The U.S. Commission on Civil Rights approved Friday its latest report on the Justice Department's handling of a controversial civil rights case, even though the report makes no findings related to the case or the larger question of whether the Justice Department enforces civil rights laws in an even-handed manner.
The move marked what is likely to be a parting shot for conservative members, who are expected to become the minority and lose control of the commission in December.
For more than a year the commission has been investigating why the Obama administration reversed course on a federal lawsuit against two members of the New Black Panther Party, who some say intimidated Pennsylvania voters on Election Day 2008. The Justice Department sent its Civil Rights Division chief to testify and provided thousands of pages of documents to the commission, but some members still accuse the Justice Department of "stonewalling" by withholding what they describe as "highly relevant" documents and information.
"We cannot in good faith come up with a comprehensive report," Republican commissioner Peter Kirsanow said during Friday's hearing before the vote. "I suspect that one of the reasons why we have not been getting this information is because ... in a couple of weeks the composition of this commission is going to change. At that point, there is a fairly good likelihood that this investigation would cease."
The commission's investigation expanded -- and heated up -- 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. The Justice Department has repeatedly denied such allegations, pointing to a case currently being prosecuted involving a black defendant who allegedly tried to disenfranchise white voters.
Nevertheless, the latest report approved Friday apparently draws heavily from allegations made by the two attorneys, with the report saying their testimony "provides a possible explanation" for the ultimate disposition of the New Black Panther party case and "may explain why the Department refuses to provide information that would allow the Commission to complete its job."
"They indicated that there is currently a conscious policy within the Department that voting rights laws should not be enforced in a race-neutral fashion," said a rough draft of the report obtained last month by the website TalkingPointsMemo. "The nature of these charges paints a picture of a Civil Rights Division at war with its core mission of guaranteeing equal protection of the laws for all Americans."
But Democratic commissioner Michael Yaki, the sole dissenting voice to attend Friday's vote, said it is the commission itself that is at war with its core mission, insisting the commission's year-long investigation has been "reckless" and a "travesty of justice."
"Our job is not to sit around and play 'gotcha' with the Department of Justice," Yaki said. "We have been ignoring what is happening in the real world. Young gay men and women are being bullied to death because of their sexual orientation, [and] there is still violence going on against people of color because of what they look like, how they speak."
Alleging "omission" and "suppression" of "key facts," Yaki said the "bias" in the report is quite "astonishing." Sworn testimony by Justice Department attorney Christopher Coates and former attorney J. Christian Adams, both critics of the Obama administration, are regarded in the report as "the immaculate words coming down on us ... with nothing that can be challenged about them," but others' sworn statements disputing their testimony are "put in the footnotes, disregarded, pretty much ignored," according to Yaki.
In addition, he said, the continuing case of Ike Brown, a Democratic official in Mississippi accused of devising a scheme to disenfranchise white voters, "just vanishes" in the report.
"The one immutable fact, the one proof, the one action that you can point to that shows that Justice is in fact enforcing the laws in a race-neutral fashion basically takes a dive," Yaki said of the report, which has yet to be officially released.
The other commissioners at the hearing Friday took issue with Yaki's assessment, insisting the investigation was warranted and the commission produced a "good report" that includes "fairly startling evidence" from "a couple of whistleblowers." The latest version of the report was approved by a vote of 5-2, with one commissioner voting against the report via phone.
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.
During his testimony to the commission in September, Coates only vaguely addressed the New Black Panther Party case and refused to discuss any specific internal discussions about the case, but 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."
The report approved Friday includes Coates' allegations that, during lunch meetings in late 2009, top Justice Department official Julie Fernandes told Civil Rights Division attorneys "the Obama administration was only interested in bringing traditional types of ... cases that would provide equality for racial and language minority voters."
Asked in October about those meetings and allegations, the chief of the Civil Rights Division, Tom Perez, said he and "everyone on our leadership team" have "delivered" a "very consistent message that ... we enforce all the laws, and we do so fairly, independently and even-handedly." He said Justice Department "actions I think are the best indicator of what our policies are."
The report said such statements "raise further doubts" about the Justice Department because the department "has never denied that Ms. Fernandes made the above representations." The report, however, does not include a first-hand witness able to corroborate Coates' initial description of lunch meetings in 2009.
Only about one-fifth of the 131-page report "examines the accusations of Mr. Coates and Mr. Adams relating to the Department's Civil Rights Division as a whole, as well as prior claims and allegations of politicization within the Voting Rights Section," according to the draft report itself.
On Friday, commissioner Todd Gaziano, one of the most outspoken critics of the Justice Department, acknowledged the report does not make any findings or recommendations related to the New Black Panther Party case or Coates' accusations. Instead, the findings and recommendation focus on the commission's authority to compel testimony and obtain information from the Justice Department.
Kirsanow said the current state of report is "simply a reflection of the reality that we don't have all the information necessary to complete the report the way we would like to complete the report."
Commissioners were hoping to hear more from several current Justice Department officials and to obtain a series of emails between senior officials in the days leading up to key decisions in the New Black Panther Party case.
"The involvement of senior DOJ officials by itself would not be unusual, but the Department's repeated attempts to obscure the nature of their involvement and other refusals to cooperate raise questions about what the Department is trying to hide," the draft copy of the commission's report said.
Yaki, meanwhile, said the report is hardly the "indictment" that his conservative colleagues make it out to be.
"It really reads like a bad script for a 'Men In Black' sequel," he said. "It's conspiracy theories, whispers of left-wing cabals, 'sinister forces at work tampering with witnesses,' innuendo and rumor."