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“REFILE THE VOTER INTIMIDATION CASE AGAINST THE NEW BLACK PANTHER PARTY” mentioning the U.S. Dept. of Justice was published in the House of Representatives section on pages H9250-H9252 on July 31, 2009.
The publication is reproduced in full below:
REFILE THE VOTER INTIMIDATION CASE AGAINST THE NEW BLACK PANTHER PARTY
The SPEAKER pro tempore. Under a previous order of the House, the gentleman from Virginia (Mr. Wolf) is recognized for 5 minutes.
Mr. WOLF. Mr. Speaker, earlier today, I sent a letter to Attorney General Eric Holder, which I submit for the Record, imploring him to refile the voter intimidation case against the New Black Panther Party that was inexplicably dismissed in May.
This case was brought in January by career attorneys in the department's Civil Rights Division against the party and several of its members for deploying uniformed men to a polling station in Philadelphia on election day last November to harass and intimidate voters--one of whom brandished a nightstick to the voters.
The public can view video of the incident as well as other examples of their intimidation in a January 2009 National Geographic Channel documentary that is posted on the Web at www.electionjournal.org.
One of the witnesses of the election day incident, Bartle Bull--a veteran civil rights activist who served as Bobby Kennedy's New York campaign manager in 1968--has publicly called this ``the most blatant form of voter intimidation'' he has ever seen. He also reminded us that Martin Luther King did not die to have people in jackboots with billy clubs block doors of polling places. Neither did Robert Kennedy. It's an absolute disgrace.
In 1981, I was the only member of the Virginia delegation in the House to vote for the Voting Rights Act, and I was harshly criticized by the editorial page of the Richmond Times Dispatch. When I supported the act's reauthorization in 2006, I was again criticized by editorial pages. My commitment to voting rights is unquestioned.
Given my consistent support for voting rights, I was deeply troubled by a report in yesterday's Washington Times, which I also submit for the Record, indicating that improper political influence by Associate Attorney General Thomas Perrelli led to the dismissal of this case--
over the objections of justice career attorneys on the trial team.
I am troubled, but unfortunately not surprised, to learn of the existence of this guidance from the chief of the department's Appellate Division, which recommended that the department proceed with the case and obtain default judgment. Despite a congressionally directed request, the guidance was not previously shared with Members of Congress.
According to a summary of the Appellate Division guidance reported in The Washington Times, ``Appellate Chief Diana K. Flynn said in a May 13 memo obtained by The Times that the appropriate action was to pursue the default judgment unless the department had evidence the court ruling was based on unethical conduct by the government.''
She goes on to say many other things, which I'll submit for the Record, but she ends by saying that the complaint appeared to be sufficient to support the injunctions sought by the career employee, stating, ``The government's predominant interest is preventing intimidation, threats and coercion against voters.''
Just last week, Eric Holder declared that the department's Civil Rights Division is ``back and open for business.'' I question Eric Holder's commitment to voting rights, and I question Eric Holder's judgment. Yet where are the other Members of this Congress--Republican or Democrat--who want to even look at this issue?
Given that both the department's trial team and the Appellate Division argued strongly in favor of proceeding with the case, I can only conclude that the decision to overrule the career attorneys, Associate Attorney General Thomas Perrelli or other administration officials was politically motivated.
House of Representatives,
Washington, DC, July 31, 2009.Hon. Eric H. Holder, Jr.,Attorney General, Department of Justice,Washington, DC.
Dear Attorney General Holder: In light of the troubling reports of political influence in the enclosed article from yesterday's Washington Times, as well as the many unanswered questions to members of Congress, I implore you to re-file the voter intimidation case against the New Black Panther Party and other defendants so that impartial judges--not political benefactors--may rule on the merits of this case. Given your declaration on July 22 that the department's Civil Rights Division is ``back and open for business,'' I would urge you to demonstrate your commitment to enforcing the law above political interests by re-filing.
My commitment to voting rights is unquestioned. In 1981, I was the only member--Republican or Democrat--of the Virginia delegation in the House to vote for the Voting Rights Act and was harshly criticized by the editorial page of the Richmond Times Dispatch, and when I supported the act's reauthorization in 2006, I was again criticized by editorial pages.
Given my consistent support for voting rights throughout my public service, I hope you can understand why I am particularly troubled by the dismissal of this case. The video evidence of the defendants' behavior on Election Day, as well as a January National Geographic Channel documentary,
``Inside: The New Black Panther Party,'' should leave no question of the defendants' desire to intimidate or incite violence.
The ramifications of the dismissal of this case were serious and immediate. Defendant Jerry Jackson received a new poll watcher certificate, a copy of which I have enclosed, on May 19, 2009, immediately after the case was dismissed. Mr. Jackson faced no consequences for his blatant intimidation and promptly involved himself in the next election. Is that justice served?
As you will read in the enclosed memorandum of opinion from the Congressional Research Service's American Law Division, there is no legal impediment that would prevent you from re-filing this case. Unlike a criminal case, a civil case seeking an injunction against the other defendants could be brought again at any time. According to the memo provided to me, ``It appears likely that the Double Jeopardy Clause would not bar a subsequent civil action against the [New Black Panther] Party or most of its members,'' and ``second, because the United States voluntarily dismissed its suit against the Party and two of the three individual members before those defendents had filed an answer or motion to dismiss the suit, the previous action had not moved sufficiently beyond preliminary steps so as to implicate the Double Jeopardy Clause.''
I was surprised to learn from The Washington Times report of the existence of the enclosed correspondence from the chief of the department's Appellate Division recommending that the department proceed with the case and the default judgment. These opinions were never disclosed to me or other members of Congress by the department in its previous responses to questions regarding the dismissal of the case. According to the report:
``Appellate Chief Diana K. Flynn said in a May 13 memo obtained by The Times that the appropriate action was to pursue the default judgment unless the department had evidence the court ruling was based on unethical conduct by the government.
``She said the complaint was aimed at preventing the
`paramilitary style intimidation of voters at polling places elsewhere' and Justice could make a `reasonable argument in favor of default relief against all defendants and probably should.' She noted that the complaint's purpose was to
`prevent the paramilitary style intimidation of voters while leaving open `ample opportunity for political expression.'
``An accompanying memo by Appellate Section lawyer Marie K. McElderry said the charges not only included bringing the weapon to the polling place, but creating an intimidating atmosphere by the uniforms, the military-type stance and the threatening language used. She said the complaint appeared to be `sufficient to support the injunctions' sought by the career lawyers.
``The government's predominant interest is preventing intimidation, threats and coercion against voters or persons urging or aiding persons to vote or attempt to vote, she said.''
Given that both the department's trial team and the Appellate Division argued strongly in favor of proceeding with the case, I can only conclude that the decision to overrule the career attorneys Associate Attorney General Thomas Perrelli, or other administration officials, was politically motivated. This report further confirms my suspicions that the Department of Justice under your watch is becoming increasingly political.
It is imperative that we protect all Americans right to vote. This is a sacrosanct and inalienable right of any democracy. The career attorneys and Appellate Division within the department sought to demonstrate the federal government's commitment to protecting this right by vigorously prosecuting any individual or group that seeks to undermine this right. The only legitimate course of action is to allow the trial team to bring the case again and allow the our nation's justice system to work as it was intended--impartially and without bias.
Sincerely,
Frank R. Wolf,Member of Congress.
____
Congressional Research Service,
Washington, DC, July 30, 2009.
Memorandum
To: Hon. Frank Wolf, Attention: Thomas Culligan.From: Anna Henning, Legislative Attorney.Subject: Application of the U.S. Constitution's Double
Jeopardy Clause to Civil Suits.
This memorandum responds to your request for an analysis of the application of the Double Jeopardy Clause to successive civil suits in federal courts. In particular, it examines the clause's potential application in the context of a civil suit brought against the New Black Panther Party for Self-Defense or its members, against whom the United States had previously brought an action for injunctive relief. In sum, it appears likely that the Double Jeopardy Clause would not bar a subsequent civil action against the Party or most of its members.
Double Jeopardy Clause: Application to Civil Penalties
The Double Jeopardy Clause provides that no ``person
[shall] be subject for the same offence to be twice put in jeopardy of life or limb.'' It has been interpreted as prohibiting only successive punishments or prosecutions that are criminal in nature. However, some penalties designated as
``civil'' by statute have been found to be sufficiently
``criminal'' to implicate double jeopardy concerns. In other words, whether a particular punishment is criminal or civil may require an interpretation of congressional intent and the extent to which the penalty can be characterized as penal in nature.
Factors that courts consider when determining whether a penalty is criminal in nature include: (1) ``whether the sanction involves an affirmative disability or restraint'';
(2) ``whether it has historically been regarded as a punishment''; (3) ``whether it comes into play only on a finding of scienter''; (4) ``whether its operation will promote the traditional aims of punishment--retribution and deterrence''; (5) ``whether the behavior to which it applies is already a crime''; (6) ``whether an alternative purpose to which it may rationally be connected is assignable for it''; and (7) ``whether it appears excessive in relation to the alternative purpose assigned.'' However, Congress' designation of a penalty as ``civil'' creates a presumption which must be overcome by clear evidence to the contrary. Thus, civil penalties are not typically found to be criminal in nature. For example, in Hudson v. United States, the U.S. Supreme Court held that monetary assessments and an occupational debarment order did not implicate the Double Jeopardy Clause, because neither type of penalty constituted a ``criminal punishment.''
Regardless of the nature of the penalty sought, the Double Jeopardy Clause does not bar a subsequent action if no more than preliminary proceedings commenced in the prior action. Typically, an action must have reached at least the stage where jury members have been sworn (in a jury trial) or where the first evidence has been presented to the judge (in a bench trial).
Application to a Subsequent Suit Against the New Black Panther Party for Self-Defense or its Members
In January 2009, the U.S. Department of Justice filed a civil suit in a U.S. district court against the New Black Panther Party for Self-Defense and three of its members. The suit was brought by the Department's Civil Rights Division pursuant to the Voting Rights Act of 1965, 42 U.S.C. Sec. 1973 et. seq., which prohibits intimidation of ``any person for voting or attempting to vote'' and authorizes the Attorney General to bring civil actions to obtain declaratory judgment or injunctive relief to prohibit such actions. The Department alleged that members of the Party had intimidated voters and those aiding them during the November 2008 general election and sought an injunction banning the Party from deploying or displaying weapons near entrances to polling places in future elections. However, after the Department obtained an injunction barring one member's future use of weapons near polling places, it voluntarily dismissed its suit against the Party and the other members.
For two reasons, it appears likely that the Double Jeopardy Clause would not prohibit the Justice Department from bringing a similar suit on the same or similar grounds against at least the Party and the individual members for whom the previous suit was dismissed. First, it is likely that a court would find that the injunctive relief sought in the previous action constitutes a civil, rather than criminal, punishment.
Although Congress' designation of the injunctive relief actions as a civil penalty is not ultimately dispositive, it is unlikely, based on the seven factors noted previously, that injunctive relief sought by the Justice Department would be viewed as sufficiently criminal in nature so as to overcome the presumption in favor of accepting Congress' characterization. Most importantly, the injunctions seem to have been primarily designed to prohibit the use of guns at polling places for the purpose of implementing the purposes of the Voting Rights Act, rather than to impose punishment on the defendants.
Second, because the United States voluntarily dismissed its suits against the Party and two of the three individual members before those defendants had filed an answer or motion to dismiss the suit, the previous action had not moved sufficiently beyond preliminary steps so as to implicate the Double Jeopardy Clause. With respect to the one member against whom an injunction was obtained, this second factor would not apply. However, due to the likely characterization of the injunction as a civil penalty, it remains unlikely that a subsequent action would be barred.
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It is imperative that we protect all Americans' right to vote. This is sacrosanct on an inalienable right of any democracy. The career attorneys and the appellate division within the Department sought to demonstrate the Federal Government's commitment to protecting this right by vigorously prosecuting any individual or group who seeks to undermine this right. The only legitimate course of action for the trial team is to bring the case again and allow our Nation's justice system to work as it was intended.
And to see it again, look for it in your own eyes. Look at www.electionjournal.org.
____________________
