NYP op-ed disappears Bush's politicization of the Justice Department

In a New York Post op-ed, former Bush Justice Department official Kris Kobach accused the Obama Justice Department of pursuing a “weak” lawsuit against Arizona's controversial immigration law -- which Kobach helped draft -- for “purely political reasons,” in contrast to “past administrations.” In fact, the Bush Justice Department was found to be highly politicized, and legal experts agree that the Arizona law is “unconstitutional.”

New York Post: “Behind US v. Arizona: pure politics” -- unlike “past administrations”

Bush administration adviser Kobach claimed that Obama DOJ's decision to sue AZ over immigration law is “pure politics” and accused Obama administration of politicizing the Justice Department. In a July 12 editorial, Kobach -- former counsel and chief adviser to Bush Attorney General John Ashcroft and one of the drafters of the controversial Arizona immigration law -- accused the Obama administration of politicizing the Department of Justice, using as examples its decision to challenge the constitutionality of Arizona's immigration law and its decision to drop voter intimidation charges against some members of the New Black Panther Party. From the New York Post:

The Obama administration's lawsuit against the state of Arizona offers a revealing window into the Holder Justice Department. And the picture isn't pretty.

Consider what we learned when Secretary of State Hillary Clinton first let the cat out of the bag and told us about it during an interview in Ecuador. Clinton showed who was sitting in the driver's seat when it came to the Justice Department's decision: “President Obama has spoken out against the law because he thinks that the federal government should be determining immigration policy. And the Justice Department, under his direction, will be bringing a lawsuit against the act.”

The key words here are “under his direction.” In other words, the White House is calling the shots. The same political calculations that drove Obama to criticize the Arizona law in April also drove the filing of the suit. While that is fine for policy decisions in other executive departments, the litigation decisions of the Justice Department are different. Past administrations -- both Republican and Democratic -- have taken care to insulate these decisions from political forces.

The reasons for doing so are obvious.

The decision to file civil charges or to file a civil lawsuit should be based purely on the strength of the legal case against the defendant, not on politics. And when it comes to the Arizona law, the federal government's case is a weak one.


On top of that, the department's lawsuit was simply unnecessary. The ACLU and other organizations supporting open borders have already filed five suits, so the issue is being litigated.

This leads to the unavoidable suspicion that the White House ordered the Justice Department to file the suit for purely political reasons.


The lawsuit also shows that the Obama administration is devoting substantial department resources to stopping Arizona. The many lengthy filings suggest that many department attorneys are involved. Meanwhile, the flood of illegal-immigration crimes in the border states swells. When I served in the Ashcroft Justice Department in 2001-03, we were doing everything we could to reallocate department personnel and resources to fight those crimes and assist the border-state US Attorneys' office.

In contrast, the Obama administration is scaling back the prosecution of immigration cases and instead using those taxpayer-funded resources to stop a state that is trying to help. As long as politics are allowed to trump the law, such absurdities will only continue.

But Bush DOJ was ripe with politicization

OIG and OPR found Bush DOJ officials' reasons for firing U.S. attorneys were “an unprecedented removal of a group of high-level Department officials.” The Offices of the Inspector General (OIG) and Professional Responsibility (OPR) conducted an investigation into the Bush administration's firing of nine U.S. Attorneys in 2006. The report by the OIG and OPR, which explored the Bush administration's “reasons for the removals of the U.S. Attorneys and whether they were removed for partisan political purposes,” found that the firings were “an unprecedented removal of a group of high-level Department officials.” The report concluded:

In sum, we believe that the process used to remove the nine U.S. Attorneys in 2006 was fundamentally flawed. While Presidential appointees can be removed for any reason or for no reason, as long as it is not an illegal or improper reason, Department officials publicly justified the removals as the result of an evaluation that sought to replace underperforming U.S. Attorneys. In fact, we determined that the process implemented largely by Kyle Sampson, Chief of Staff to the Attorney General, was unsystematic and arbitrary, with little oversight by the Attorney General, the Deputy Attorney General, or any other senior Department official. In choosing which U.S. Attorneys to remove, Sampson did not adequately consult with the Department officials most knowledgeable about their performance, or even examine formal evaluations of each U.S. Attorney's Office, despite his representations to the contrary.


The Department's removal of the U.S. Attorneys and the controversy it created severely damaged the credibility of the Department and raised doubts about the integrity of Department prosecutive decisions. We believe that this investigation, and final resolution of the issues raised in this report, can help restore confidence in the Department by fully describing the serious failures in the process used to remove the U.S. Attorneys and by providing lessons for the Department in how to avoid such failures in the future.

The report also expressed concerns that the offices “were not able to fully investigate” the “most serious allegation” that the removal of David Iglesias, the U.S. Attorney for New Mexico, occurred in order “to influence voter fraud and public corruption prosecutions” due to the unwillingness of many Bush administration officials to testify, including “Karl Rove, Harriet Miers, and William Kelley.”

A 2008 DOJ investigation concluded Bush deputy assistant attorney general “considered political and ideological affiliations in hiring career attorneys” in the DOJ, in violation of federal law. In July 2008, the Office of the Inspector General and the Office of Professional Responsibility concluded its investigation into whether politics and ideology were considered in “hiring, transferring, and assigning cases to career attorneys in the Civil Rights Division of the Department of Justice.” The report concluded that Civil Rights Division senior official Deputy Assistant Attorney General Bradley S. Schlozman did indeed violate federal law by “considering political and ideological affiliations” in personnel decisions affecting career attorneys, and that management “failed to exercise sufficient oversight to ensure that Schlozman did not engage in inappropriate hiring and personnel practices.” From the report:

The evidence in our investigation showed that Schlozman, first as a Deputy Assistant Attorney General and subsequently as Principal Deputy Assistant Attorney General and Acting Assistant Attorney General, considered political and ideological affiliations in hiring career attorneys and in other personnel actions affecting career attorneys in the Civil Rights Division. In doing so, he violated federal law -- the Civil Service Reform Act -- and Department policy that prohibit discrimination in federal employment based on political and ideological affiliations, and committed misconduct. The evidence also showed that Division managers failed to exercise sufficient oversight to ensure that Schlozman did not engage in inappropriate hiring and personnel practices. Moreover, Schlozman made false statements about whether he considered political and ideological affiliations when he gave sworn testimony to the Senate Judiciary Committee and in his written responses to supplemental questions from the Committee.

Bush political appointee Schlozman indicted and prosecuted 4 former ACORN workers right before the 2006 midterm elections, despite “longstanding Justice Department policy. CNN reported that Bush's interim U.S. Attorney Bradley Schlozman sought voter registration fraud indictments against members of ACORN right before the 2006 midterm senatorial elections, despite the Justice Department regulations that:

urge federal prosecutors to be “extremely careful” about conducting voter fraud probes in the weeks before an election, warning that such probes could become campaign issues. Schlozman insisted his actions were proper and that no policy required him to delay the indictments.


“It is deeply troubling that after weeks of preparation Mr. Schlozman appears to have misled the committee and the public about his decision to file an election eve lawsuit in direct conflict with longstanding Justice Department policy,” Leahy said.

Legal experts -- and even Fox's Napolitano - dispute Kobach's claim that AZ lawsuit is “weak”

Fox News' Napolitano: Arizona law “is unconstitutional” because AZ “can't write a law that says the federal law means something different in Arizona than it does in the other 49 states.” Contrary to Kobach's claim that the Justice Department's lawsuit against Arizona's controversial immigration enforcement law is “weak,” Fox legal analyst Judge Andrew Napolitano railed against the Arizona law, calling it “un-American.” Napolitano called the law “unconstitutional” and noted that the Supreme Court has ruled that immigration laws are “strictly a federal issue.” From the July 7 edition of Fox Business Network's Varney & Co.:

NAPOLITANO: Because the Supreme Court has held that when the states formed the federal government they truly gave away their power to have relations with foreign countries and with foreigners including immigration. Directly on point, a Pennsylvania case in which the state of Pennsylvania sought to find Nazi sympathizers which is pre-World War II amongst its aliens so it ordered all aliens to register with the state of Pennsylvania. The Supreme Court said you have nothing to do with aliens. It is strictly a federal issue.


[Arizona] can't do that. It can't write a law that says the federal law means something different in Arizona than it does in the other 49 states.


If I fall asleep in the sun at a resort in Scottsdale and I haven't shaved in three days and I go jogging, they may stop me. And I will have no proof of my papers on me and they will arrest me because I can't prove who I am. That is un-American. That is unconstitutional. That's what will happen.

Constitutional law expert Chemerinsky: Arizona law is unconstitutional. On June 6, Yahoo News reported that constitutional law expert Erwin Chemerinsky said that “federal law clearly pre-empts the Arizona measure ... rendering the state law unconstitutional.” From the article:

There's less debate over whether the Arizona law would hold up to a supremacy challenge. Erwin Chemerinsky, an expert in constitutional law and the dean of the law school at the University of California, Irvine, told Yahoo! News federal law clearly pre-empts the Arizona measure in his view, rendering the state law unconstitutional.

Former Solicitor General Dellinger: DOJ “had no choice but to bring this suit.” The New Republic reported that former Clinton administration Solicitor General Walter Dellinger said the DOJ “had no choice but to bring this suit”:

Giving the national government control over immigration into the United States was a major decision made by the framers of the Constitution. That is neither a liberal nor a conservative position. Allowing states to set their own immigration policy could lead in the future to more rather than less unlawful immigration. Given the freedom of movement within the United States and the implications of immigration for domestic national issues and foreign policy, it is unthinkable to leave immigration policy to thirteen or fifty different states. Calibrating the right combination of enforcement tools to utilize is at the core of the national power over immigration, and state laws are preempted whether they purport to add to or subtract from the system put in place by Congress. Whether current federal enforcement is adequate or not, whether Arizona's law is wise or not, whether suing is good politics or not are all beside the point: it is essential that the federal government's control over immigration into the United States be protected from state interference. In my view the Justice Department had no choice but to bring this suit.

LA Times: "[M]ost legal experts predict" that Arizona's law “is likely to be struck down.” In a July 9 article titled, “Arizona immigration law unlikely to survive federal lawsuit,” and subtitled, “Legal experts cite the longstanding principle that the federal government has exclusive control over immigration,” the Los Angeles Times reported that “most legal experts predict” that the Arizona law “is likely to be struck down”:

Arizona's law giving local police immigration enforcement powers is likely to be struck down, most legal experts predict, now that the Obama administration has gone to court asserting that it conflicts with federal law.


It's one thing for MALDEF [Mexican American Legal Defense and Educational Fund] or the ACLU to say this [Arizona law] interferes with federal policy. It is quite a different thing when the federal government goes to court and says it," said Jack Chin, a University of Arizona law professor. “The clear rule has been that states do not have the power to regulate immigration.”

This directly contradicts Kobach's claim that the federal lawsuit is “unnecessary” because “the ACLU and other organizations ... have already filed suits.”

Kobach cites New Black Panthers case dismissal as proof of “inescapable” “conclusion” of “pure politics” DOJ

Kobach misleadingly claimed that the Justice Department “dropped a slam-dunk case” against the New Black Panther Party because “political appointees of the Holder Justice Department came in and ordered the career department attorneys to drop the case.” From the Post:

When one considers the Arizona lawsuit in contrast to last year's Justice Department decision to drop the voter-intimidation case against the New Black Panther Party, the conclusion becomes inescapable. In the Black Panther case, the defendants had failed to answer the charges against them, and all the Department had to do was ask the judge for a default judgment. But the political appointees of the Holder Justice Department came in and ordered the career department attorneys to drop the case.

So the department dropped a slam-dunk case and yet files a suit that is half-court shot. Neither decision makes sense if the law is guiding the department's litigation decisions. But both decisions make perfect sense if political calculations are foremost.

But “political appointees” had 30-year careers in the Civil Rights Division of the Justice Department. As Media Matters for America has documented, Assistant Attorney General Thomas Perez testified that while at the time Loretta King and Steve 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.”

Civil Rights Division decided to drop the case against three of the defendants for insufficient evidence. Perez also testified that after the Civil Rights Division conducted an inquiry into the New Black Panther Party 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 the legal news website 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.

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 Main Justice article 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.”