Last December, U.S. Attorney General Eric Holder told the Justice Department’s Office of Professional Responsibility exactly what it should find in investigating the department’s dismissal of a voter intimidation case against the New Black Panther Party: Nothing!
Holder was quite open about it. In an interview with the New York Times, he essentially said that Justice had done the right thing on the NBPP case. Given that public comment, it would be surprising if Holder’s recently appointed head of OPR, Robin Ashton, bucked her boss. This week, she surprised no one, reporting to Congress that there was nothing amiss about the department’s decision to drop a case it had already won.
The only surprise was that Holder seemed to feel he needed to signal OPR on how he wanted it to rule. After all, the office has an unfortunate history of biased and partisan investigations. I predicted this result back in January after Holder appointed Ashton, a hyperliberal lawyer who at one time worked for Sen. Patrick Leahy, the Vermont Democrat who is chairman of the Senate Judiciary Committee.
Ashton’s letter to Congress summarizing OPR’s findings glosses over the crucial flaw in their investigation: OPR “did not attempt to evaluate the relative merits of their differing positions.” By “their,” she means the lawyers on the trial team who investigated and litigated the case vs. the supervisors, such as Loretta King, who ordered the case (which the defendants had lost by default) dismissed without explanation.
Evaluating the merits of substantive legal issues is not a strong suit at OPR. Its incompetent analysis of the legal work done by Bush administration lawyers John Yoo and Jay Bybee on interrogation techniques led Senior DOJ career attorney David Margolis to reject its findings and strongly criticize the office’s conduct.
Thus, there was never much hope that OPR could conduct a competent legal review in the NBPP case. Still, it’s unclear how OPR could determine that no improper influences were at play if it never evaluated what the proper legal decision should have been.
Additionally, it’s clear from the letter that OPR lawyers talked only to Justice Department officials. White House visitors logs released more than a year ago show DOJ political appointees known to be involved in the dismissal met with White House counsel during key dates in the NBPP saga.
Yet OPR now admits that it never talked to anyone in the White House who may have been involved in this case.
Ashton fails entirely to mention Justice’s unlawful refusal to provide documents and witnesses subpoenaed by the U.S. Commission on Civil Rights. Yet not responding to subpoenas and instructing Justice lawyers to ignore them is per se unprofessional conduct, as explained by Commissioner Todd Gaziano in his concurring statement in the Commission’s Interim Report.
It is time for Congress to step up and conduct real hearings into what happened in this case. Lawmakers should demand all of the documents and email communications that Holder has refused to turn over for almost two years.
Moreover, witnesses such as Christopher Coates (who was removed as the head of the Voting Section after he complained about the dismissal) should be allowed to testify not just about the NBBP case, but about the Obama administration’s larger policy against race-neutral enforcement of voting rights laws.
A faux OPR investigation whitewashing the behavior of Obama administration loyalists is, sadly, no surprise from this Justice Department. These lawyers have given the New Black Panthers a green light to intimidate, threaten, and interfere with voters in future elections — like 2012, when President Barack Obama will be fighting for his political life.
Hans 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.