- The Washington Times
Monday, August 2, 2010

The federal government’s dismissal of voter intimidation charges against the New Black Panther Party has not only stirred debate at the national level and among various media outlets, but created a firestorm within the U.S. Commission on Civil Rights, which has announced a separate investigation of the matter.

In a statement, five Republican and independent commission members — describing themselves as “conservative-leaning colleagues” — took issue with comments by Commission Vice Chairman Abigail Thernstrom, also a Republican appointee, who called the New Black Panther Party probe “politically motivated.”

“Our fellow member of the U.S. Commission on Civil Rights, Abigail Thernstrom, has asserted in various media outlets that the commission’s investigation into the Justice Department’s handling of the New Black Panther Party matter is a politically-motivated attempt to damage President Obama,” the five said in the statement.

“Not only is this accusation baseless, it deflects attention from the serious allegations of wrongdoing within the Department of Justice both in connection with the New Black Panther Party case and more broadly,” it said.

Mrs. Thernstrom told Politico last month that the commission’s investigation “doesn’t have anything to do with the Black Panthers; this has to do with their fantasies about how they could use this issue to topple” the Obama administration. She said her fellow conservatives on the commission “had this wild notion they could bring Eric Holder down and really damage the president.”

The statement issued Thursday was signed by Republican members Gerald A. Reynolds, assistant general counsel at the Kansas City Power & Light Co., who serves as chairman; Peter N. Kirsanow, a partner at the Cleveland law firm of Benesch, Friedlander, Coplan & Arnoff; and Ashley L. Taylor, a partner at the Richmond law firm of Troutman Sanders LLP; and independent appointees Gail Heriot, a law professor at the University of San Diego, and Todd F. Gaziano, senior fellow in legal studies at the Heritage Foundation in Washington.

“We decline to comment here on Commissioner Thernstrom’s motives for making these statements or for any other votes or positions she’s taken recently,” the statement said, adding that her comments were “seized by some to diminish the importance and credibility of the investigation.”

The five said the commission is charged by Congress with the responsibility for issuing at least one report each year on an issue of the federal enforcement of civil rights laws. This year, the statement said, the commission’s enforcement topic is the Justice Department’s handling of the New Black Panther Party voter intimidation case.

The Justice Department has refused to release a number of documents sought by the commission as part of its probe and has declined to make some witnesses available for comment. Mr. Reynolds declared an impasse in negotiations between the commission and the department, saying the agency had “repeatedly refused” to provide any basic information regarding the case, instead asserting “vague and generalized privileges” that do not apply.

In January, the department refused to release documents sought by the commission to explain 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. The department said subpoenas issued by the commission violated privacy and privilege concerns, and were burdensome, vague and ambiguous.

The department also said the requested information was protected by the attorney-client privilege or was not subject to disclosure because it included attorney or law-enforcement work products. It also refused to release any information about an investigation of the New Black Panther Party case by its Office of Professional Responsibility, saying the review was privileged information or was covered by the Privacy Act.

The commission issued subpoenas in December, demanding records showing why the civil complaint against the New Black Panther Party and three of its members was dismissed after a federal judge in Philadelphia ordered default judgments in the case. The New Black Panther Party members had refused to respond to the charges or to appear in court.

The Justice Department’s Voting Rights Section was in the final stages of seeking the judgments when Loretta King, serving as acting assistant attorney general, ordered a delay. The delay was issued after she met with Associate Attorney General Thomas J. Perrelli, the department’s No. 3 political appointee, who approved the dismissal, according to interviews with department officials who sought anonymity because they were not authorized to speak publicly about the case.

A civil complaint was filed by the Voting Rights Section in January 2009 in Philadelphia against the party after two of its members in black berets, black combat boots, black shirts and black jackets purportedly intimidated voters with racial insults, slurs and a nightstick. A third party member was accused of managing, directing and endorsing their behavior. The incident was captured on videotape.

Four months later, the Justice Department dropped the charges, saying “the facts and the law did not support pursuing” them.

The civil complaint accused Minister King Samir Shabazz, head of the Philadelphia chapter, and Jerry Jackson, a Philadelphia party member, of intimidating voters at the polling place. A third party member, Chairman Malik Zulu Shabazz, a lawyer and D.C. resident, was accused of directing and endorsing their behavior. The department obtained an injunction against Mr. Samir Shabazz that prohibits him from brandishing a weapon outside a polling place until 2012.

According to the commissioners’ statement, the New Black Panther Party investigation was prompted “solely by what a majority of commissioners (including, at one time, Commissioner Thernstrom) perceived as the unusual circumstances surrounding” the case.

“We were and continue to be concerned about the Justice Department’s decision to dismiss charges as to three of the four defendants after there had already been an entry of default against all of them as well as the decision to pursue an extremely narrow remedy against the remaining defendant,” it said.

The statement also argued that the Justice Department’s initial response to members of Congress and the commission — that the facts and circumstances of the case did not constitute voter intimidation — made the dismissal more significant “because that seemed to signal an erroneous and potentially problematic change in voter intimidation enforcement policy.”

“In inquiring into the motivations behind and the future implications of those decisions, we are doing our job,” the statement said, adding that evidence collected so far by commission staff “suggests that our disquiet over that case may have been justified.”

• Jerry Seper can be reached at jseper@washingtontimes.com.

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