The Department of Justice and liberal media have argued that the controversy over the Department's dismissal of its voter intimidation case against the New Black Panther Party--after the case had already been won by default--is much ado about nothing. DOJ's position has been that the decision to drop the case was made by "the top career attorneys in the Civil Rights Division," solely on the basis of the merits of the case. Considerable doubt has been cast on that claim, however, by the privilege log DOJ produced last week in the Freedom of Information Act case brought by Judicial Watch.
A privilege log is a list of documents that a party to a lawsuit is not producing on the ground that they are protected by the attorney-client or work product privilege. Lawyers generally scrutinize privilege logs closely to see what sorts of documents are being withheld; often, a great deal can be inferred from the description given a document on the privilege log.
Chris Adams, the DOJ lawyer who blew the whistle on the New Black Panthers case, writes:
Judicial Watch made an explosive announcement today about the Justice Department's stonewalling in the New Black Panther voter intimidation case dismissal. Forced to bring a Freedom of Information Act (FOIA) lawsuit after DOJ rebuffed its public records request (so much for transparency), Judicial Watch obtained a privilege log from the DOJ last week.
It shows -- in a rather dramatic way -- that the DOJ has been untruthful about who was involved in the dismissal of the case. ...
[T]he real whopper? DOJ's claim -- repeated over and over again -- that career civil servants were wholly responsible for the spiking of the case.
Today we learn, from the Department's own records, that this claim is demonstrably false.
The privilege log produced in the FOIA litigation contains stunning entries. They show regular discussions and deliberations between the highest political officials inside the DOJ, including the deputy attorney general and the associate attorney general, about what to do with the case. This contradicts numerous statements made to Congress, the Civil Rights Commission, and to the public.
The privilege log indicates that senior political appointees including Deputy Attorney General David Ogden and former Democratic Party operative Sam Hirsch, who now serves as deputy associate attorney general, were deeply involved in the disposition of the case:
For example: on May 10, 2009, the third highest-ranking official inside the DOJ -- Associate Attorney General Tom Perrelli -- emailed Sam Hirsch, one of his deputies:
Where are we on the Black Panther case?
The description of the email contains a bombshell:
asking for update on the NBPP litigation between officials in the [Associate's office] and noting the [deputy attorney general's] current thoughts on the case.
...As deputy associate attorney general -- a senior Obama political appointee -- Hirsch emerges in the privilege logs as the fulcrum around which the New Black Panther case was dismissed. Throughout April and May 2009, Civil Rights Division political appointee Steve Rosenbaum engaged in extensive legal analysis with Hirsch. In turn, Hirsch had extensive communications with Associate Attorney General Perrelli about the case. The emails are sometimes described as "deliberations" between the senior political appointees. These are deliberations which the DOJ inferred never existed. Nothing more than a dispute between civil servants, they repeated without equivocation.
The privilege logs show at least thirteen communications between Hirsch and Perelli in the two weeks before the dismissal on May 15.
The log also shows that senior political appointees at DOJ went into spin-control mode when Michelle Malkin broke the story of the dismissal of the case against the NBPP:
The logs show political officials Hirsch and Rosenbaum, and a press spokesperson, swinging into action as soon as the press reported the dismissal on May 28, 2009. "Response to Malkin" shows up on May 28 -- they were coordinating a response to Michelle Malkin's exclusive breaking the story of the outrageous dismissal. These communications are characterized by the log as "pre-decisional," and therefore protected. Of course, the decision to dismiss the case had already been made. I can't wait to see what the court does with that in the FOIA litigation. (Though I suppose the decisions about how to cover up the truth of the dismissal were in the formative, pre-decisional process.)
In our modern history, the Department of Justice has almost always operated in an admirably non-political fashion. That proud tradition has been badly undermined by Barack Obama and Attorney General Eric Holder.