Obama's Enforcer
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One of the division lawyers involved was Karla Dobinski. Dobinski was the “taint attorney”—the lawyer assigned to make sure that the defendants’ rights were not violated by the division prosecutors using privileged information such as the compelled testimony provided by the officers to internal investigators at the police department. The judge was appalled that the lawyer assigned to ensure that the constitutional rights of the defendants were protected was personally fanning the “flames of those burning to see [the defendant] convicted” before the jury even got the case.
Judge Engelhardt spent ten pages of his order just describing the ethical rules and federal regulations violated by Justice lawyers. He clearly believed that Holder’s Justice Department tried to hide what happened because trying to get information out of the department was like “slowly peeling layers of an onion.” He was also suspicious that DOJ’s reports on the internal investigation were “edited by a supervisor so as to coyly provide less information, rather than more.” Reportedly, the supervisors on the case were Deputy Attorney General James Cole (the number-two Obama political appointee at Justice directly under Eric Holder) and an assistant.
The judge noted that an FBI special agent used “shockingly coercive tactics” against defense witnesses. Because of threats of prosecution for perjury over their earlier grand jury testimony by the lead prosecutor of the division, Barbara “Bobbi” Bernstein, three of those witnesses refused to appear at trial on behalf of the defendants. The judge found it highly suspicious that twenty-six months after the trial, not one of those potential witnesses who could have provided exculpatory evidence had “been charged with any crime whatsoever.”
Engelhardt pointed the finger of blame in this case directly at Eric Holder. Just like in the incident involving George Zimmerman and Trayvon Martin in Florida, the radical civil rights organizations that are the allies of the administration had clamored for federal prosecutions of the New Orleans police officers. The fact that Dobinski and Bernstein remained employed at the department and that no disciplinary action was taken against them is a sad but telling comment on the behavior that Eric Holder finds acceptable in his prosecutors—if they are liberals who push the kinds of prosecutions that he and the administration’s political allies want. As the court noted, this demonstrated a get-a-conviction-at-any-cost attitude by Holder and his minions in the Civil Rights Division:
The indictment in this case was announced with much fanfare, a major press conference presided over by U.S. Attorney General Eric Holder, and widespread media attention. . . . A DOJ representative said that the indictments “are a reminder that the Constitution and the rule of law do not take a holiday—even after a hurricane.” While quite true in every respect, the Court must remind the DOJ that the Code of Federal Regulations, and various Rules of Professional Responsibility, and ethics likewise do not take a holiday—even in a high-stakes criminal prosecution, and even in the anonymity of cyberspace. . . . [T]he Court simply cannot allow the integrity of the justice system to become a casualty in a mere prosecutorial game of qualsiasi mezzo [by any means necessary].
Would that the New Orleans fiasco was an isolated example of Justice’s Civil Rights Division abuses.
Under Eric Holder’s direction and the supervision of one of the administration’s most radical political appointees, Thomas Perez,3 the assistant attorney general for civil rights from 2009 to 2013, the Civil Rights Division has pursued a militant civil rights agenda intended to help Democrats win elections and implement their progressive version of a socialized America where racial, ethnic, and sexual quotas are required in everything from college admissions to public employment to school discipline.
Perez, with the collaboration of the overwhelmingly liberal career staff in the division, waged a war on religion; abused federal law to restrict the free speech of pro-life activists; went after school districts for having dress codes that don’t allow boys to come to class in drag or for implementing voucher programs to help students get out of bad schools; tried to stop states from improving election integrity efforts through voter ID or the verification of the citizenship of registered voters; and arranged a quid pro quo deal to protect an unsupportable race-centric legal theory—disparate impact—used to extort huge settlements from banks and mortgage lenders. The division has been at the forefront of enforcement that is based on liberal ideology and partisan politics, rather than objective law enforcement and the pursuit of justice. Bob Driscoll, a former chief of staff in the Civil Rights Division, says that today “it is more like a government-funded version of advocacy groups such as the ACLU or the NAACP Legal Defense Fund than like government lawyers who apply the facts to the law.”4
All of this has been quite deliberate. Holder claimed he was “offended” at the way the Bush administration had supposedly transformed the Justice Department, and particularly the Civil Rights Division, which he calls the “crown jewel” of the Department.5
Created by the Civil Rights Act of 1957, the division is charged with enforcing federal discrimination laws in voting, employment, housing, immigration, and education. The division is divided into eleven “sections” that have responsibility for different areas, such as the Voting Section. The nearly ninety lawyers and staff in that section enforce the Voting Rights Act, the National Voter Registration Act, and other federal voting laws. At a time in our nation’s history when we have less discrimination than we have ever had before, the division is the largest it has ever been and has enormous power to abuse the law and shape the legal environment that governs many different areas of our culture and economy.
A longtime, current employee of the division told one of the authors that in the employee’s opinion, the current administration has:
racialized and radicalized the division to the point of corruption. They embedded politically leftist extremists in the career ranks who have an agenda that does not comport with equal protection or the rule of law; who believe that the ends justify the means; and who behave unprofessionally and unethically. Their policy is to intimidate and threaten employees who do not agree with their politics, and even moderate Democrats have left the department, because they were treated as enemies by administration officials and their lackeys. Another black employee who has worked for the Justice Department for decades said to me that “there is no justice left in Justice under this administration.”
From his first day in office, Eric Holder has misused the power of the Civil Rights Division, starting almost immediately with his dismissal of the voter intimidation case against the New Black Panther Party over its actions in Philadelphia in the 2008 election. In March 2013, the inspector general of the Department of Justice, Michael Horowitz, released a report on the operations of the Voting Section of the division that is a disturbing and sad commentary on the mismanagement and misbehavior of the people who work there.6 The problems exposed in the report are rampant throughout the entire division, problems that have existed for many years but were greatly exacerbated by the Obama administration.
The IG report describes a dysfunctional division torn by “polarization and mistrust,” a division beset by unprofessional and unethical behavior, a division in which career civil service employees who are perceived by other employees as conservatives or Republicans or who believe in the race-neutral enforcement of federal discrimination laws are subjected to racist comments, harassment, intimidation, bullying, and even threats of physical violence. It is a division that has experienced other misbehavior by career employees that has gone unpunished, such as perjury and the use of a government credit card to pay for romantic trysts with a mistress.7 It has engaged in biased hiring practices intended to ensure a staff with a radical, left-wing ideology and has pursued meritless cases, working not on behalf of the American public as a neutral law enforcement agency but to achieve political and ideological objectives.
None of this comes as a surprise. For decades, the division has hired almost exclusively from the ranks of liberal advocacy organiza
tions. The career leadership of the division, like in most government agencies, provides substantive expertise and continuity from one administration to the next. However, the career lawyers in the Civil Rights Division are overwhelmingly liberal and have always manipulated the hiring process to ensure that the staff remains that way. In December 2000, when it became clear that a Republican would be in the White House, the division underwent an unprecedented hiring binge to fill ninety civil service vacancies before the new administration came on board, according to the 2013 IG report.
For example, in a federal government that usually takes months to hire a new employee, the division issued a vacancy announcement on December 19, 2000, that closed on January 2 for eight positions in the Voting Section. Interviews were conducted over a three-day period, January 3–5, 2001, and by January 11, shortly before the inauguration of George Bush, the positions had been filled with individuals who were all “committed to the mission of civil rights,” that is, liberals who would fight the new administration. It was very clear the leadership was seeking to prevent the Bush administration from choosing career lawyers who might have a more moderate or conservative view of civil rights enforcement. The former director of human resources in the division told the IG that hiring “had never happened like that before and she believed that the hiring efforts were improper.” In fact, a Clinton political appointee “threatened to take control” of the hiring if the section chiefs failed to fill the slots quickly—and they “got the message loud and clear.”
These hiring tactics were brought back and increased exponentially under Eric Holder. There were hiring controversies in the Bush administration when Bush political appointees tried to impose a more balanced hiring process that would give experienced lawyers from across the political spectrum a chance to get hired. The former inspector general of the Justice Department, Glenn Fine, a Clinton appointee, issued a partisan report in 2009 thickly laced with bias, inaccuracies, gross exaggerations, and misstatements of both facts and the law. It criticized that hiring, which brought a small number of lawyers into the division who had not worked at liberal civil rights organizations, ignoring the biased hiring that had occurred during the Clinton administration. But then, the conclusion of the report was no surprise given that two of the lawyers who helped write the report were Tamara Kessler, a liberal former Civil Rights Division lawyer who actually worked alongside many of the leading critics identified in the report, and Mark Masling, also a former Civil Rights Division attorney and self-proclaimed “proud Democrat.”8
Just one example suffices of how biased Fine’s 2009 report was. One of the Appellate Section attorneys who figured prominently in the report—a Clinton political appointee who burrowed into the career civil service and then claimed she was victimized by the Bush political appointees—was promoted to a policy-making counsel position in the division’s new front office on the very first day of the Obama administration. This is a slot normally reserved for political appointees.
Vowing that they would correct the supposed “abuses” of the Bush administration, Eric Holder and the Obama administration established a hiring system that on its surface appears impartial, but in fact accelerated the practice of hiring only liberal, politically biased, and politically connected lawyers. The new system put an emphasis on experience with civil rights groups, which invariably are liberal and very partisan. It is no surprise, therefore, that 100 percent of all of the lawyers hired by Eric Holder for career civil service positions in the Civil Rights Division have been Democratic activists or ideological liberals and firebrands.
The 2013 IG report found that in the Voting Section alone, 56 percent of those hired since 2009 came from only five organizations: the American Civil Liberties Union, La Raza, the Lawyers’ Committee for Civil Rights, the NAACP, and the Mexican American Legal Defense and Educational Fund. The IG report says that the “Voting Section passed over candidates who had stellar academic credentials and litigation experience with some of the best law firms in the country, as well as with the Department” in order to hire those they considered to have a “commitment” to “traditional” civil rights, that is, liberals who support quotas, ethnic and gender entitlements, and a government-imposed racial spoils system. When a division deputy chief, Becky Wertz, was asked to prepare a list of career lawyers who had left during the Bush administration who could be recruited to return, she “could not explain why” she left off the names of the eight lawyers perceived to be “conservatives.” Bob Popper, a former deputy chief who finally left the division in 2013 out of frustration, says he was “routinely excluded from hiring decisions” starting in 2009 because he was perceived as a “conservative.”
One of the lawyers hired for the Voting Section by the Obama administration was Dan Freeman, a former ACLU attorney with no experience in the voting area. He boasted on his Facebook account that he had started the crowd booing Representative Paul Ryan at President Obama’s 2013 inauguration. Although such public displays of political bias are extremely damaging to the reputation of the division and its ability to maintain even the appearance of impartiality, the division did nothing publicly to disavow Mr. Freeman’s conduct or to discipline him. Why would it when the political appointees within the division and almost all of the career staff no doubt applauded Freeman’s behavior and saw nothing wrong with it?
Another graphic example is Anurima Bhargava, who was hired to be the career civil service head of the Educational Opportunities Section of the division. She is responsible for the appalling motion filed in August 2013 against Louisiana trying to stop its school voucher program, which helps poor kids get out of failing public schools, because it allegedly violated a forty-year-old desegregation order. It is a move that even the liberal Washington Post called an attempt “to trap poor, black children in ineffective schools.”9 Even though 9 out of 10 of the students who use the vouchers are black, the division claimed that the program was discriminatory because children leaving the bad schools would change the schools’ racial makeup. As the Washington Post says, it is “downright perverse” that the Obama administration would “use the banner of civil rights to bring a misguided suit that would block these disadvantaged students from getting the better education opportunities they are due.”
But Bhargava has a history of views on racial preferences and racial quotas that appear to be more important than a quality education for poor children, and was hired by the administration from the NAACP Legal Defense Fund precisely because of those views. She pursued numerous cases while at the NAACP seeking to expand the use of racial quotas in public schools. At a forum at the United Nations on minority issues, Bhargava told the attendees that public school systems should use the race, language, immigration status, and religion of students to assign them to schools. It is par for the course for the Holder Justice Department to hire as the head of the division’s education section such an appalling racialist who believes it should be legal to discriminate on the basis of race, religion, and other factors in an attempt to create her preferred progressive social outcome.
Since Eric Holder has been in charge, the division has brought numerous cases based on shaky legal theories like the Louisiana voucher case. For example, the division has filed a series of high-profile lawsuits against bankers and mortgage lenders. The law underlying these suits, the Fair Housing Act, requires that the government prove intentional discrimination. In spite of this legal requirement, the division has brought multiple suits based not on evidence of intentional discrimination, but rather on statistical evidence that supposedly shows a “disparate impact” on certain minority groups. These include cases against SunTrust Mortgage, Countrywide Financial, and Wells Fargo.
The banks chose to settle rather than fight the suits, though, out of fear of being labeled “racist” in court even though the dubious “disparate impact” theory “remains on legally unsound ground.”10 Holder also used these settlements to funnel money to liberal, ACORN-type advocacy groups. For example, the settle
ment with the AIG Federal Savings Bank required the payment of $1 million to an unrelated “qualified organization” (as decided by the Justice Department) to conduct social programs.11
Perez was so concerned about the disparate impact theory being challenged in court that he secretly engineered a quid pro quo deal with the city of St. Paul, Minnesota, in 2011 to void such a challenge. The move was so extraordinary that the House Committee on Oversight and Government Reform launched an investigation that detailed Perez’s unethical conduct.
St. Paul had a case pending before the Supreme Court, in which the division was not even a party, and which would have determined the validity of the disparate impact theory. Most legal scholars believed the Court was going to rule against the theory, undermining the “entire legal foundation of [Perez’s] political campaign of suing banks for discrimination based on dubious statistical evidence.”12
At the same time, the Justice Department’s Civil Division, a completely separate division of the department and not under Perez’s authority, was pursuing two claims against St. Paul under the federal False Claims Act that could have netted the American taxpayer $180 million for the city’s fraudulent certifications made to obtain federal housing grants. The Civil Division lawyers thought this would be an easy case to win because St. Paul’s certifications “were actually more than reckless and that the City had actual knowledge that they were false.”13
St. Paul’s case before the Supreme Court, on the other hand, involved the city trying to “force slumlords to adhere to housing codes, because low-income tenants, including minorities, were living in apartments with rats and inadequate heating.”14 The slumlords were trying to evade their obligations to improve living conditions by claiming that the housing codes intended to protect residents had a “disparate impact” on their minority tenants.