Federal Judiciary

The Case Against the New Black Panthers -- By: Andrew C. McCarthy

‘Forget about the New Black Panther Party case,' writes Abigail Thernstrom. It's 'very small potatoes.' She is suddenly upset over the 'overheated rhetoric filled with insinuations and unsubstantiated charges' about the case that she grudgingly admits may 'perhaps' have been a civil-rights violation. So she has explained in an NRO op-ed. Naturally, her 'conservative dissent' has been seized on by the 'nothing to see here' Left, which can now get back to its preferred big-potatoes-diet of Bristol Palin, Karl Rove subpoenas, and leaking classified information.

It was just a year ago, before we knew some truly outrageous details that have since come to light, that Thernstrom was sounding plenty heated herself. In a letter dated June 22, 2009, she scolded Loretta King, the Obama Justice Department's top civil-rights enforcer, writing that she and other members of the U.S. Commission on Civil Rights were

gravely concerned about the Civil Rights Division's actions in this case and feel strongly that the dismissal of this case weakens the agency's moral obligation to prevent voting rights violations, including acts of voter intimidation or vote suppression. We cannot understand the rationale for this case's dismissal and fear that it will confuse the public on how the Department of Justice will respond to claims of voter intimidation.

No conservative dissent there. Thernstrom, the Commission's vice-chair, pronounced that the Panthers 'were caught on video engaging in voter suppression.' She demanded that this top Justice Department official explain the evidentiary and legal rationale for dismissing such a case.

#ad#And now? She's apparently decided that her eyes deceived her. It no longer matters to Thernstrom what the Panthers were doing in front of that Philadelphia polling station because, after all, it was a majority-black precinct that had voted overwhelmingly for Democrats in previous elections. That, she told the Washington Post, would not have been a prime spot for intimidating white voters.

Memo to Thernstrom: That would be the prime spot for intimidating white voters. Gangsters maraud in the places where they know that the community has been cowed, not where it is likely they will meet resistance and law enforcement. The Panthers' purpose wasn't just to intimidate the white voters; it was to demonstrate to law-abiding black and white residents that, in Philadelphia, the Panthers are untouchable -- a proposition the Justice Department has helped them prove.

But what about the Panthers' intimidating uniforms and jackboots? Don't be silly, Thernstrom now counters. After all, 'the boots were no different from a pair my husband owns.' Oh, I see: How could anyone think these friendly Panthers -- who were heard telling spectators, 'You're about to be ruled by the black man, cracker' -- were any more intimidating than#...#Stephan Thernstrom? That's the first thing that popped into my head upon reading about Panther leader King Samir Shabazz serenading blacks with enticements like, 'You want freedom? You're gonna have to kill some crackers! You're gonna have to kill some of their babies!'

#page#'Who cares what he's saying?' I thought to myself, 'I just can't take my eyes off his feet! Why, those boots look just like those ones that Stephan Thernstrom wears on television. What could be the problem?'

And then there's the 'King's' billy club, the one Shabazz was brandishing and slapping against his palm. Dr. Thernstrom tells readers this is not really what 'armed' means in our civil-rights jurisprudence. Describing someone as 'armed,' she insists, 'suggests guns.' That simply is not true. And it would certainly come as news to the L.A. cops convicted of civil-rights violations for beating Rodney King with billy clubs. And I bet Abner Louima can rest easier now, too: NYPD officer Justin Volpe may have sodomized him with that wooden stick, but at least he wasn't armed.

Thernstrom's turnabout is surprising, given that it comes despite the fact that the concerns she raised a year ago have only grown more acute. But even more stunning is the frivolousness of her new legal arguments. Maybe the Panthers should have been prosecuted for voter intimidation under the Voting Rights Act, she concedes through clenched teeth. But 'the legal standards that must be met#...#are very high.'

#ad#Not true, Dr. Thernstrom. The legal standards are actually quite easy to meet -- especially when the defendants don't answer the charges. Remarkably, Thernstrom fails to inform readers that this is a case the Justice Department had already won. It's the same reporting dereliction offered up by Thernstrom's suddenly smitten Politico profiler, Ben Smith. Evidently, 'reporting' on the Panthers case requires virtually no discussion of the case itself: you know, those quaint matters like the evidence, the law, and the happenstance that Eric Holder's political appointees -- after reportedly consulting with such left-wing activists as the NAACP's Legal Defense Fund but failing to read their own trial team's memorandum -- threw victory away.

This is not a situation in which, as Politico disingenuously implies, a mere investigation straddled two different administrations and the second decided to drop it. Charges were filed here. Team Obama did not merely abandon an investigation; they abandoned a formal complaint that had been brought in court by career prosecutors in the name of the American people. Further, the Panthers had ignored that complaint, and thus there had been a legal default. A U.S. judge was poised to enter judgment in favor of the United States. Only then, having prevailed, having reached a point in the litigation where the Panthers had intentionally forfeited their right to litigate the legal standards about which Thernstrom writes, did Holder's minions order the line prosecutors to dismiss the case.

As former Justice Department attorney Hans von Spakovsky -- a longtime veteran of the Civil Divison -- put it: 'I have never, ever heard of the Division refusing to take a default judgment, especially in a situation where the defendants are basically admitting they violated the law.' I would go further. In my nearly 20 years as a federal prosecutor, there were innumerable times when the Justice Department opted not to bring charges, despite convincing evidence of guilt. But the usual prerequisite for deferring or dismissing prosecution is an exhibition of contrition. Never have I seen a case in which the government, having gone to the trouble of filing charges and litigating to the threshold of victory, decided to forfeit for the benefit of defendants who had treated both the case and the judicial process with utter contempt.

And the strength of that case? Bartle Bull, a longtime Democratic activist and civil-rights lawyer -- and a prominent figure in the presidential campaigns of Bobby Kennedy and Jimmy Carter -- was on the scene in Philadelphia that day. Unlike Thernstrom, he relied on his eyes and ears, not his intuition about 'prime spots' for intimidating white voters. He filed an affidavit elaborately describing the Panthers' menacing, and concluded that it 'qualif[ied] as the most blatant form of voter intimidation I have encountered in my life in political campaigns in many states, even going back to the work I did in Mississippi in the 1960's.' The Panthers, he averred, engaged in 'a racially motivated effort to intimidate both poll watchers aiding voters, as well as voters with whom the men did not agree.'

Bull's conclusion is echoed by J. Christian Adams. He is the veteran civil-rights prosecutor who was responsible for the case until Team Obama pulled the rug out from under him. He describes the Panthers' conduct as 'the simplest and most obvious violation of federal law I saw in my Justice Department career.' He sounds an awful lot like Thernstrom -- last year's model. The new Thernstrom gives Adams the back of her hand: He is, she says, 'disgruntled,' as though her attempts to divine his motives were dispositive.

#page#Such mind-reading doesn't have to meet the same 'very high' standards as civil-rights law. In fact, you apparently don't even have to be in the room. Readers will be surprised to learn that Thernstrom didn't bother to attend the Commission proceeding in which Adams testified. (The transcript for the July 6 hearing is here.) She's rejecting the credibility of a veteran prosecutor with an exemplary record -- and, as we shall see, far more knowledge about the applicable law than she has -- despite having forgone her opportunity to observe his testimony and ask him questions.

Interestingly, Thernstrom hasn't always thought Adams was unreliable. In Voting Rights and Wrongs -- The Elusive Quest for Racially Fair Elections, a book she published last year (just after writing her condemnatory letter to the Justice Department), she made a point in the acknowledgments of thanking 'J. Christian Adams,' one of the handful of people who 'generously' provided 'painstaking reviews' of her manuscript, and 'caught errors and made valuable suggestions.'

#ad#Plainly, her NRO op-ed could also have benefited from a once-over by Adams. Having dismissed the 'unarmed' Panthers wearing Stephan Thernstrom's boots as a trifle, Thernstrom protests that the 'disgruntled' former prosecutor has provided only vague 'indications' that 'polling place thugs were deployed elsewhere.' 'Indications?' she asks in mock amazement. 'Again,' Thernstrom tut-tuts, 'evidence has yet to be offered.'

It's difficult to quantify how disingenuous this is. Having blithely skipped Adams's Commission testimony, Thernstrom is shamefully misrepresenting his short Washington Times essay about the case. In it, Adams points out that 'the law clearly prohibits even isolated incidents of voter intimidation.' It doesn't matter whether there are 'indications' that the Panthers were pulling the same stunt at other polling places. The violation of law is complete with the incident at the Philadelphia polling station.

That is, Thernstrom is kicking dust in your eyes. Adams was not saying his case was built on vague 'indications.' He said his case (which the Panthers did not even attempt to refute) was bulletproof, and that his investigation also uncovered 'indications' of even more widespread voter intimidation. Those 'indications' were not necessary to make the case; they were additional justification for why it was important to bring the case -- in furtherance of what last year's Thernstrom recognized as the Justice Department's 'moral obligation to prevent voting-rights violations.' Moreover, even in his brief op-ed, Adams did not just leave it at 'indications.' He related, in another passage Thernstrom omits, that 'the Black Panthers in October 2008 announced a nationwide deployment for the election.'

Similarly misleading is Thernstrom's claim that there has been no 'actual evidence that any voters were intimidated.' Again, as Adams points out, but Thernstrom elects not to mention, the law does not require actual intimidation of voters. Attempts to intimidate suffice.

That's not all. Section 11(b) of the Voting Rights Act proscribes attempts to intimidate not only voters but anyone aiding a person to vote. That would include the poll-watchers Bartle Bull saw the Panthers threatening. Nor did the Commission have only Bull's sworn account. While Commissioner Thernstrom carefully elides this detail, two African-American poll watchers testified to the Commission that they were personally threatened by the Panthers. (These were black Republicans, so maybe that doesn't count at Politico and the Washington Post, but you would think it might register with Thernstrom.)

Echoing Thernstrom, Politico makes the lawyerly claim that 'no voters attested to being turned away.' Even if it were necessary to prove that voters were prevented from voting (and it's not), the poll-watchers testified that voters approaching the polls promptly turned around and left upon seeing the menacing Panthers stationed out front. Clearly, that is part of why Adams so confidently concludes that voters were affected by the Panthers' tactics, even though no such evidence is required. It is part of why Bull, the eyewitness Thernstrom and Politico would rather you didn't know about, thought the Panthers' intimidation of voters and poll-watchers was 'blatant.'

The most appalling part of Thernstrom's performance, though, is its context. How can a prominent commissioner, having thundered about the Justice Department's 'moral obligation to prevent voting-rights violations,' complain about a purported lack of evidence when the Justice Department has been stonewalling the Commission for over a year? Indeed, that stonewalling was the reason for Thernstrom's letter to King last June. The only differences between then and now are (a) the stonewalling has gone on for another 13 months, in contempt of subpoenas and requests for cooperation with the Commission's lawful mandate; (b) the public record of the Department's abdicating its 'moral obligation' in the Panthers case is now overwhelming; (c) more significantly, there is growing evidence that the Panthers case is just a symptom of the Obama Justice Department's systematic racism in the enforcement of the civil-rights laws; and (d) this systematic abuse gravely imperils the integrity of upcoming federal elections.

#page#Thernstrom's specious derision of Adams for purportedly failing to produce evidence comes against the backdrop of his having had to resign in order to comply with a lawful Commission subpoena. Attorney General Holder and his advisers refused to permit him to testify. They are also blocking Christopher Coates, the former chief of DOJ's Voting Rights Section, from cooperating with the Commission's investigation, going so far as to transfer him to South Carolina -- which, as the Washington Times observes, just happens to be outside the Commission's statutory subpoena range. In effect, they are making a mockery of the body on which Thernstrom has served for years as a prominent leader.

The Panthers case is obviously not small potatoes. It illuminates a Justice Department convinced that most Americans are not entitled to equal protection under the law and, accordingly, engaged in invidious enforcement discrimination. Nor is the allegedly 'disgruntled' Adams alone in leveling this allegation. Other attorneys of sterling reputation, including Hans von Spakovsky, have come forward with affidavits that, if accurate, describe an outrage against the Constitution. At a minimum, the appearance of impropriety is so patent it cries out for investigation of the sort the Civil Rights Commission is mandated, by statute, to do.

#ad#And worse, Adams has explained that the Obama Justice Department's racially discriminatory enforcement approach includes the refusal to enforce Section 8 of the National Voter Registration Act -- the anti-fraud provision that calls on states to purge ineligible voters from their rolls (e.g., the dead, non-residents, non-citizens, felons, and others who may be legally barred from voting in elections). Adams expanded on this (on pages 63–65 of the July 6 hearing transcript). In July 2009, Julie Fernandes, the deputy assistant attorney general (the second-ranking lawyer in DOJ's Civil Division), told her subordinates, 'We have no interest in enforcing this provision of the law. It has nothing to do with increasing turnout, and we are just not going to do it.'

Is the 'disgruntled' Adams lying? You be the judge. Adams reports that Fernandes's jaw-dropping pronouncement was made in front of a room full of people, including Voting Rights Section lawyers. Yet, the Obama administration is refusing to allow those lawyers to testify before the Commission. Further, as I have previously recounted (in this 'Broadside' pamphlet for Encounter Books), and as von Spakovsky has explained here at NRO, the Bush Justice Department filed an action against the state of Missouri to enforce compliance with Section 8. But, as it did with the Panthers case, the Obama Justice Department quietly dismissed the suit.

Small potatoes, right? Just like when the Obama Justice Department used its Voting Rights Act muscle to prevent Georgia from validating the U.S. citizenship of prospective voters. The New Black Panther Party case is not about the detestable Samir Shabazz and his fellow bigots. It is about a pattern. It is about the Justice Department actively signaling to the Democratic party's unscrupulous street operators -- the Panthers, the SEIU, ACORN and its progeny -- that the voter fraud and intimidation light is green. The civil-rights laws will not be enforced. The Justice Department will not protect the integrity of our elections.

Abigail Thernstrom is too smart not to know that.

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

Full post as published by Bench Memos - National Review Online on July 20, 2010 (boomark / email).