Right-wing media smear Holder as having racial motivation in “inexplicably” dropping the case against the New Black Panthers

RedState accused Holder of “judging people by the color of their skin”; says, “It's impossible to believe that President Obama and his Administration actually buys in to this idea that we have moved beyond race and into a color blind society.” In a July 7 post titled, “Judged by the Color Of Their Skin And Not By The Content Of Their Character?” RedState accused the Obama administration and specifically Holder of “judging people by the color of their skin” with the Civil Rights Division's decision to drop the prosecution of the New Black Panthers:

It's impossible to believe that President Obama and his Administration actually buys in to this idea that we have moved beyond race and into a new generation of a color blind society, when you consider the blatant reverse discrimination his Attorney General (yes, his African American Attorney General) Eric Holder has been pursuing in the name of leveling the playing field in matters of Justice. Holder, it would seem, is still judging people by the color of their skin.

Consider the latest news on the story about the “alleged” New Black Panther Party voter intimidation case first reported back on election day 2008. Check the video for yourself here...and then join me after the jump to find out why a white guy from the DOJ quit his job so he could testify before the US Commission on Civil Rights about Obama's Administration, and his useful idiot Holder, and how they really can't be bothered to worry about white victims of black-perpetrated crimes anymore. Apparently, suing a State for making laws the Fed refuses to enforce is way more cool than enforcing voter intimidation laws...so long as only black guys are committing them against white people at least.

Fox's Doocy, Kilmeade, and Perino claimed that Holder “inexplicably” dropped the “slam dunk” case against the NBP. On the July 7 edition of Fox News' Fox & Friends, Fox News contributor Dana Perino falsely claimed that the case against the New Black Panthers was “clear cut” until the “Obama administration told [DOJ attorneys] to drop the case” without “a convincing reason” as to why. Co-host Brian Kilmeade said that the case was a “slam dunk” while co-host Steve Doocy falsely claimed that “initially [the DOJ] did win a default judgment against these guys and then, inexplicably, the attorney general drops it.” Perino championed longtime GOP activist and former DOJ prosecutor Christian Adams for testifying against the DOJ before the U.S. Commission on Civil Rights, in which Adams repeatedly claimed that the case was dropped because of racial bias. From Fox & Friends:

GRETCHEN CARLSON (co-host): Let's talk about that scuttlebutt we've been hearing for the past couple of days regarding the Department of Justice, and whether or not they were going to continue on with the case against the Black Panthers. We all saw that video during 2008.

PERINO: It's chilling.

[...]

PERINO: I think that one thing that we have to remember is that while, yes, the Department of Justice decided not to go forward with the case, let's back up. The career prosecutors who were working on this case said that it was clear cut. They were moving forward.

KILMEADE: Slam dunk.

PERINO: And they were shocked when the political appointees of the Obama administration told them to drop the case. And they don't think that they got a convincing reason. And then you had Christian Adams, who was a career civil servant at the Department of Justice, having to make the very tough decision to leave his job, which he decided to do. He resigned from a -- he had worked so hard, but he decided it was not acceptable to him to have to live under that, so he resigned. I don't know if we'll ever find out the truth.

I know that if I -- when I was press secretary, I certainly -- and in the situation had been reversed, I definitely would have been asked if the White House knew about it or at least what the White House thought about it, because what we should get now from the Justice Department is at least some sort of an explanation as to why they thought it wasn't a good case.

DOOCY: Because, initially, they did win a default judgment against these guys, and then, inexplicably, the attorney general drops it.

Hot Air hyped Adams' accusations and falsely suggested that under Obama, “the federal government had suddenly become disinterested in voter intimidation.” In a July 6 post titled, “The nice young man Eric Holder let off the hook,” Hot Air's Ed Morrissey claimed that Holder “suddenly reversed course and had the DoJ dismiss the voter-intimidation case” against the New Black Panther Party -- a case Morrissey claimed the federal government “had already won.” Morrissey also hailed Adams for “go[ing] public with [his] outrage.”

Wash. Times: "[I]t is only under the Obama Administration that top appointees have allowed and even encouraged race-based enforcement as either tacit or open policy." In a July 6 editorial titled, “Black Panther case: Racism rules,” The Washington Times falsely claimed that DOJ's decision to drop the voter-intimidation case against the New Black Panther Party in Philadelphia was based on “racism” and is proof that “it is only under the Obama administration that top appointees have allowed and even encouraged race-based enforcement as either tacit or open policy.” From the editorial:

Former Justice Department lawyer J. Christian Adams made explosive allegations yesterday in testimony to the U.S. Commission on Civil Rights, saying that a particular Justice Department official openly announced that civil rights laws would not be enforced to protect white voters. He also said he saw race-based harassment within the department itself.

“It was lawlessness,” Mr. Adams told the commission. He testified about the department's bizarre decision last year to drop voter-intimidation cases it effectively had won against members of the New Black Panther Party. Mr. Adams, one of the trial attorneys who built the case, resigned from the Justice Department on June 1 in protest. His testimony focused at length on the broader policy choices underlying his superiors' decision to drop the cases over his objections and those of five other lawyers.

[...]

To bolster his allegations, Mr. Adams provided the Commission on Civil Rights with a list of other instances in which, he claimed, either the Justice Department refused to bring cases because of the race of those involved or in which officials made comments hostile to race-neutral enforcement. “They don't want to help white victims,” he said, adding that a number of other Justice Department officials, past and present, would surely testify similarly if under oath. The Washington Times has reported since last fall that such racial bias infuses the Civil Rights Division.

Mr. Adams later explained to The Washington Times that while the hostility towards protecting white victims has long been pervasive within the division, it is only under the Obama administration that top appointees have allowed and even encouraged race-based enforcement as either tacit or open policy.

If the law can be so selectively enforced, he said, “it's tragic.” It's also borderline criminal, at least. Heads should roll.

But the Civil Rights Division decided to drop the case against three of the defendants for insufficient evidence

GOP activist Adams' accusations against DOJ are completely unsubstantiated. As Media Matters for America has documented, attorney J. Christian Adams -- the DOJ “whistleblower” whom the right-wing media have trumpeted -- is a longtime GOP activist who was reportedly hired by a Bush appointee who politicized the Justice Department. Adams has admitted that his allegations against the DOJ are based on hearsay -- not firsthand evidence. Further, a GOP appointee to the Civil Rights Commission has cast doubt upon whether Adams had any direct knowledge of the DOJ's decision, saying: “I know Chris Adams very well, and he doesn't know why the decision was made, which was the question ... we were supposed to be addressing at this Commission.”

Assistant AG Perez testified that Loretta King and Steve Rosenbaum made the decision on how to proceed with the New Black Panthers case. On May 14, Assistant Attorney General Thomas Perez of the Civil Rights Division of the DOJ testified that it was then-Acting Assistant Attorney General Loretta King and Acting Deputy Assistant Attorney General Steve Rosenbaum who made the decisions about how to proceed with the NBP case:

The judgment in this case to proceed in the way that was chosen was made by Steve Rosenbaum and ultimately by Loretta King based on a review of the totality of the circumstances.

Perez testified that King and Rosenbaum “have been in the Division for 30 years,” worked for both Republican and Democratic administrations, and that “this is a case about career people disagreeing with career people.” Contrary to Perino's misleading claim that Obama appointees overruled “career prosecutor[s],” while at the time King and Rosenbaum were acting in the capacity of political appointees during the transition period, Perez testified that the two were “career” attorneys who had “been in the [Civil Rights] Division for 30 years” and had “worked in the administration of George W. Bush, George H.W. Bush, and many other Presidents.” Indeed, Rosenbaum was reportedly once promoted to the head of voting rights in the Civil Rights Division by former President George H.W. Bush. Perez also testified that this was “a case about career people disagreeing with career people”:

Two people, Loretta King and Steve Rosenbaum, have been in the Division for 30 years. They worked in the administration of George W. Bush, George H. W. Bush, and many other Presidents.

[...]

I have worked at the Department under Republican and Democratic leadership. And I have been involved in many, many cases where you look at evidence. And reasonable people of good faith can take a look at evidence and draw different conclusions from the evidence. This is a case about career people disagreeing with career people. That happens very often.

Perez: The decision not to pursue additional charges against three of the four defendants was made because the “allegations ... did not have sufficient evidentiary support.” Contrary to Doocy's, Perino's, and Morrissey's claims, Perez directly addressed the decision not to pursue additional charges in May 14 testimony before the U.S. Commission on Civil Rights. He testified that after the Civil Rights Division conducted an inquiry into the NBP voter-intimidation case and “reviewed the totality of the evidence in the applicable law,” it decided to drop the charges against the New Black Panther Party, its leader, and another defendant for insufficient evidentiary support and also decided to enjoin another defendant against displaying a weapon within 100 feet of a polling place in Philadelphia. From the testimony:

Moving to the matter at hand, the events occurred on November 4th, 2008. The Department became aware of these events on Election Day and decided to conduct further inquiry.

After reviewing the matter, the Civil Rights Division determined that the facts did not constitute a prosecutable violation of the criminal statutes. The Department did, however, file a civil action on January 7th, 2009, seeking injunctive and declaratory relief under 11(b) against four defendants.

The complaint alleged that the defendants violated Section 11(b) because they attempted to engage in and engaged in both voter intimidation and intimidation of individuals aiding voters.

Although none of the defendants responded to the complaint, the Department had a continuing legal and ethical obligation to ensure that any relief sought was consistent with the law and supported by the evidence.

Based on the careful review of the evidence, the Department concluded that the evidence collected supported the allegations in the complaint against Minister King Samir Shabazz. The Department, therefore, obtained an injunction against defendant King Samir Shabazz, prohibiting him from displaying a weapon within 100 feet of an open polling place on any Election Day in the City of Philadelphia or from otherwise violating Section 11(b).

The Department considers this injunction to be tailored appropriately to the scope of the violation and the constitutional requirements and will fully enforce the injunction's terms.

Section 11(b) does not authorize any other kinds of relief, such as criminal penalties, monetary damages, or civil penalties.

The Department concluded that the allegations in the complaint against Jerry Jackson, the other defendant present at the polling place, as well as the allegations against the national New Black Panther Party and its leader, Malik Zulu Shabazz, did not have sufficient evidentiary support. The Department reviewed the totality of the evidence in the applicable law in reaching these decisions.

[...]

As it related to the national party, the determination was made -- as you know, there is no vicarious liability when incidents occur. The New Black Panther Party stated that they were going to have 300 poll watchers across America. We are unaware of any incident that occurred anywhere besides Philadelphia.

So the evidence in that particular context demonstrated or suggested that if there was indeed a national conspiracy to intimidate voters, that there would have been, it stands to reason, activity elsewhere.

So as it related to the national party and the national president -- and, again, the evidence showed that shortly after the election, the national party disavowed the activities and actions of the two people acting locally. And so that judgment was made not to seek that -- the evidence did not support the actions against the national party and the national chairman.

[...]

In this case, the conclusion was made that, as to the defendant who had the nightstick, that there was indeed sufficient evidence to sustain the charge. And so the default judgment was sought and obtained as it related to him.

[...]

And as it related to the other defendants in the case, Ms. King and Mr. Rosenbaum concluded that the evidence did not support that. And that was the decision that they made.

Section 11 (b) of the Voting Rights act is rarely used and difficult to try. According to Main Justice, “The Section 11 (b) civil authority under which the Black Panthers lawsuit was filed is rarely used, since criminal acts of voter intimidation are usually referred for prosecution.” Main Justice noted that the “first known 11 (b) case ... came in 1992, when the government filed suit against North Carolina Republicans and the campaign of then-Sen. Jesse Helms (R-N.C.) for sending threatening postcards” to mostly black voters. It added that “there were no more 11 (b) cases until 2005,” when the Bush administration filed a case alleging that black officials in Mississippi engaged in “systematic discrimination against white voters,” prompting critics to claim that “the manner in which the Bush DOJ used section 11 (b) turned the spirit of the Voting Rights Act on its head,” because it was “passed amid incidents of beatings and harassment in the South by white mobs and Ku Klux Klan members against people demonstrating for black voting rights.”

In his May 14 testimony, Perez also discussed the rarity and difficulty in trying Section 11 (b) cases:

At the outset, let me emphasize with respect to Section 11(b) decisions that these are hard cases. Very few such cases have been brought. In fact, we can find records of only three cases filed by the government under Section 11(b) since its inception.

The standards for proof are high. And, as in every case, the question to be addressed is whether the evidence is sufficient to sustain the burden of proof. And on that question, reasonable minds can differ and can look at the same set of facts but draw different conclusions regarding whether the burden of proof has been met.

Republican vice-chair of the U.S. Commission on Civil Rights said “forget about” the “small potatoes” New Black Panther Party case. In a National Review Online article, Abigail Thernstrom, the Republican vice-chair of the U.S. Commission on Civil Rights, called the manufactured controversy surrounding the New Black Panthers Party case “small potatoes” and encouraged readers to “forget about the New Black Panther Party case,” commenting that “too much overheated rhetoric filled with insinuations and unsubstantiated charges has been devoted to this case.” From the July 6 NRO article:

Forget about the New Black Panther Party case; it is very small potatoes. Perhaps the Panthers should have been prosecuted under section 11 (b) of the Voting Rights Act for their actions of November 2008, but the legal standards that must be met to prove voter intimidation -- the charge -- are very high.

In the 45 years since the act was passed, there have been a total of three successful prosecutions. The incident involved only two Panthers at a single majority-black precinct in Philadelphia. So far -- after months of hearings, testimony and investigation -- no one has produced actual evidence that any voters were too scared to cast their ballots. Too much overheated rhetoric filled with insinuations and unsubstantiated charges has been devoted to this case.

A number of conservatives have charged that the Philadelphia Black Panther decision demonstrates that attorneys in the Civil Rights Division have racial double standards. How many attorneys in what positions? A pervasive culture that affected the handling of this case? No direct quotations or other evidence substantiate the charge.

Thomas Perez, the assistant attorney general for civil rights, makes a perfectly plausible argument: Different lawyers read this barely litigated statutory provision differently. It happens all the time, especially when administrations change in the middle of litigation. Democrats and Republicans seldom agree on how best to enforce civil-rights statutes; this is not the first instance of a war between Left and Right within the Civil Rights Division.

No voters have alleged intimidation stemming from incident. In an April 23 hearing on the DOJ's decision in the case, Civil Rights Commissioner Arlan Melendez noted that “no citizen has even alleged that he or she was intimidated from voting,” which “was clear to the Justice Department last spring, which is why they took the course of action that they did.” A July 2 article at the legal news website Main Justice further reported that “no voters at all in the Philadelphia precinct have come forward to allege intimidation” adding, “The complaints have come from white Republican poll watchers, who have given no evidence they were registered to vote in the majority black precinct.”

Bush-era DOJ also chose not to prosecute a similar case against Arizona Minutemen

Perez: "[T]he Department declined to bring any action for alleged voter intimidation" in 2006. In his May 14 testimony before the Commission on Civil Rights, Perez highlighted a case that completely undermines the notion that the DOJ's decisions in the Black Panthers case were unprecedented or racially motivated. Perez testified that in 2006, the DOJ “declined to bring any action for alleged voter intimidation” “when three well-known anti-immigrant advocates affiliated with the Minutemen, one of whom was carrying a gun, allegedly intimidated Latino voters at a polling place by approaching several persons, filming them, and advocating and printing voting materials in Spanish.” [U.S. Commission on Civil Rights, 5/14/10]

Anti-immigrant activist in 2006 case reportedly had “9mm Glock strapped to his side” at polling place. A November 8, 2006, Austin American-Statesman article reported (from the Nexis database): “In Arizona, Roy Warden, an anti-immigration activist with the Minutemen, and a handful of supporters staked out a Tucson precinct and questioned Hispanic voters at the polls to determine whether they spoke English.” The article continued:

Armed with a 9mm Glock automatic strapped to his side, Warden said he planned to photograph Hispanic voters entering polls in an effort to identify illegal immigrants and felons.

Arizona Daily Star: "[A]nti-immigrant activist" “stood by with a firearm in a holster.” A November 8, 2006, Arizona Daily Star article reported (from Nexis):

A crew of anti-immigrant activists, meanwhile, visited several South Side polling places in what one poll-watch group called a blatant attempt to intimidate Hispanic voters.

Anti-immigrant crusader Russ Dove circulated an English-only petition, while a cameraman filmed the voters he approached and Roy Warden stood by with a firearm in a holster.

Diego Bernal, a staff attorney with the Mexican American Legal Defense and Education Fund (MALDEF), said the trio was trying to intimidate Hispanic voters. “A gun, a camera, a clipboard before you even get to the polls - if that's not voter intimidation, what is?” he asked.

Bernal said his group encountered the men at the Precinct 49 polling place at South 12th Avenue and West Michigan Street and began documenting the scene with their cameras. “There was an interesting period where they were taking pictures of us taking pictures of them.”

Tucson Citizen: Incident “reported to the FBI.” A November 8, 2006, Tucson Citizen article (from Nexis) reported that Bernal “said he reported the incident to the FBI.” The article also reported that Pima County elections director Brad Nelson said: “If intimidation or coercion was going on out there, even though it might have been outside the 75-foot limit, it's something we take very seriously, and we'll be looking into it.”

The New York Times noted that Bush's DOJ “discouraged” “high-impact civil rights enforcement against policies ... where statistics show that minorities fare disproportionately poorly.” An August 31, 2009, New York Times article noted that under George W. Bush's administration, “appointees had discouraged such tactics” as “high-impact civil rights enforcement against policies ... where statistics show that minorities fare disproportionately poorly”:

As part of this shift, the Obama administration is planning a major revival of high-impact civil rights enforcement against policies, in areas ranging from housing to hiring, where statistics show that minorities fare disproportionately poorly. President George W. Bush's appointees had discouraged such tactics, preferring to focus on individual cases in which there is evidence of intentional discrimination.