Back in March, the DOJ’s Office of Professional Responsibility issued this 79-page report (link via TPM) on the New Black Panthers controversy. It paints a picture of DOJ as deeply divided ideologically over the pursuit of an injunction in the controversy, but also sees all the main players as acting in good faith. It finds no evidence of racial motivation in the decision of DOJ to pursue lesser charges and drop some charges following the default judgment against the defendants in the case. It’s findings are largely in line with the must-read Washington Post report from last October on the controversy, and the report is much more temperate and useful than the 220-page nasty, partisan dueling opinions of the U.S. Commission on Civil Rights.
My bottom line on the controversy, which I’ll be writing more about in my book The Voting Wars:
(1) the original NBPP controversy really was small potatoes, as Abby Thernstrom and Jonathan Adler concluded. This was a tiny incident in a single polling place about which there was not proof of a single intimidated voter.
(2) Jonathan thought the decision to narrow the injunction after obtaining the default judgment did not make sense, but the OPR gives plausible reasons for why DOJ leadership did so—reasons about the scope of injunctions and First amendment rights which seem very strong to me as a teacher of Remedies.
(3) Whether we should call DOJ’s subsequent actions a “cover-up” as Jonathan says or not, DOJ certainly did a very poor job explaining its actions. And it is only from the OPR report that one can get a clear sense as to the bona fide dispute among those at DOJ over how to handle the case.
(4) The decision of how to handle the controversy does provide a window into the shift between the Bush and Obama administrations over how to handle claims of voting rights violations against non-minority voters. The DOJ has limited resources and needs to prioritize. Cases like NBPP and the Ike Brown case in Mississippi (as well as NVRA cases requiring cleaning up of voter rolls) were of greater priority to the Bush Administration than to the Obama administration.
(5) Some on the right hoped to use the controversy over NBPP to paint the Obama DOJ as politicized and to make a scandal out of a legitimate difference in opinion over DOJ prosecutorial priorities and prosecutorial discretion. I was amazed to learn that FOX News had 95 segments on the NBPP issue in little over a two week period. J. Christian Adams, Big Government, Hans von Spakovsky, and Pajamas Media–along with the Republican-leaning commissioners on the Civil Rights Commission (aside from Thernstrom)—sought to make as much political hay out of the incident as they could.
But in the end, there’s no there there.
UPDATE: Jonathan Adler comments.