[House Report 111-404]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 111-404
======================================================================
RESOLUTION OF INQUIRY DIRECTING THE ATTORNEY GENERAL TO TRANSMIT TO THE
HOUSE OF REPRESENTATIVES ALL INFORMATION IN THE ATTORNEY GENERAL'S
POSSESSION RELATING TO THE DECISION TO DISMISS UNITED STATES V. NEW
BLACK PANTHER PARTY
_______
January 27, 2010.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
ADVERSE REPORT
together with
DISSENTING VIEWS
[To accompany H. Res. 994]
[Including Committee Cost Estimate]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 994) directing the Attorney General to
transmit to the House of Representatives all information in the
Attorney General's possession relating to the decision to
dismiss United States v. New Black Panther Party, having
considered the same, reports unfavorably thereon without
amendment and recommends that the resolution not be agreed to.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background....................................................... 2
Hearings......................................................... 3
Committee Consideration.......................................... 3
Committee Votes.................................................. 3
Committee Oversight Findings..................................... 4
New Budget Authority and Tax Expenditures........................ 4
Committee Cost Estimate.......................................... 5
Performance Goals and Objectives................................. 5
Constitutional Authority Statement............................... 5
Advisory on Earmarks............................................. 5
Section-by-Section Analysis...................................... 5
Dissenting Views................................................. 6
Dissenting Views of Mr. Harper................................... 11
Purpose and Summary
H. Res. 994, introduced by Representative Frank Wolf,
directs the Attorney General to transmit to the House of
Representatives copies of any document, memo, or correspondence
of the Department of Justice with regard to United States v.
New Black Panther Party, or any portion of any such document,
memo, or correspondence that refers or relates to--
(1) any Department communications with regard to the
case between November 5, 2008, and November 15, 2009;
(2) any communication with the defendants or the
defendants' attorneys between November 5, 2008, and
November 15, 2009;
(3) any communication with third-party organizations
or individuals between November 5, 2008 and November
15, 2009; or
(4) any evidence with regard to the dismissal of the
case.
Background
Under the rules and precedents of the House of
Representatives, a resolution of inquiry is one of the methods
that the House can use to obtain information from the Executive
Branch.\1\ It ``is a simple resolution making a direct request
or demand of the President or the head of an executive
department to furnish the House of Representatives with
specific factual information in the possession of the executive
branch.''\2\ The typical practice has been to use the verb
``request'' when asking for information from the President, and
``direct'' when addressing Executive department heads.\3\
Clause 7 of rule XIII of the Rules of the House of
Representatives provides that if the committee to which the
resolution is referred does not act on it within 14 legislative
days, a privileged motion to discharge the resolution from the
committee is in order on the House floor.
---------------------------------------------------------------------------
\1\Christopher Davis, House Resolutions of Inquiry, CRS Report,
November 25, 2008, at 1 (quoting U.S. Congress, House, Deschler's
Precedents of the United States House of Representatives, H. Doc. 94-
661, 94th Cong., 2nd sess., vol. 7, ch. 24, Sec. 8).
\2\Id.
\3\Id.
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While recognizing the importance of effective enforcement
of the Voting Rights Act, the Committee believes that H. Res.
994 is unwarranted. The Department of Justice has provided and
continues to provide relevant information on the subject and to
respond to Congressional requests.
First, on July 9, 2009, Ranking Member Lamar Smith,
Representative Wolf, and several other House Members wrote to
DOJ's Inspector General requesting an investigation concerning
the partial dismissal of the case. The request was referred to
DOJ's Office of Professional Responsibility (OPR), which
informed Representative Smith and the other requesting Members
that it had initiated an inquiry and would contact them with
the results when complete. In response to a further inquiry by
Representative Smith and Representative Wolf, OPR explained on
November 24, 2009, that in accordance with standard Department
procedures, a complete investigation would take more time, that
the investigation was proceeding apace, and that OPR would
inform them of the results ``as soon as we are able to do so.''
Second, prior to the initiation of the OPR investigation,
Representative Smith and Representative Wolf requested
information and briefings from DOJ on the case. Chairman
Conyers directed Committee staff to help facilitate such a
briefing for all interested Committee Members. DOJ wrote
separately to Representative Smith and Representative Wolf on
July 13, 2009, providing a four-page analysis of the legal and
factual issues and DOJ's actions in the case, enclosing to
Representative Smith all non-privileged documents relating to
the dismissal as he had requested, and noting to Representative
Smith that DOJ had already contacted Committee staff about
arranging a briefing. Copies were sent to Chairman Conyers,
Chairman Nadler, and Representative Sensenbrenner. A briefing
for Representative Wolf was held on July 20, 2009. As
scheduling and other arrangements were underway with respect to
Representative Smith, OPR initiated an inquiry, and DOJ
determined to await the outcome of the OPR inquiry before
responding further. DOJ wrote to Representative Smith on
September 11, 2009, providing some additional information and
stating its plan to await the outcome of the OPR report. There
has been no further correspondence relating to a DOJ briefing.
Third, Assistant Attorney General for Civil Rights Thomas
E. Perez has responded to questions by Committee Members about
the case. During the December 3, 2009 hearing of the
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties, Mr. Perez explained that the decisions with respect
to the disposition of the case were made by two career
attorneys with over 60 years of combined experience, including
one who was serving as acting director of the Division earlier
in 2009, prior to Mr. Perez's confirmation. Mr. Perez discussed
the significant injunctive relief that was obtained in the
case, and stated that he was looking forward to the results of
the OPR review. Written follow-up questions have been sent to
Mr. Perez.
Fourth, the Committee is already in receipt of documents
requested by H. Res 994. On January 11, 2010, DOJ determined
that a number of documents relating to the case could
appropriately be released in response to requests by Congress,
and accordingly sent more than 1,850 pages of documents
concerning the case and related matters to Representatives
Smith and Wolf, Chairman Conyers, and the U.S. Civil Rights
Commission, along with answers to written questions from the
Commission. The documents produced include correspondence
between the Department of Justice and each of the defendants in
the case, as requested by H. Res. 994.
Hearings
No hearings were held in the Committee on H. Res. 994.
Committee Consideration
On January 13, 2010, the Committee met in open session and
ordered H. Res. 994 adversely reported, without amendment, by a
rollcall vote of 15 yeas to 14 nays, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall vote occurred during the Committee's
consideration of H. Res. 994:
H. Res. 994 was ordered reported unfavorably by a vote of
15 to 14.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Delahunt.................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley.....................................................
Ms. Chu.........................................................
Mr. Gutierrez...................................................
Ms. Baldwin..................................................... X
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
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Total....................................................... 15 14
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Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this resolution does
not provide new budgetary authority or increased tax
expenditures.
Committee Cost Estimate
In compliance with clause 3(d)(2) of rule XIII of the Rules
of the House of Representatives, the Committee estimates that
implementing the resolution would not result in any significant
costs. The Congressional Budget Office did not provide a cost
estimate for the resolution.
Performance Goals and Objectives
Clause 3(c)(4) of rule XIII of the Rules of the House of
Representatives is inapplicable, because H. Res. 994 does not
authorize funding.
Constitutional Authority Statement
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives is inapplicable, because H. Res. 994 is not a
bill or a joint resolution that may be enacted into law.
Advisory on Earmarks
Clause 9 of rule XXI of the Rules of the House of
Representatives is inapplicable, because H. Res. 994 is not a
bill or a joint resolution.
Section-by-Section Analysis
H. Res. 994 directs the Attorney General to transmit to the
House of Representatives, not later than 14 days after the date
of adoption of this resolution, copies of any document, memo,
or correspondence of the Department of Justice with regard to
United States v. New Black Panther Party, or any portion of any
such document, memo, or correspondence that refers or relates
to--
(1) any Department communications with regard to the
case between November 5, 2008 and November 15, 2009;
(2) any communication with the defendants or
defendants' attorneys between November 5, 2008 and
November 15, 2009;
(3) any communication with third-party organizations
or individuals between November 5, 2008 and November
15, 2009; or
(4) any evidence with regard to the dismissal of the
case.
Dissenting Views
I. INTRODUCTION
We strongly support H. Res. 994 and oppose adversely
reporting this resolution to the House of Representatives. H.
Res. 994 directs the Attorney General to transmit to the House
of Representatives all information in the Attorney General's
possession relating to the decision to dismiss United States v.
New Black Panther Party.
On Election Day 2008, outside of a Philadelphia,
Pennsylvania, polling location, two men were dressed in
paramilitary uniforms, one brandishing a baton in front of
voters. The men cursed at voters, shouted racial obscenities at
voters, and tried to block the entry of voters, and those
assisting them, into the polling location. These men were
members of The New Black Panther Party for Self-Defense, an
organization so radical that the original Black Panther Party
has found it necessary to denounce it.
On January 7, 2009, the Civil Rights Division of the
Department of Justice (the Department) filed a complaint
against the New Black Panther Party, the Chairman of the
organization, and the two members involved in the Philadelphia
Election Day incident for violating the Voting Rights Act,
which prohibits any attempt to intimidate, threaten, or coerce
any voter and those aiding voters.
According to the Department's complaint, the two
individuals involved in the Philadelphia incident ``made
statements containing racial threats and racial insults to both
black and white individuals,'' and ``made menacing and
intimidating gestures, statements, and movements directed at
individuals who were present to aid voters.''\1\
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\1\United States v. New Black Panther Party for Self-Defense, Civ.
No. 09-0065 SD (E.D. Pa. filed Jan. 7, 2009) (Comp. 10-11).
---------------------------------------------------------------------------
Neither the New Black Panther Party nor its members
responded to the lawsuit. Thus, the Department was instructed
by the Court to prepare a motion seeking a default judgment.
Rather than seek this default judgment, however, and ensure
that defendants could not participate in future voter
intimidation tactics, the Department abruptly dropped charges
against all but one of the defendants. With regard to that
remaining defendant, the Department narrowed the scope of its
proposed remedy. Rather than being permanently enjoined from
engaging in such conduct at any polling location the remaining
defendant was prohibited only from engaging in this behavior
outside of polling locations in the city of Philadelphia, and
only until mid-November of 2012.
The Department's actions in this case have led many to ask
why the Obama Administration would suddenly drop most of the
charges in a case it had effectively won. No facts had changed.
No new evidence was uncovered. The law had remained unchanged.
The only thing that did change is the political party in charge
of the Department of Justice. Judiciary Committee Ranking
Member Lamar Smith and Commerce-Justice-Science Appropriations
Subcommittee Ranking Member Frank Wolf wrote the Department
eight times since the case dismissal seeking the answer to one
simple question: what changed between January 2009 and May 2009
such that the law necessitated the dismissal of most of the
Department's claims and the narrowing of the remedy for the
remaining defendant?
The Department's inability or unwillingness to address this
question leaves the minority members of this Committee with no
other alternative but to conclude that improper--likely
partisan political--motivations were behind the Department's
actions, that politics improperly played a role in its decision
to enforce the Voting Rights Act. These concerns were only
heightened when it was learned that one of the defendants
against whom charges were dropped was a Democratic poll
watcher.\2\ Through media reports it was later learned that the
lead career attorneys on the case strongly advocated in favor
of seeking the default judgment against all original defendants
in this case.\3\ When Department officials sought a second
opinion from its career appellate attorneys, they agreed with
the recommendation of the lead attorneys that default charges
should be finalized as against all original defendants.\4\
Those same media reports assert that senior political
appointees may have overridden the decision of career
attorneys.\5\
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\2\Letter from Members of the U.S. Commission on Civil Rights to
the Honorable Eric Holder, Attorney General, U.S. Department of
Justice, (Aug. 10, 2009) (on file with minority staff of the Committee
on the Judiciary).
\3\See Jerry Seper, Exclusive: No. 3 at Justice OK'd Panther
Reversal, the Wash. Times, July 30, 2009.
\4\See Id.
\5\See Id.
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II. THE APPROPRIATENESS OF A DEFAULT JUDGMENT AGAINST
ALL ORIGINAL DEFENDANTS
The Department asserts that default judgments are not
automatic, and that the government must still prove the case
based on the law and the facts. The minority members of this
Committee find this argument unpersuasive because one would
assume that the Department would not have brought the case
against the Defendants unless it believed the evidence
supported it and that it could prove each alleged act based
upon that evidence. Furthermore, we know from news reports that
the attorneys in charge of the case never wavered from their
belief that the evidence did prove the allegations against each
defendant.
Ultimately, the question that minority members of the
Committee wish to have the Department explain and that the
Department has thus far refused to do, is why. Either the facts
were not strong enough for the case to have been brought, or
they were but the Department decided not to move forward with
the case. If the Department would simply explain what standard
it used in early May to analyze the facts and why these facts
did not meet these legal standards that the Department had
concluded just five months earlier did would go a long way
towards addressing concerns raised by the minority members of
this Committee. However, the Department's failure--or refusal--
to engage in this discussion has led us and observers to wonder
whether DOJ has something to hide. And in this instance the
Department's silence appears to be an admission of guilt.
III. WHETHER THE DEPARTMENT PURSUED THE FULL SCOPE OF THE REMEDY
ALLOWED UNDER THE VOTING RIGHTS ACT INTIMIDATION PROVISIONS
The Department asserts that with regard to the remedy
sought against the remaining original defendant in this case it
sought to punish him to the fullest extent under the law, an
injunction. However, the Department fails to address why it
rejected the original permanent injunction sought in the
January filings and instead submitted a more narrow request to
the court in May that requested an injunction applicable only
to polling locations in the city of Philadelphia and only
through mid-November 2012.
IV. THE DEPARTMENT'S ATTEMPTS TO RESPOND TO U.S. COMMISSION ON CIVIL
RIGHTS INQUIRIES
Twenty-four hours before H. Res. 994 was marked up by this
Committee, the Department provided responses to interrogatories
served upon it by the U.S. Commission on Civil Rights (the
Commission). The Department provided copies of these responses
to the Committee. It also produced approximately 1800 pages
worth of Department documents.
Unfortunately, the Department's responses to the
Commission's interrogatories provided little, if any,
information that would assist Congress in the performance of
oversight on this matter. The Department refused to answer,
either wholly or in part, 31 of the Commission's 49
interrogatories. The Department asserts that it did respond to
the Commission's interrogatories and document request last
week. However, its answers for those 31 questions consisted of
the statement that it ``generally objected'' to the question
being asked. In some instances the Department explained in
greater detail he source of its objections. Nonetheless, it
cannot be argued that the Department answered the questions
asked of it by the Commission. Instead, they answered by saying
that they would not answer those 31 questions.
Furthermore, the 1800 pages worth of documents provided by
the Department while voluminous, failed to provide Congress any
information about the dismissal of this case, particularly with
regard to how the case could be strong enough to be filed one
month and too weak to pursue four months later. So Congress
remains unable to explore the application of the Voting Rights
Act to the New Black Panther Party case.
V. THE AFFECT OF THE DEPARTMENT'S OFFICE OF PROFESSIONAL RESPONSIBILITY
REVIEW ON CONGRESS'S OVERSIGHT OF THE DEPARTMENT'S ACTIONS IN THIS CASE
It has been argued by some that Congress should not
investigate the New Black Panther Party case dismissal because
of the ongoing review by the Department's Office of
Professional Responsibility (OPR).
At its heart, the Department's handling of the New Black
Panther Party case is really a policy question: how can the
conduct underlying the case be allowable under the Voting
Rights Act and, if it is, what changes, if any, should be made
to the law to prevent such conduct in the future? Policy is set
by Congress, not the Department, and it is up to Congress to
determine whether current law reaches the conduct that Congress
intended the law to reach when enacted.
It is unclear in this case based on what is publicly known
why the incident of Election Day 2008 is not prosecutable as
intimidation under the Voting Rights Act, Thus, Congress has a
constitutional responsibility to inquire into whether the law
as currently written is strong enough to prohibit such conduct.
The law either currently is strong enough, and the
Department made its decision to drop the case based on reasons
other than substantive legal analysis, a decision which would
show partisan political influence, or it is not, in which case
Congress has a duty to review whether the Voting Rights Act
needs to be revised to cover such acts.
Thus far, in response to inquiries and document requests
from Republican members of this Committee, the Department has
stated that the claims were not appropriate under the Voting
Rights Act, despite the fact that based on the same set of
facts, the Department had but months earlier decided the facts
did merit the initiation of the suit.
In light of the Department's current view of the law, it
appears Congress must consider whether to strengthen the Voting
Rights Act. In order to have that debate, Congress needs to
know the facts that the Department had in front of it when it
decided to file this case and when it decided to dismiss it.
The Department's review of whether its employees committed
misconduct while implementing policies set by Congress has no
relationship to Congress's obligation to ask the above
questions about implementation of the Voting Rights Act.
Congress still has an independent duty to ask whether the
policies it has set, and the laws enacted to implement those
policies, work. This duty cannot be performed by the agency
tasked with implementing Congress's policy determinations. Nor
can it be extinguished by an agency's decision to investigate
the conduct of its employees in relation to the implementation
of those laws.
OPR's review is merely an internal inquiry into the conduct
of Department lawyers in the course of performing their duties.
In this case, those duties involve the enforcement of the same
Voting Rights Act provisions, the application of which Congress
has grown concerned about after the November 2008 incident in
Philadelphia.
In the course of its investigation OPR will review whether
Department attorneys were competent in their knowledge of the
applicable area of the law, whether they were diligent in
efforts to prepare materials and arguments made before the
court, and whether their conduct complied with the law,
governing ethical requirements, and the duty of care owed by
all attorneys.
With regard to the questions raised by the Department's
case against the New Black Panther Party, it is simply outside
the scope of an OPR inquiry to determine how broad the scope of
the Voting Rights Act currently is or should be and whether the
Voting Rights Act as written reaches the conduct Congress
wishes to regulate or prohibit.
While both Congress and OPR will find relevant some of the
same information, the two entities have different focuses. It
is, however, the exclusive province of Congress to determine
and set policy. And the Department has yet to articulate how
Congress's review of these documents, in furtherance of that
duty, at the same time OPR reviews those documents will
interfere with OPR's ability to assess the import of those
documents.
VI. CONCLUSION
What if on election day in Philadelphia, Mississippi, two
white men in white robes and hoods, one of them armed with a
baton, station themselves in front of a polling place and make
threatening comments to African-Americans arriving to vote.
In the wake of that election, a Democratic Justice
Department files suit against the two Klansmen and the Klan,
who fail to respond, and the federal judge directs the
Department to submit an unopposed order resolving the case.
Instead, a new Republican Justice Department dismisses the
case and files only a very limited injunction against the one
Klansman with the baton.
In the case of this hypothetical, would our Committee
colleagues in the majority not be demanding information
justifying what led to the Department's about-face? Of course
they would be, and the minority members of this Committee would
join them, because the intimidation provisions of the Voting
Rights Act were designed with precisely that case in mind.
In the New Black Panther Party case we have a case that
seems tailor-made for the application of the intimidation
prohibition in the Voting Rights Act, and Department lawyers
apparently came to that conclusion as well in filing the suit.
But a new set of eyes at the Department apparently saw the
case differently. We need to know why.
In its meager responses to congressional inquiries, the
Department suggests that the Voting Rights Act may not be
adequate to address the actions of these defendants, but that
analysis should have occurred before the suit was filed. And
the Department fails to point out any change in the law after
the case was filed or any newly uncovered facts that would
justify its change of heart. The only fact that appears to have
changed is the change in political control of the Department.
So we are left with one of two choices: either the
Department erred in filing the suit or it erred in dropping the
suit. We should be able to make that judgment, but we cannot on
the basis of the inadequate response from the Department to Mr.
Smith's and Mr. Wolf's letters.
We need to know because it is up to us, on this Committee,
to decide whether the intimidation provisions of the Voting
Rights Act need to be strengthened, or if this matter reflects
simply a new judgment by the new President and his team that he
does not want to harm his political allies. If that is the
case, as it appears now to be, then the majority may have
finally found the first case in which actual political
influence appears.
For more than two years, the majority on this Committee has
been looking for such a case as it pursued its investigation
into the firing of political appointees. The problem is they
have looked only for such cases during the last administration.
But in its first six months, the new administration has
apparently provided an instance that we have yet to uncover
during our microscopic investigation of the previous one: a
case tainted by partisan political influence.
There cannot be true justice if those responsible for
ensuring justice rely on a political compass rather than facts
and evidence.
It is unfortunate that this Committee chose not to obtain
answers to the serious questions raised by the Department's
conduct in this case by reporting this resolution out
favorably. The right to cast a ballot free of intimidation is
at the heart of our democracy. We jeopardize our democracy if
we look the other way in this case.
Lamar Smith.
F. James Sensenbrenner, Jr.
Howard Coble.
Elton Gallegly.
Bob Goodlatte.
Daniel E. Lungren.
Steve King.
Trent Franks.
Louie Gohmert.
Jim Jordan.
Ted Poe.
Jason Chaffetz.
Dissenting Views of Mr. Harper
I join Sections I-V of the dissenting views offered by
Ranking Member Smith.
Gregg Harper.