• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • ‘Downgrading’ Voter Intimidation

    I was on vacation with my family in Yellowstone National Park when the New Black Panther voter intimidation case exploded into the headlines with the testimony of former Department of Justice career lawyer J. Christian Adams before the Civil Rights Commission. This story has been in the public domain for a year, but the reaction to Adams’s testimony was eerily similar to the many geysers I saw venting steam into the atmosphere in Yellowstone.

    Adams confirmed many of the details that I have reported for National Review over the past year, and Megyn Kelly of FOX News has done an outstanding job further exposing the sordid and frankly infuriating particulars of the politically biased and pernicious actions taken by the political leadership at the DOJ, as well as the hateful, racist, and anti-Semitic views of the members of the New Black Panther Party. I will have more comments on Adams’s testimony, but first I wanted to comment on the latest excuse (and tired old refrain) that has been conjured up over the past two days: It was the fault of the Bush administration. (I kid you not.)

    Yes, the latest claim, according to Cynthia Tucker of the Atlanta Journal Constitution and others, is that the “charges against the New Black Panthers were downgraded by the Bush Department of Justice [inasmuch as] the decision not to file a criminal case occurred before Obama was even in office.” This “downgrade” talking point is apparently supposed to excuse the Obama administration’s decision to dismiss virtually the entire civil voter intimidation case and to neuter the injunction sought against the one remaining defendant so substantially that what was left was little more than a minor annoyance.

    These claims by a nonlawyer betray a fundamental ignorance of the difference between civil and criminal prosecutions and a total misunderstanding of how things work at the Justice Department and the Civil Rights Division. First of all, although the Civil Rights Division has a Criminal Section, the vast majority of its voting-rights prosecutions are civil cases conducted by the division’s Voting Section. Whenever someone violates the Voting Rights Act and does so in a way that is potentially both a civil and a criminal violation, thedivision must decide whether to proceed first with a civil or a criminal case. With most voting cases, the decision is usually to go with a civil case, particularly if there are elections coming up in the near future. That is becausecivil cases have a lower burden of proof and give the government the opportunity to obtain almost immediately a temporary injunction to stop the defendants from engaging in the same wrongful behavior as the case winds its way through the federal courts.

    Criminal cases can take longer to develop, particularly since the government usually has to convene a federal grand jury to return an indictment. Also, criminal cases focus like a laser beam on individual defendants, whereascivil cases can include an organizational defendant (like the NBPP).

    The focus for the Civil Rights Division is always on the best way to get the remedy that is needed to stop and prevent the recurrence of the voter intimidation or other wrongful behavior as soon as possible. In this particular case, when the decision was being made in January of 2009, thedivision knew there was going to be another election in May in Philadelphia. The fastest to way to make sure there would be no thugs in paramilitary uniforms and jackboots smacking batons into their fists at polling places in the upcoming election was to file a civil complaint and obtain a restraining order against the individual defendants and the New Black Panther Party. In fact, one of the defendants dismissed from the case was once again credentialed as a Democratic poll watcher in the May election.

    Once the division obtained a judgment and an injunction in the civil case, they could have decided to further pursue a criminal prosecution against the individual New Black Panthers, but the number one priority had to be getting a civil injunction as expeditiously as possible before the next election.

    On the other hand, Adams also testified that some radical career lawyers shared the apparent view of the Obama political appointees that no civil-rights cases of any kind should be brought against blacks. If that factored into any decision the career lawyers made not to initiate a criminal investigation of the NBPP actions (it looks criminal to me — just watch the video and judge for yourself), that supports Adams’s most significant testimony. It would be damning regardless of which administration it occurred under. So, this left-wing excuse (that criminal charges weren’t also brought) may strongly support what the Civil Rights Commission is now trying to focus on — and what the DOJ is desperately trying to cover up.

    Indeed, the person who would have been responsible for making a recommendation on whether to file a subsequent criminal charge against the individual New Black Panther defendants was Mark Kappelhoff, the “career” chief of the Criminal Section and a former ACLU lawyer. Besides being a big contributor to Democratic candidates like Barack Obama and John Kerry, as well as the DNC, Kappelhoff was considered such a liberal loyalist that he was moved into the political position of chief of staff to the acting assistant attorney general for civil rights by the Obama transition team almost as soon as they came in the door.

    Sources tell me that Kappelhoff never recommended a criminal case against the baton-yielding thugs, so the claim that the Bush administration is somehow responsible for “downgrading” this case is complete nonsense. This is no surprise, given Kappelhoff’s very liberal ideology, and given his associations: In this photo, taken at a dinner of the Leadership Conference on Civil Rights in May of 2009, he can be seen to the right of Julie Fernandes, the deputy assistant attorney general for civil rights who is now at the center of controversy. Christian Adams testified under oath last week that Fernandes said that no voting-rights cases of any kind would be brought against minorities during this administration by the Civil RightsDivision and that Section 8 of the National Voter Registration Act, which requires states to delete ineligible voters who have died or moved away from their voter registration list, will not be enforced. Given the action of the career criminal section in CRD, it is unreasonable to expect the Bush political appointees to initiate a criminal investigation of their own in the waning days of the administration when the civil suit was being filed.

    Yet Kappelhoff and the Obama administration could make the decision today to indict the members of the New Black Panther Party, since they are still well within the applicable criminal statute of limitation. But you can rest assured that they will not do so. It is more important to them to block the investigation of the U.S. Commission on Civil Rights and to creatively excuse what they have done in this case, which was throw away the opportunity to obtain an exhaustive and wide-ranging permanent injunction against the NBPP in the civil case, which would have ensured that what happened in Philadelphia in November of 2008 never happened again at any polling place anywhere in the country.

    Another point: These same liberals are making the false claim that the Bush administration failed to file similar charges against members of the Minutemen, “one of whom allegedly carried a weapon while harassing Hispanic voters in Arizona in 2006.” “Allegedly” is the correct term to use: While I was not at the Justice Department in 2006, I have talked to sources inside the Civil RightsDivision who were and who have first-hand knowledge of the facts of this matter. The Voting Section sent lawyers to Arizona to investigate these allegations. They were told that the people in question (who were apparently there with some sort of English-only petition) did not enter the polling place and stayed outside the state-imposed limit around polling places where campaigning is forbidden. No one (including Democratic poll watchers) saw them talking to any voters while they were there — nor could the lawyers find any evidence that they prevented or discouraged anyone from entering the polling place (which is directly contrary to the witnesses in the NBPP case, who testified that they saw voters approaching the polls turn around and leave when they saw the Panthers blocking the entrance to the polling place).

    The Voting Section was not able to make any recommendations to move forward with a lawsuit because the career lawyers assigned to the case could not find any evidence to support the claims being made. In fact, the Voting Section even referred the case to the criminal section (headed up by Mr. Kappelhoff, the trusted Obama confidant), who also declined to do anything about it. There was no viable case to be “dismissed” by the Bush administration. Some of the individuals pressing this preposterous comparison are the same militant partisans who masqueraded as career civil servants for many years in the Civil Rights Division but whose true political colors were always on full display. These individuals are as unworthy of credibility as their absurd allegations.

    Finally, and perhaps most importantly, at its last hearing, Civil Rights Commissioner Todd Gaziano (who is also my colleague at the Heritage Foundation) expressed particular interest in securing testimony from the individual who would know the most about the Arizona case the liberals keep mentioning: Chris Coates, the former Voting Section chief, whom the Commission has subpoenaed. The department has ordered Mr. Coates not to comply with the lawful subpoena because he would tell too many inconvenient truths the Holder DOJ would prefer to keep bottled up. Here’s hoping that Congress may finally be able to help and apply more pressure on DOJ to stop stonewalling the commission’s investigation.

    Cross-posted at The Corner.

    Posted in Legal [slideshow_deploy]

    11 Responses to ‘Downgrading’ Voter Intimidation

    1. West Texan says:

      The DOJs stated civil benchmark to be upheld by political appointees is filing suit against any organization that uses intimidation and/or violence to promote racial division. Then again, that would include most on the political left. I suppose MLK's dream of American unity regardless of color was just too big a hat for many liberal democrats to wear. This independent voter sees that demonstared swing of the pendulum as shameful and undeserving..

    2. Linda Boyle says:

      Mr. Spakovsky,

      any organization which has the descriptive adjective "militant" attached to their name or definition of their stance has already told the world who and what they are. The following is from the miriam webster dictionary:

      militant: adj. 1. fighting or warring

      2. having a combative character; aggressive, especially in the service of a cause;

      a militant political activist.

      the NBPP have shown themselves to be just that with their paramilitary uniforms and blackjack wielding members. No one presenting this type of alligance should ever be allowed around a polling place, and anyone not prosecuting these offenders of our constitutional right to vote as we see fit, should be suspect.

    3. MrShorty - Arizona says:

      Suing Arizona over the right to enforce federal laws and dropping the case of blatant voter intimidation is a perfect example of what it will be like to live under this Communist regime in the future. We can only take care of half the problem in November, but we have to start somewhere.

    4. Dennis Georgia says:

      Who is the racist now???? It is not I, the white race in this country, but let it be known, a white person better not do the same in any city or state, they will be proscuted to the fullest extent of the law. The dems talk about the "racist Tea Party" and will not admit that this administration and obama are in the front concerning race.

    5. Tim AZ says:

      Maybe I'm wrong but it seems to me that the NBPP by their actions alone has defined themselves as domestic terrorists. Another fine example of fundamental transformation.

    6. Drew Page, IL says:

      Mr. J. Christian Adams, a former senior attorney in the Civil Rights Division at the Department of Justice, was involved in the prosecution of members of the New black Panther Party for voter intimidation. The judge hearing the case issued an injunction against one of the offenders ordering him to stay away from all polling places for a number of years. Following that judgement, Mr. Adams' superiors at DOJ intervened and the judge revised his initial injunction, ordering the offender from to stay away from only polling places in Philadelphia and for a much shorter period of time.

      Mr. Adams testified before the Commission on Civil Rights that he and other attorneys in that Division were instructed by Ms. Julie Fernandes, Deputy Asst. Attorney General to refuse to prosecute cases of alleged voter intimidation where the perpetrators were black and the victims were white. Mr. Adams resigned over these actions and went on to say that his former immediate boss at DOJ would corroberate his allegations. The Commission on Civil Rights wanted to subpoena testimony from Ms. Fernandes and from Mr. Adams' former boss at DOJ, but in order to issue those subpoenas, the DOJ had to approve them. The DOJ has refused to allow the Commission on Civil Rights to issue such subpoenas of Ms. Fernandes and Mr. Adams' former boss at DOJ. Attorney General Eric Holder is the man that appointed Ms. Fernandes to her job. He has not commented on the refusal of DOJ to allow the requested subpoenas. "A conservative activist with an agenda" sniffed the DOJ.

      Where is Mr. Obama's outrage over DOJ's refusal to comply with the Civil Rights Commission's request for subpoenas? If not outrage, where is concern or even curiosity? Or does Mr. Obama think the Commission on Civil Rights "acted stupidly"?

    7. Jeanne Stotler, Wood says:

      Years ago there was a poll tax, it was instigated to keep blacks and poor whites from voting. The SCOTUS overturned it and gave all the right to vote. If a while policeman or soldier stood in front of a poling place with baton or any weapon, even looked threatning, there would be such an outcry from certain people. There are a lot of people over the last 234 years that have fought and died to give us this right and ANYONE who tries to prevent it should be prosecuted, regardless of skin color, or origin. I agree this is a terrorist org. and should be treated as such.

    8. KLIMAX Baltimore, Ma says:

      Is the Department of Injustice trying to take us back to the 50's and 60's only turn the tables to impact the White American population the way the African American people were???!!! What is next Black only restaurants and drinking fountains??!! What has happened to the blind justice treating everyone the same in charging documents and court??!! Holder letting the Black Panthers get away with this type of intimidation is a slap in the face of every law abiding American Citizen no matter what their ethnic background !!!!!!!!

    9. Johann Wolfgang von says:

      When the black population of the USA is 17% or less, behavior like the Holder DOJ refusal for transparency and willingness to prosecute the NBPP may cause the very institutionalized racism in the future, as a reactionary process, that they had hoped to eradicate. All it takes to change this or any other scenario is enough votes…. 17% isn't a good number in an election… Wake up Holder and DOJ!

    10. Wildcat from Dallast says:

      I was reviewing this entire event from the video of the two New Black Panther Party members obviously intimidating voters at the entrance to the polling station to the former DOJ’s attorney who decided to leave rather than combat this from the inside and then something else came to light concerning this situation. Think back to Imus on the radio who made a disparaging comment about the Rutgers women’s basketball team members albeit without the intimidation factor and the “Justice Brothers” were all over it. You know, Jesse Jackson and Al Sharpton.

      Well, where are they when this actually happened in November 2008 and since then with the resignation of the DOJ attorney, the statement identifying the DOJ official who not only directed the dropping of the criminal case but then directed not to bring any more such cases in which blacks as well as other minority members would be the defendants and then the new video that clearly shows one of those same individuals spewing his ill conceived thoughts of “killing white crackers and cracker babies”? I don’t recall seeing them anywhere or even hearing a peep out of them about these specific racially charged situations involving one of the same people and the obvious reverse discrimination, have you?

      There has been a surprising interview or two on different Fox News shows with some rather heated exchanges between the current leader of the New Black Panther Party (NBPP) and Megyn Kelly and even more so with Geraldo Rivera. In fact, that leader of the NBPP was accompanied by three or more associates during his interview with Geraldo who appeared to be there for the sole purpose to intimidate the host, Geraldo. It didn’t work but it did demonstrate their true philosophy and accepted tactics as their standard.

      Add to these revelations that a tried and true Democrat film and documentary maker has now complied a series of these types of voter fraud and intimidation from multiple points across the country detailing a wider range of improprieties including the NBPP even intimidating other black voters who were NOT going to vote for Obama. While this documentary maker originally went to these locations to prove them wrong she quickly learned for herself that it was much worse than reported to her and appears that Obama supporters (official campaign workers and others including the NBPP) may have stolen the election from Hillary Clinton!

      Have we now met the criteria required to appoint a special prosecutor to look into these inter-related matters? I’m concerned it is either that or that we are about to the “lock & load” method as the Second American Revolution begins this summer whether or not we are ready for it!

    11. 3percentofdoom says:

      the black panthers should be jailed or shot point blank.if i were to do what they did i would be.damn socialists & their bs on how only whites can be racist.go to hell.

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.