A conservative watchdog group says new "explosive" documents show top political appointees within the Justice Department "orchestrated" the dismissal of a civil rights case against two black defendants, but even critics of the Justice Department's handling of the case say the documents raise more questions than answers and don't add "any particular new facts to the table."
"At this point, I wouldn't see these as earth-shattering," said one Republican source who has been following the matter closely and has questioned the Justice Department's motives in the case. "In and of themselves these documents don't show anything conclusively one way or the other."
On Monday, the group Judicial Watch announced it had obtained highly-redacted documents related to the Justice Department's decision in May 2009 to reverse course on a federal lawsuit against two members of the New Black Panther Party. The 31 pages of documents include emails between Associate Attorney General Tom Perrelli, the Justice Department's third-in-command, and other political appointees within the department.
In an April 30, 2009, email, Justice Department official Sam Hirsch told Perrelli they "need to discuss" the New Black Panther Party case soon. Two hours later, Hirsch sent an email to Civil Rights Division official Steve Rosenbaum thanking him "for doing everything you're doing to make sure that this case is properly resolved." And two weeks later, according to the documents, Hirsch sent an email to Perrelli with a subject line referencing "your questions."
Asked repeatedly about the nature of Perrelli's questions, Justice Department spokeswoman Tracy Schmaler declined to answer.
In a statement, Judicial Watch said the documents show "the New Black Panther decision [was] shamelessly politicized by the Obama administration" and "provide new evidence that top political appointees at the [Justice Department] were intimately involved in the decision to dismiss the voter intimidation case," which stemmed from video on Election Day 2008 capturing two New Black Panther Party members at a Philadelphia polling place.
Both Schmaler and Republicans who have been critical of the department's actions in the case said the documents do not necessarily indicate wrongdoing, noting that Perrelli would normally be notified of such decisions.
"In a case of this magnitude, it's obvious what's going on. Perrelli is being looped in on the key decisions to make sure that he's aware of it and comfortable with it," said a former top-ranking Justice Department official under the George W. Bush administration. "It shows that the Associate Attorney General [Perrelli] was made aware of the legal arguments, the litigation strategy, and certainly appears to have been asking questions. It certainly bespeaks involvement."
But, the former official said, "the right question" concerns the nature of that involvement and the motives behind it.
"It's a little harder to draw more specific conclusions about 'Person A recommended such and such, and Person B recommended something different,'" the former official said.
The other Republican source, who has been following the matter closely, said he "would agree completely with those comments."
"Clearly there's some kind of involvement by the politicos," the source said. "Do these documents show that Tom Perrelli and the White House directed the outcome? No."
The source said the documents are not a "smoking gun in any way, shape or form," but their disclosure continues to raise questions about the case and "continues to suggest that a closer look needs to be taken."
Schmaler, the Justice Department spokeswoman, said, "Whenever there is a decision involving a case like this, it is routine for staff to make sure supervisors are aware of the decisions being made."
Still, Judicial Watch said the new documents obtained "directly contradict sworn testimony by Thomas Perez," the Justice Department's Civil Rights Division chief who testified under oath that "no" political leaders were involved in the decision to cease pursuing the case any further.
The former Justice Department official said Perez "obviously had to know or should have known" that political appointees were involved, agreeing with Judicial Watch that Perez should not have made a "blanket statement of no involvement" when testifying in May to the U.S. Commission on Civil Rights, whose conservative majority is leading an investigation into the matter.
Perez, however, did acknowledge during his testimony that, "Whenever there is a decision involving a case that has attracted attention, when the decision is made, we obviously communicate that up the chain."
The latest batch of documents comes several weeks after Judicial Watch obtained a so-called "Vaughn index" from the Justice Department, outlining the recipients and senders of emails leading up to the decision in the New Black Panther Party case. The contents of those emails were not provided to Judicial Watch.
Controversy over the New Black Panther Party case came to a head during the summer after two attorneys heavily involved in the initial filing of the case, including one still with the Justice Department, testified that it was all part of a "hostile" attitude by the Obama administration toward "race-neutral enforcement" of voting rights laws, an allegation the Justice Department has repeatedly denied.
While attorney Christopher Coates only vaguely addressed the New Black Panther Party case and refused to discuss any specific internal discussions during his testimony to the U.S. Commission on Civil Rights in September, he insisted there is a "deep-seated opposition to the equal enforcement of the Voting Rights Act against racial minorities and for the protection of white voters who had been discriminated against."
Asked whether the latest documents obtained by Judicial Watch offer any insight into that allegation, the former Justice Department official said one can "certainly conclude that the political appointees were in agreement with or comfortable with the ultimate disposition of the [New Black Panther party] case."
"Obviously, you would not have a situation where they were brought fully up to speed on the legal arguments, they asked questions, they had vigorous debate at odd hours about what was going on, and then the ultimate resolution was one with which they disagreed," the official said. "[But] we just don't have the information to know what kind of factors went into the decision."
In April 2009, the Justice Department won a default judgment against the two New Black Panther Party defendants, who on Election Day 2008 were dressed in military-style uniforms. One was shown on videotape carrying a nightstick. In May 2009, though, the Justice Department filed a motion to dismiss charges against the man not seen carrying a nightstick, saying a lack of sufficient evidence meant the case against him wouldn't stand up in court. The Justice Department successfully pursued an injunction against the other man. He is barred him from carrying a weapon within 100 feet of an open polling place in Philadelphia.
House Republicans have promised to launch their own investigations into the matter now that they're in control of Congress.
The Justice Department's Office of Professional Responsibility is already looking into the handling of the case, and the department's inspector general has announced he is investigating "more broadly the overall enforcement of civil rights laws by the Voting Section" of the Civil Rights Division, including "information about cases such as the New Black Panther Party matter and others."
As for the U.S. Commission on Civil Rights investigation, commissioners are expected to vote on their final report within the next few weeks. The final report's recommendations are expected to focus largely on the commission's authority to compel testimony from witnesses like Coates, who had been directed by the Justice Department not to testify.
During a recent meeting of the commission, conservative commissioner Todd Gaziano accused the Justice Department of "unprecedented stonewalling" for refusing to hand over thousands of documents and "critical emails" requested by the commission.
"They have dragged out their non-responses, and they have made up a series of humorous [excuses] that would make Nixon in his grave proud," Gaziano said. "If you stonewall, and you hide the documents that would otherwise support your case, reasonable people are going to suspect you have something terrible to hide."
He described Coates' allegations as "historic whistleblower testimony."
But liberal commissioner Michael Yaki, who recently blocked a vote to approve the report by refusing to attend a hearing two weeks ago, said witnesses "who are part of the old Bush regime" have "been cherry picked" and "statements have been culled in a way to completely slant the presentation of the evidence."
Yaki called the New Black Panther Party "racists, ideologues, idiots," and he acknowledged that the actions of the two men at the Philadelphia polling station in November 2008 were "stupid" and "probably unlawful in the way they harassed the poll monitors who did show up." But, he said, the conservative-led commission is "completely missing the boat with regard to what's important to this country, and what's important to the historic mission of the commission," including addressing the growing backlash against gays, Muslims and immigrants in the United States.