The Department of Justice has avoided giving Congress and the Commission on Civil Rights answers about the New Black Panther voter intimidation dismissal by pointing to the ongoing review by the Office of Professional Responsibility (OPR). The OPR review is now done and that diversion no longer applies.
As reported by Pajamas here and here, the results were exactly as expected: DOJ concludes that DOJ did nothing wrong. DOJ used the OPR investigation to avoid providing information to outside investigators on September 9, 2009. Again, on November 16, 2009, the Department of Justice told the Civil Rights Commission that it couldn’t be forthcoming with information until the OPR report was finished. It used a similar tactic to avoid congressional scrutiny.
Now that the OPR report is done, it’s time for the Department to cough up the information to the House Judiciary Committee and to Congressman Frank Wolf. Wolf has also asked for a long list of information which was never provided because of the OPR investigation, or at least that’s what DOJ said was the reason. Now that the OPR investigation is complete, here is a list of things that the Judiciary Committee and other members of Congress could ask for:
2. All the documents prepared by the trial team attorneys on the case for the OPR investigation, including attachments.
3. Any internal documents or work product prepared by DOJ staff concluding that the “facts and law” did not support going forward. The extent of this request, or the lack thereof, will illuminate the extent to which credible legal analysis drove the dismissal as compared to flip hostility to the theory of equality in law that supported the lawsuit. If there is little work to show under this request, it will illuminate the shoddy nature of the dismissal. Any documents provided under this request should be compared to the work product of the four lawyers who were on the case.
4. All of the documents and emails between the top levels of the Justice Department about the case. A Judicial Watch lawsuit has revealed the existence of enormous amounts of traffic between the Office of the Deputy Attorney General and the Office of the Associate Attorney General, and even the Office of the Attorney General, about the lawsuit. A privilege log reveals the existence of the emails, but DOJ has fought like crazy to keep the contents concealed. No such privilege exists against Congress.
5. Emails between Acting Assistant Attorney General Loretta King and any outside party. Congress should demand that the emails be unredacted. Just like the email redactions to Congressman Darrell Issa’s probe into the Department of Homeland Security later revealed sizzling language describing the lawless nonsense taking place there, King’s emails may also include some sizzling descriptions of the matter likely to inflame ordinary Americans.
6. Emails between Acting Assistant Attorney General Loretta King and any party inside DOJ about the case. Why? See number #5 above.
7. All emails and documents from outside parties about the case. These documents exist but have not been turned over.
8. All internal memoranda discussing how the Department sought to invoke various privileges against United States Commission on Civil Rights subpoenas, as well as to members of Congress. Because these positions were at odds with prior Department policies, Congress has a duty to investigate why Attorney General Eric Holder changed policies to conceal information using privileges which prior administrations refused to acknowledge. This is important to determine whether or not legislation is needed, or whether Congress should trim the Department’s budgetary wings given the amount of time and taxpayer money that has been used to stonewall the whole affair.
One of the beautiful designs in our Constitution is that Congress has ultimate oversight authority over the executive branch. This tradition is borrowed from the powers of Parliament over the king. Parliament secured these powers from the crown through at least one lost head and many more lives at battles like Naseby. The oversight authority of Congress derives from the principle that the people are the ultimate power in this nation, not the sovereign. Under the Constitution, the people are most represented by the House of Representatives. One of the outcomes of the 2010 election is that the executive branch may now have to answer some of the questions I’ve outlined above. It’s a great testament to the genius of our Constitution that the grand design continues to work as planned.
J. Christian Adams is an election lawyer who served in the Voting Rights Section at the U.S. Department of Justice. His website is http://www.electionlawcenter.com.
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