[Pages H9250-H9252]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
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.
[[Page H9251]]
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.
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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.
{time} 1445
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.
____________________