2008 voter-intimidation case against New Black Panthers riles the right

By Krissah Thompson
Washington Post Staff Writer
Thursday, July 15, 2010

A 2008 voter-intimidation case has become a political controversy for the Obama administration as conservative lawyers, politicians and commentators raise concerns that the Department of Justice has failed to protect the civil rights of white voters.

The discussion centers on whether the Justice Department's civil rights division mishandled a lawsuit against members of the New Black Panther Party, which was filed weeks before the Obama administration took office. The suit was focused on the party and two of its members, who stood out front of a polling place in Philadelphia on Election Day 2008 wearing military gear. They were captured on video and were accused of trying to discourage some people from voting. One carried a nightstick.

Conservatives complained last year when Justice officials narrowed the case, dropping the party and one of the men and focusing only the bearer of the stick. Department officials have said since then that they did not have sufficient evidence to pursue the case against the other defendants. Justice officials who served in the Bush administration have countered that the department had enough evidence to pursue the case more fully and called the decision to narrow it political. The matter caught the attention of some Republican lawmakers, who held up the confirmation of President Obama's assistant attorney general for civil rights for months asking for a congressional review of the case.

The conflict intensified last week when former Justice Department lawyer J. Christian Adams, who was hired during the Bush administration and helped develop the case, told the Commission on Civil Rights that he believed the case had been narrowed because some of his colleagues in the civil rights division were interested in protecting only minorities.

"There is no doubt that some people were hostile to this case," Adams said in a phone interview.

He recently resigned from the department and has helped make the case a cause among some conservatives, writing regular blog items and columns. His accusations turn the tables on criticism, in inspector general reports and elsewhere, that the Justice Department under Bush allowed politics to influence hiring and other decisions.

Department spokeswoman Tracy Schmaler denied Adams's allegations. "The department makes enforcement decisions based on the merits, not the race, gender or ethnicity of any party involved," Schmaler said. An internal probe by the Office of Professional Responsibility is pending, she said.

The controversy will continue to play out before the Commission on Civil Rights, which plans to issue a report in September. Members of the commission, who have heard hours of testimony, are divided on the merits of the case.

Abigail Thernstrom, a commission member and a senior fellow at the conservative Manhattan Institute, called it "small potatoes" and said conservatives should pursue more important issues against the Obama administration. The case, she pointed out, invokes a narrow and rarely used provision of the 1965 Voting Rights Act, which has been used successfully to prosecute only three times since its passage.

"If you want to criticize [Attorney General] Eric Holder, there are lots of grounds on which to criticize him," she said. "Why waste your breath on this one?"

Thernstrom said that she did not find Adams's testimony convincing and that the facts of the case raised doubts in her mind, noting that the Black Panthers were standing in front of a majority-black precinct that had voted overwhelmingly for Democrats in previous elections -- not a prime spot for intimidating white voters.

Todd Gaziano, director of the center for legal and judicial studies at the conservative Heritage Foundation who also serves on the commission, disagreed.

"Anyone who has seen the video and who reads [Adams's] testimony knows this is something that needs to be investigated," he said. Gaziano and other conservative members of the commission want to subpoena other Justice employees to dig further.

Thernstrom said she expects the commission, which has a conservative majority, will ultimately issue a report that mirrors Adams's account of the case.

"The new administration came in and essentially said we see this as a legitimate case, but we want this to be a more focused case on the individual carrying the stick. That is a judgment call," said Jon Greenbaum, legal director at the liberal Lawyers' Committee for Civil Rights Under Law, who supports the administration.

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