- The Washington Times
Tuesday, November 3, 2020

A federal judge has reversed himself and approved the Justice Department’s publishing of a report on proposed changes to policing that drew fire from racial justice advocates because it was drafted entirely by law enforcement officials.

U.S. District Judge John Bates said late Monday that the Justice Department’s Presidential Commission on Law Enforcement and the Administration of Justice could produce the report as long as it included a disclaimer that it was written in violation of federal open meeting laws.

In September, Judge Bates blocked the report’s release, saying the commission ran afoul of a federal law requiring the Justice Department to receive inputs from “fairly balanced” viewpoints.

An appointee of President George W. Bush, Judge Bates scolded the Justice Department for filling the panel entirely with law enforcement officials, but excluding people with “criminal defense, civil rights, or community organization background.”

The NAACP Legal Defense Fund, which brought the lawsuit against Attorney General William Barr and the Justice Department, urged Judge Bates to block the report’s release. The fund also asked for the panel to be disbanded and reformed with more diverse participants.

The court rejected the group’s demand and instead greenlighted publication as long as the Justice Department adds a disclaimer and attaches his first ruling to it.

Judge Bates said “a conspicuous disclaimer” on the report will ensure “that everyone who views the report learns it was produced unlawfully by a non-representative body.”

Ordering a new panel would be wasteful because the commission has completed its meetings and spent more than $4 million of taxpayer funds to produce the report, Judge Bates ruled.

“Surely, a fresh inquiry would be costly, even if the old materials are not completely wasted,” he wrote.

Justice Department lawyers had argued that the commission was not subject to the Federal Advisory Committee Act, but they did not challenge claims it would run afoul of the law, if applicable.

In his September ruling, Judge Bates said the department should not have excluded civil rights leaders.

“Especially in 2020, when racial justice and civil rights issues involving law enforcement have erupted across the nation, one may legitimately question whether it is sound policy to have a group with little diversity of experience, examine, behind closed doors, the sensitive issues facing law enforcement and the criminal justice system in America today,” he wrote at the time.

The report is expected to be released next week. It was originally to be made public last month just ahead of the presidential election, but the NAACP lawsuit delayed it.

President Trump has made restoring law and order to Democratic-run cities, a key part of his reelection campaign.

Sherrilyn Ifill, NAACP LDF president and director-counsel, said she was satisfied with court’s final decision, adding the panel’s lack of diversity has left the report “tainted” and “absolutely discredited.”

“The cynical deployment of this illegal commission is particularly egregious at a time when, across the country, Americans are demanding accountability for police violence against unarmed African Americans and confronting the reality of police violence against peaceful protesters,” she said in a statement.

Fair and Just Prosecution, a national network of prosecutors advocating for criminal justice reform, said adding the disclaimer was the right move.

“The Court appropriately highlighted the egregiousness of the Commission’s bias and its wholly unrepresentative membership, noting that the violations of FACA were stark,” the group said in a statement. “While the Court allowed the report to be published, requiring that any publication include a strong disclaimer will be a clear message to all of the lack of legitimacy reflected by a process that blatantly ignored federal law.”

A Justice Department spokeswoman did not immediately respond to a request for comment.

Mr. Barr unveiled the commission in January, following an executive order in October 2019. It is tasked with studying mental illness, homelessness, substance abuse and other issues that impact law enforcement efforts to reduce crime.

At the time, the Justice Department said the panel would explore “modern issues affecting law enforcement that most impact the ability of the American people to reduce crime.”

All of the commission’s 18 members work in law enforcement, and no defense attorneys, civil rights organizations or academics were included. The commission has 15 working groups, but they are largely made up of police officials or prosecutors.

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