DOJ Continues to Stonewall on Black Panthers while Congress Refuses to Act

There are two new developments in the New Black Panther Party controversy. First, the Department of Justice formerly replied to the U.S. Commission on Civil Rights ("Commission") subpoenas seeking documentation and answers to interrogatories concerning the dismissal of the suit. Second, the House Judiciary voted down a measure introduced by Rep. Frank Wolf (R-VA) that would "have required the Department of Justice (DOJ) to explain to Congress why it dismissed [the] voter intimidation case. . . ."

As the Washington Times reports, "The Justice Department refused Tuesday to turn over most of the information and documents sought by the U.S. Commission on Civil Rights." In rejecting "each and every Interrogatory and Document Request," DOJ claimed the "subpoenas violated existing executive orders, privacy and privilege concerns, and were burdensome, vague and ambiguous." In addition, DOJ stated the requested information was "protected by the attorney-client privilege or were not subject to disclosure because they included attorney or law enforcement work products." Finally, DOJ "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."

A Times op-ed quotes Michael Carvin, Deputy Assistant Attorney General for both the Civil Rights Division and the Office of Legal Counsel under Reagan:

"They are relying on privileges that the Office of Legal Counsel says do not exist," Mr. Carvin 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. So a claim would have to come under the 'work product' or 'deliberative process' exemption. But 'work product' is very narrow, and the deliberative-process privilege is moot ... once the case closes. This is especially true when the [request for the information] does not involve litigants but instead an agency with statutory responsibilities concerning civil rights."

Yesterday, Congressional Democrats in the House Judiciary Committee joined DOJ's stonewalling efforts in voting down H. Res. 994, a bill introduced by Rep. Frank Wolf (R-VA), "[d]irecting 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." Wolf 's response to the 15-14 party line vote: "Where is the 'unprecedented transparency' that this administration promised? Where is the honesty and openness that the majority party pledged? The American people deserve better." Please click here for the Washington Times story on the vote.

Wolf also referenced DOJ's refusal to release documents to the Commission in his statement: "The Justice Department has gone as far as to claim 'privilege' and redact seven pages of a letter that I sent to the attorney general and released publicly on July 31, 2009." Amazing. That would almost be funny if it wasn't so sad. Are they completely incompetent or just deliberately thumbing their noses at the Commission and Rep. Wolf?

If anyone cares to have the New Black Panther Party perspective, the group's president, Malik Zulu Shabazz, let loose in a podcast interview last week: "These right-wing white, red-faced, red-neck Republicans are attacking the hell out of the New Black Panther Party, and we're organizing now to fight back." (For more, visit Main Justice.)