Tuesday Washington Times chimes in.

EDITORIAL: Black Panther case roars back to life

New evidence undermines Justice Department spin

By THE WASHINGTON TIMES

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The Washington Times

 

Thomas E. Perez, assistant attorney general for civil rights, is in big trouble. The public-interest group Judicial Watch yesterday released a 62-page index of documents regarding the New Black Panther Party voter-intimidation case that undermines the credibility of Mr. Perez and of the Department of Justice under Attorney General Eric H. Holder Jr.

 

For more than a year, The Washington Times has been reporting that Mr. Holder’s top political appointees intervened to force the abandonment of serious sanctions against the Black Panther members who threatened voters at a Philadelphia polling place on Election Day 2008. The Justice Department denied the claim, with spokesman Tracy Schmaler asserting to the contrary that only “career employees” engaged in what supposedly was a decision based entirely on “the facts and the law.” On May 14, Mr. Perez swore under oath before the U.S. Commission on Civil Rights that there was no “political leadership involved in the decision not to pursue this particular case any further than it was” and that it was only “a case of career people disagreeing with career people.”

As was seen when a host of outsiders accused the George W. Bush administration’s Justice Department of firing U.S. attorneys in order to interfere with ongoing investigations, it is improper for cases to be dismissed for purely political reasons. The Obama administration should be held to the same standard.

 

Rather than cooperate with requests for more information, the Justice Department claimed that all its documents related to the Black Panther case were “privileged.” A court ordered it to provide Judicial Watch a list of withheld documents with an explanation for each “privilege” asserted. Even the attenuated list sheds new light on the situation. By our count, Deputy Associate Attorney General Sam Hirsch, not only a political appointee but previously a top, cutthroat election attorney for the national Democratic Party, sent or received 58 e-mails about the case. The “description of withheld information” provided by the Justice Department indicates that Mr. Hirsch weighed in on the decision to drop the cases.

 

At least a dozen of Mr. Hirsch’s e-mails went back and forth up the chain of command to Associate Attorney General Thomas J. Perrelli, not down to people that the department now calls “career employees” (who themselves at the time were filling political positions). The list also shows that Deputy Attorney General David W. Ogden was involved by contributing “current thoughts” on the matter. The office of Attorney General Holder was kept in the loop as well. These are all political appointees.

 

Much more can and will be said about the gold mine of information unearthed by Judicial Watch, which continues to press for the release of more documents. For now, this much is clear: The department’s claim that political appointees were not involved in the case appears to be false. If so, Mr. Perez should be held to account for his sworn statements to the contrary.

Kudos to the talented and inspiring Craig Brown

I had the pleasure of meeting a talented and inspiring songwriter during a speech in Michigan last week and haven’t had the time to post about his work.  He performed his song “We Are America” at the event where I spoke.  The song was recorded in Nashville and it was a real honor to meet Craig. His website is weareamerica.net.  In the video for the Craig’s song embedded below is a poster from WWII that has soldiers from Ft. Moultire in South Carolina.  An article about that amazing event is here.

 

DOJ military voting enforcement: failed to give the full measure of their devotion

The mess surrounding 2010 military voting rights enforcement is coming to a rotten conclusion. On Friday the DOJ announced settlements against states that were not in compliance with the MOVE Act. Friday was the day before ballots were required to go overseas to military voters. In some of the settlements, the ballots aren’t going to go on time.

These Friday news releases are becoming a pattern.

On Friday, the Justice Department reached agreements with Hawaii, Colorado, D.C. and the Virgin Islands in response to their failure to comply with the MOVE Act. MOVE requires ballots to go 45 days in advance of the election – there are no exceptions in the law, no ability for DOJ to rewrite the law. These jurisdictions have been out of compliance since their legislatures went out of session without fixing their laws. Justice took no action – except to wait.

Hawaii and the other states entered into a sweetheart settlement with Justice Friday that allowed them to ignore the MOVE Act while other states like Florida and Vermont took steps to come into compliance with the new law. Worst of all, Justice undermined the decision of the Pentagon to deny these states waivers – and rewrote the will of Congress and changed the law on their own, reducing the time period below 45 days that states must send out ballots.

Instead of mailing ballots 45 days before the election – Justice effectively rewrote the law and allowed ballots in D.C. to mail out 29 days in advance, 16 days fewer that Congress required. In the Virgin Islands, it is 30 days in advance. In Hawaii, Justice rewrote the law and allowed ballots to go out 39 days in advance.

In response to Keystone Cops enforcement of military voting rights at the DOJ, Texas Senator John Cornyn has blocked the nomination of the Number Two man at Justice, James Cole. The administration was desperate to see Cole confirmed last summer, but upon learning about the mess simmering at the Justice Department, Cornyn blocked the nomination. Cornyn should keep the hold in place until the 2011 Election Assistance Commission report data are available which will let everyone know how bad the mess is or isn’t. It will track the number of ballots that were requested and successfully returned, or didn’t get counted. Only after of a review of this data should the hold be lifted.

Could Justice have done something differently to protect military voters? Lots. For starters, DOJ never provided input to the draft Pentagon waiver guidance to the states. The waiver guidance should have been in place in June so states would know whether a waiver might be available, or not. It would have allowed states that relied on a waiver, like Hawaii or Alaska, to cure the defects well before the eve of the disaster in late August. Instead, a voting section manager never provided a written response to the Pentagon’s request to review the waiver guidance, and no guidance was ever issued as a result. In the real world, that would lead to a firing. But we all know the government isn’t the real world.

The Department could have also sued the states in the early part of the summer possibly to get a remedy in place earlier than the day BEFORE the ballots had to go out. But the states might seek a waiver!, they argue. Poppycock. Sue them and hold the matter in abeyance until the waiver process sorts out. It’s called strengthening a negotiating position. Showing someone you are serious usually yields better results in litigation. Showing you aren’t produces the opposite. Others will be writing in the future about the deep aversion to bringing lawsuits in this area of the law, and why it has plagued military voting enforcement in the past. There are very specific reasons why there is an aversion to litigating military voting cases, and the public has a right to know why.

And the last thing the Department of Justice could have done in places like D.C. and Wisconsin was to ask for an injunction requiring compliance with the law, not the law the DOJ made up on Friday, but the real law. If a judge denied it, so what, at least the DOJ would give the full measure of their devotion to the cause.

Apparently that’s something we only expect from men and women in uniform.

Take the Hawaii settlement for example. Hawaii and the Voting Section of the Department of Justice together undermined the MOVE Act (and while the media trumpets that express mail and fedex solve the problem), they ignore two problems that undermine the spin.  Despite the DOJ press release praising the agreement, Hawaii is only required to mail out ballots on September 24, 2010 – 39 days prior to the election. And the ballots are all due back on Election Day – no excuse, no extension, no exceptions, out of luck Major Marine in Afghanistan. Not only is Hawaii not meeting the 45 days deadline required by federal law with no waiver required by DOD, but the only remedy DOJ sought is express mail which does not decrease the transit time for military overseas voters who use the military postal service. There will be no additional time to provide for a 45 day total transit. Great job Justice. The tough negotiating stance yielded superb results.

DOJ simply waited too long to act. That’s why the settlement in Hawaii and elsewhere fells short of the law. It is the same story every two years at DOJ.  Instead, they should have asked a judge in July to force total compliance with the law. Again, others will be writing in time about the very particular aversion to enforcement of military voting laws and what impediments exist to protecting military voters within Justice. Hawaii had shown signs early this year of not being able to meet the requirements of MOVE yet there was no action.

This reminds us that earlier in the year, a Justice official spoke to state election officials. The DOJ official downplayed DOJ’s interest in enforcing the law. “Bringing a lawsuit is the last resort” or “the MOVE Act is ambiguous” state officials were told by the DOJ official. Election officials who were there told the Washington Times they simply could not believe what they were hearing. It was an invitation to ignore the law, to them. This state official said that everyone got the message loud and clear – they didn’t need to worry because DOJ wouldn’t be aggressive.  This mess rests at the foot of the bureaucrats in the Department of Justice and the political leadership at DOJ. Congressional oversight hearing next year will be very interesting.

Over the next months and years, the public will benefit from a complete and detailed explanation from people with direct experience litigating these cases inside the Department – why this mess happened. Citizens can demand members of Congress do the same. The performance in 2010 to protect military voters was an embarrassment for the DOJ that can’t happen again.