Along with clearing the Obama Justice Department of wrongdoing in its handling of the New Black Panther Party voter intimidation case, showing that an Obama administration appointee said that the case could not be dismissed in full, and revealing that the NBPP trial team seemed to withhold exculpatory information in its dealing with senior Justice Department attorneys, the Office of Professional Responsibility's report appears to clear up a loose end that has long gone unexplained -- and exposes the trial team as petty, deceitful, and incompetent.
One of the original claims made by former DOJ attorney, GOP activist, and conservative blogger J. Christian Adams in his first Fox News interview on the case was that one of the senior Justice Department attorneys who overruled the trial team's recommendations “hadn't even read the memos which detailed all of the facts and the law before he started arguing against the case.” According to Adams, this indicated that for that lawyer, Steve Rosenbaum, “the mind was mind up,” supposedly due to political partisanship and the Obama administration's unwillingness to enforce the law in a race-neutral manner. From the interview:
MEGYN KELLY: You say there is evidence that they did not review the facts of this case and even the briefs of this case.
ADAMS: Yeah. It's obviously false that they knew all the evidence. They -- Steve Rosenbaum hadn't even read the memos which detailed all of the facts and the law before he started arguing against the case. The mind was made up.
And it was so derelict and so corrupt that Chris Coates actually threw the memo at Rosenbaum and said, “How dare you make these arguments without even knowing what's in the briefs?”
Adams was making these claims based on his conversations with Christopher Coates, who had been the head of the Voting Section at the time of the case, about Coates' May 1, 2009, meeting with deputy Voting Section chief Robert Popper and Rosenbaum and Loretta King, both of whom were senior career DOJ attorneys who were serving as acting deputy assistant attorney general and acting assistant attorney general. At that meeting, King and Rosenbaum criticized the trial team's handling of the case.
In a September 2010 hearing before the U.S. Commission on Civil Rights, Coates said that he would not testify “about the statements made during my meetings with Ms. King and Mr. Rosenbaum because of the DOJ's assertion of the deliberative process privilege.” An October 2010 Weekly Standard article on the case based largely on interviews with the trial team reports only that the meeting led to “two days of shouting.”
The OPR report appears to indicate that the statement that Rosenbaum “hadn't even read the memos” is based on Rosenbaum's lack of familiarity with a parenthetical reference in one of those memos that did not even make the point about which he was inquiring to the trial team.
According to the OPR report, on April 30, 2009, Rosenbaum and King met with Coates and Popper to discuss the concerns of the former with the case. OPR specifically states that they “raised issues concerning... whether defendants King Samir Shabazz and Jerry Jackson had acted as agents for defendants New Black Panther Party and Chairman Malik Zulu Shabazz” (the trial team was seeking injunctive relief against all four defendants).
The next day, King decided to review the website of the New Black Panther Party:
King said that she immediately saw that the NBPP had posted a statement on its website suspending its Philadelphia chapter as of January 7, 2009. In addition, the NBPP had posted an official statement, dated November 4, 2008, disavowing the “actions of people purporting to be member” at the Philadelphia polling place and stating that their actions “do not represent the official views of the New Black Panther Party and are not connected nor in keeping with [its] official position as a party. The publicly expressed sentiments and actions... do not speak for either the party's leadership or its membership.” [...] King stated that she was “incensed” and “floored” upon seeing this information, because neither the suspension nor the disavowal had been mentioned by Coates or Popper during the meeting the night before, notwithstanding the fact that the information was directly relevant to the issues of liability and relief.
King showed the information to Rosenbaum, who was similarly “concerned that this information, which they considered relevant and potentially exculpatory with regard to injunctive relief, had not been mentioned during the course of the lengthy meeting the day before, during which much of the focus was on the government's ability to obtain injunctive relief against the national defendants.”
King and Rosenbaum subsequently called a meeting with Coates and Popper, asked them “if they knew what the NBPP had said about the Philadelphia incident.” The trial team attorneys acknowledged that NBPP had disavowed the incident and suspended the Philadelphia chapter, and admitted that the information was relevant though not determinative. Rosenbaum then accused Coates and Popper of intentionally withholding this information from King and himself. Popper and Coates “strenuously objected,” with Coates using profanity.
The OPR report then describes the exchange that led Adams to claim that Rosenbaum “hadn't even read the memos which detailed all of the facts and the law before he started arguing against the case”:
Both Popper and Coates insisted that the y had not deliberately withheld the information, but that it simply hadn't come up in the meeting the day before. Instead, Coates explained, they had responded to direct questions about the strength of the evidence and the theory for obtaining injunctive relief. [...] Coates said he also told Rosenbaum and King that, if they had read the draft papers closely, they would have seen that the proposed drafts did raise the disclaimer and renunciation issues.
After the meeting concluded, Popper went back through the trial team documents that had been forwarded to Rosenbaum for review. According to the OPR report, he found the following statement, which he claimed (in OPR's words) was evidence that Rosenbaum “was wrong when he said at the May 1 meeting that the NBPP team had failed to bring the disclaimer to his attention, and had withheld this information in order to deceive the front office”:
After accounts and video of this behavior were broadcast nationwide on election day, the New Black Panther Party for Self-Defense and Chairman Shabazz first endorsed and defended the behavior (though he later appeared to disclaim it). [emphasis added by OPR]
So the trial team's evidence that they had brought to the attention of their superiors the facts that the NBPP organization had disclaimed the actions of Shabazz and Jackson and suspended their chapter is a single seven word parenthetical fragment. The fragment deals only with the statements of Shabazz, not the organizational statement. It includes no specifics on what Shabazz said, and obviously nothing from the NBPP statement. And it doesn't mention the suspension at all.
You would think that Coates would have been embarrassed that this was the only evidence they could muster that they hadn't deliberately withheld information from their superiors. Instead, he forwarded that sentence on to Rosenbaum and requested an apology, while stating that the issue was not discussed during the April 30 meeting “because neither of you asked about it.”
I guess that the only surprise is that he didn't attempt to bring Rosenbaum up on charges.