Posted on January 13, 2010

Menacing Turn in Black Panther Case

Editorial, Washington Times, January 13, 2010

The Justice Department told the U.S. Commission on Civil Rights to drop dead yesterday. {snip} The department’s intransigence should frighten Congress because Justice is asserting broad privileges that undermine congressional authority to oversee government’s executive branch.

That’s why the timing is propitious today for the House Judiciary Committee to consider, and approve, a resolution of inquiry introduced by Rep. Frank Wolf, Virginia Republican. The Wolf resolution would direct Attorney General Eric H. Holder Jr. 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.”

Democrats tempted to kill this resolution today on a party-line vote should understand that they would be setting a precedent with ramifications far beyond this case. The constitutional balance of powers would be fundamentally shifted away from Congress to an unaccountable executive, and future corruption easily could go unchecked.

The Commission on Civil Rights, acting according to explicit statutory authority to subpoena executive departments, demanded that Justice answer 49 detailed questions, with accompanying document requests. In yesterday’s response, the department wrote that on the basis of seven distinct claimed “privileges,” it objects “to each and every Interrogatory and Document Request.” The cover letter to the commission from Justice official Joseph H. Hunt asserts a broader need to “protect against disclosures that would .&nbps;. . undermine its ability to carry out its mission.”

Not even President Nixon at the nadir of Watergate asserted such a broad privilege against outside review. Sustaining such a privilege would let an executive agency assert that anything it self-defines as its “mission” would be immune from scrutiny. That way lies tyranny.


“They are relying on privileges that the Office of Legal Counsel says do not exist,” Mr. Carvin [Michael Carvin, deputy assistant attorney general for both the Civil Rights Division and the Office of Legal Counsel under President Reagan] asserted. “There is no privilege, for instance, saying that the Justice Department will not identify personnel working on the case. . . . Generally, a number of these privileges [are ones] I’ve literally never heard of.”

Mr. Carvin specifically noted, contrary to Justice claims, “Normally there is no general attorney-client privilege unless you are dealing with the president. {snip}”


The Justice Department refused Tuesday to turn over most of the information and documents sought by the U.S. Commission on Civil Rights explaining why a civil complaint was dismissed against members of the New Black Panther Party who disrupted a Philadelphia polling place in the November 2008 elections.

In a 38-page response, the department objected–except for a few court records, letters and procedural documents–to “each and every” question and document request submitted by the commission, saying the subpoenas violated existing executive orders, privacy and privilege concerns, and were burdensome, vague and ambiguous.

The lengthy response, a copy of which was obtained by The Washington Times, also said the requested information and documents were protected by the attorney-client privilege or were not subject to disclosure because they included attorney or law enforcement work products.

The department also refused to release any information about an investigation of the New Black Panther Party case by its office of professional responsibility, saying the ongoing review was privileged information or was covered by the Privacy Act.


But Commissioner Todd Gaziano, an independent appointed by the House, questioned the department’s refusal to turn over the bulk of the requested information and documents.

“The department offered no arguments as to their legal position in denying the requests,” Mr. Gaziano said during an interview Tuesday. “This is just more delay, more stonewalling and without any justification.

“The department has no privilege in this matter other than executive privilege, and if the president wants to assert it, he should do so,” he said.

The Civil Rights Commission, frustrated by the Justice Department’s failure to explain the dismissal despite repeated written requests for information, issued subpoenas on Dec. 9 demanding records showing how the case was handled.


The commission had sought answers from the Justice Department on why a civil complaint against the New Black Panther Party and three of its members was dismissed after a federal judge in Philadelphia had ordered default judgments in the case.