[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
MISMANAGEMENT AT THE CIVIL RIGHTS DIVISION OF THE DEPARTMENT OF JUSTICE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
APRIL 16, 2013
__________
Serial No. 113-10
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DELBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
KEITH ROTHFUS, Pennsylvania
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
C O N T E N T S
----------
APRIL 16, 2013
Page
OPENING STATEMENTS
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 3
The Honorable Trent Franks, Jr., a Representative in Congress
from the State of Arizona, and Member, Committee on the
Judiciary...................................................... 14
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Member, Committee on the Judiciary.. 15
WITNESSES
Hans A. von Spakovsky, Senior Legal Fellow and Manager, Civil
Justice Reform, The Heritage Foundation
Oral Testimony................................................. 19
Prepared Statement............................................. 22
Horatio G. Mihet, Senior Litigation Counsel, Liberty Counsel
Oral Testimony................................................. 32
Prepared Statement............................................. 35
Samuel R. Bagenstos, Professor of Law, The University of Michigan
Law School
Oral Testimony................................................. 99
Prepared Statement............................................. 102
J. Christian Adams, Founder, Election Law Center
Oral Testimony................................................. 109
Prepared Statement............................................. 111
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 4
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 12
Material submitted by the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 131
Material submitted by the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 200
Additional Material submitted by the Honorable John Conyers, Jr.,
a Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 244
Material submitted by the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary..................................... 259
APPENDIX
Material Submitted for the Hearing Record
Response to Questions for the Record from Samuel R. Bagenstos,
Professor of Law, The University of Michigan Law School........ 274
MISMANAGEMENT AT THE CIVIL RIGHTS DIVISION OF THE DEPARTMENT OF JUSTICE
----------
TUESDAY, APRIL 16, 2013
House of Representatives
Committee on the Judiciary
Washington, DC.
The Committee met, pursuant to call, at 10:08 a.m., in room
2141, Rayburn Office Building, the Honorable Bob Goodlatte
(Chairman of the Committee) presiding.
Present: Representatives Goodlatte, Coble, Chabot, Issa,
King, Franks, Gohmert, Jordan, Poe, Marino, Gowdy, Labrador,
Farenthold, Conyers, Nadler, Watt, Lofgren, Jackson Lee, Chu,
Gutierrez, Bass, Richmond, DelBene, and Garcia.
Staff present: (Majority) Shelley Husband, Chief of Staff &
General Counsel; Branden Ritchie, Deputy Chief of Staff and
Chief Counsel; Allison Halataei, Parliamentarian & General
Counsel; John Coleman, Counsel; Kelsey Deterding, Clerk;
(Minority) Perry Apelbaum, Staff Director & Chief Counsel;
Danielle Brown, Parliamentarian; and Aaron Hiller, Counsel.
Mr. Goodlatte. Good morning. The Judiciary Committee will
come to order, and without objection, the Chair is authorized
to declare recesses of the Committee at any time.
We welcome everyone to today's hearing on ``Mismanagement
of the Civil Rights Division of the Department of Justice.'' I
will recognize myself for an opening statement, and then the
Ranking Member.
Today the Judiciary Committee examines a report released on
March 12 by the Inspector General regarding the politicization,
polarization, and mismanagement occurring at the Civil Rights
Division of the Department of Justice, specifically, the
Division's Voting Section.
The findings of this report include evidence of
inappropriate conduct by political appointees, harassment of
employees because of their political views, selective
enforcement of voting laws, and misleading testimony by the
Division head, Assistant Attorney General Thomas Perez. These
findings point to a deep ideological polarization giving rise
to internal disputes and mistrust, which has harmed the
efficacy of this Division.
The Inspector General's report in part concludes, ``The
cycles of actions and reactions that resulted from this
mistrust were in many instances incompatible with the proper
functioning of a component of the Department.''
The Division is entrusted with the authority to protect the
civil and constitutional rights of all Americans and to enforce
laws prohibiting discrimination on the basis of race, color,
sex, disability, religion, familial status, and national
origin. The report, however, describes a division tainted by
partisanship in unfairly favoring one group over another, both
in its enforcement of the laws and in its workplace culture.
As the Inspector General's report states, ``The high
partisan stakes associated with some of the statutes that the
Voting Section enforces have contributed to polarization and
mistrust within the Section.'' The report, however, makes clear
that other components within the Department with enforcement
authority over equally controversial subject matter do not
appear to suffer from the same degree of polarization and
internecine conflict. ``The difference, according to the
report, is a function of leadership and culture.''
The report covers the time period between 2001 and the end
of 2012. It is clear, however, that little has changed since
then at the Division. For example, just a few months ago we
found this Facebook post. It may be a little hard to read over
there, but this is a Facebook by Dan Freeman, a lawyer in the
Voting Section of the Department of Justice, who proudly
announced that he ``started the crowd booing when Paul Ryan
came out at the presidential inauguration in January.'' His
actions suggest that a climate of open and unabashed
partisanship still prevails at the Division. To our knowledge,
Mr. Freeman has not been disciplined in any way.
Other examples of this kind of unacceptable conduct include
blatantly partisan political commentary found in emails sent by
the Voting Section employees on Department computers, Section
employees posting comments on widely-read Websites concerning
Voting Section work and personnel, and in one instance, an
employee writing a comment to an article concerning an internal
Department investigation of potential misconduct by a Section
manager that read, ``Geez, reading this just makes me want to
go out and choke somebody. At this point, I'd seriously
consider going in tomorrow and hanging a noose in someone's
office to get myself fired, but they'd probably applaud the
gesture and give me a promotion for doing it.''
One overarching question leaps from this report: with this
sort of palpable dysfunction at the Division, what, if
anything, has Assistant Attorney General Tom Perez done to
remedy it? With this nomination by President Obama to be the
next Secretary of Labor, the American people deserve to know
whether Mr. Perez is capable of properly managing a government
agency.
The perception alone of partisan or racial bias undermines
the core goals of this Division. I agree with the Inspector
General's statement that, ``Division leadership seems to
promote impartiality, continuity, and professionalism as
critical values in the Voting Section,'' and that, ``Leadership
and career staff alike must embrace a culture where ideological
diversity is viewed as beneficial.''
These and other incidents we will hear about today are a
disservice to the American people who rely on the Civil Rights
Division to protect them by enforcing our Nation's anti-
discrimination laws in a professional and unbiased manner. The
IG report we will discuss today is simply another example of
the questionable management practices of Thomas Perez, who has
now been nominated by President Obama to be the next Secretary
of Labor.
Just 2 days ago, Chairman Issa, Ranking Member Grassley,
and I released a joint report on Thomas Perez's involvement in
a secret deal with the City of St. Paul that ultimately cost
the taxpayers as much as $200 million. We intend to continue
our investigation into this troubling matter.
I look forward to hearing from all of our witnesses today.
And it is now my pleasure to recognize the Ranking Member
of the Committee, the gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Chairman. Our hearts go out to the
people of the City of Boston and to the families and loved ones
of all those who were injured in yesterday's attacks. This
tragedy is a sobering reminder of the need to set aside
partisan politics and to work together in the common cause for
the good of the Nation.
I find it necessary to point out that the title of this
hearing, ``Mismanagement at the Civil Rights Division of the
Department of Justice,'' is unnecessarily provocative and
demeans the seriousness of the work we do on the Committee. Our
job is to uncover the facts and then draw conclusions, not the
other way around. In this case, the misleading title also is
designed to obscure the facts rather than to make them clear to
the public. It is intended to harm the reputation of a champion
for civil rights and a decent public service.
Two days from now, of course, we know that the Assistant
Attorney General, Tom Perez, will sit before the Senate as the
President's nominee to lead the Department of Labor. His tenure
as the head of the Civil Rights Division of the Department of
Justice has been successful by any measure. To suggest
otherwise to me is both inaccurate and unfair.
Let us look at the record. The recent report of the Office
of the Inspector General entitled, ``A Review of the Operations
of the Voting Section of the Civil Rights Division'' suggests
mismanagement, but the mismanagement did not occur under
today's leadership. Under the Bush administration, the Civil
Rights Division was an agency in crisis. Political appointees
marginalized the voices of career attorneys. Those attorneys
abandoned the Voting Section at an alarming rate.
The perception in the civil rights community and often
within the Division was that the political preferences of the
Administration had taken precedence over the impartial
enforcement of civil rights law. That suspicion was confirmed
in 2008 in a series of three reports issued jointly by the
Office of the Inspector General and the Office of Professional
Responsibility. And those reports concluded that the political
leadership of the Division had violated Federal law by
politicizing the hiring process and other personnel decisions.
The recent Inspector General's report paints a similar
picture of that time, from 2003 to 2007. The report notes
``polarization and suspicion in the Voting Section became
particularly acute as Bush appointees illegally recruited new
attorneys into the Voting Section and other parts of the
Division based on their conservative affiliations.'' That is a
quote. And I will be putting parts of this into the record.
[The information referred to follows:]
----------
Mr. Conyers. The report also finds that the Division
leadership acted at times inappropriately or unfairly with
career attorneys. Changes to longstanding Division policy that
appeared to be designed to shield conservative attorneys from
criticism only further undermined morale. That is true
mismanagement, marginalizing the career experts, politicizing
the decision making process, and ultimately breaking the law.
If the purpose of this hearing was to look back at the
conditions of the Division between 2001 and 2008, then today's
title would be more appropriate. But the timing and title of
this hearing are no coincidence. They are intended to disparage
the reputation of the Associate Attorney General as he stands
for confirmation.
Fortunately, his record can withstand this partisan attack.
Although he inherited a division in disarray, Mr. Perez has
righted the ship. In fact, to the extent the Inspector
General's report mentions Perez only once, and it is to clear
him of wrongdoing and credits him for his management processes.
Under his leadership, the Division obtained $660 million in
lending settlements, including the three largest lending
discrimination settlements in the Department's history, $128
million. The Division obtained the largest recovery rewarded in
an employment discrimination case. The Division secured $16
million as part of a settlement to enforce the Americans with
Disabilities Act in more than 10,000 banks and other financial
offices across the country. And in last year alone, the
Division has opened 43 new voting rights cases, more than twice
the number in any previous year, and filed 13 additional
objections to discriminatory voting practices under Section 5
of the Voting Rights Act.
Mr. Perez has accomplished these tasks, and he has restored
confidence and effectiveness of his career staff. There may be
some who disagree with his policy objectives, but even critics
should be impressed by his achievements. And I have, over the
course of the past 2 years, made several requests for hearings
in this Committee on matters including the wave of changes in
State voting laws, various Voting Rights Act pre-clearance
cases, and the Division's enforcement of the National Voter
Registration Act. And to date, we have not held a single
substantive hearing on any of these topics. My colleagues and I
have held forums on these issues across the country. The
public's interest in these matters is overwhelming.
And unfortunately, I suspect that much of today's
discussion will cover long discredited accusations. Instead of
attacking Perez, we ought to get back to the work of
strengthening civil rights and voting rights laws in this
country.
I submit the rest of my statement and thank the Chairman
for the additional time that I was granted.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
Mr. Chairman, once again, I must object to the title of this
hearing: ``Mismanagement at the Civil Rights Division of the Department
of Justice.''
Unnecessarily provocative language demeans the seriousness of the
work we do in this Committee. Our job is to uncover the facts, and then
draw conclusions--not the other way around.
In this case, the title is also misleading. It is designed to
obscure the facts, rather than to make them clear to the public. And it
is intended to harm the reputation of a champion for civil rights and a
decent public servant.
Two days from now, Assistant Attorney General Tom Perez will sit
before the Senate as the President's nominee to lead the Department of
Labor. His tenure as head of the Civil Rights Division of the
Department of Justice has been successful by any measure. To suggest
otherwise is both inaccurate and unfair.
Let us look carefully at the record.
The recent report of the Office of the Inspector General, titled
``A Review of the Operations of the Voting Section of the Civil Rights
Division,'' does, in fact, suggest that there has been mismanagement at
the Civil Rights Division.
But that mismanagement did not occur under today's leadership.
Under the Bush Administration, the Civil Rights Division was an
agency in crisis. Political appointees marginalized the voices of
career attorneys. Those attorneys abandoned the Voting Section at an
alarming rate. The perception in the civil rights community, and often
within the Division, was that the political preferences of the
Administration had taken precedent over the impartial enforcement of
civil rights law.
That suspicion was confirmed in 2008 in a series of three reports
issued jointly by the Office of the Inspector General and the Office of
Professional Responsibility. Those reports concluded that the political
leadership of the Division had violated federal law by politicizing the
hiring process and other personnel decisions.
The recent Inspector General's report paints a similar picture of
that time. From 2003 to 2007, the report notes, ``polarization and
suspicion'' in the Voting Section became ``particularly acute'' as Bush
appointees ``illegally recruited new attorneys into the Voting Section
and other parts of the Division, based on their conservative
affiliations.''
The report also finds that Division leadership ``acted at times
inappropriate or unfairly'' with career attorneys. Changes to
longstanding Division policy that appeared designed to shield
conservative attorneys from criticism only further undermined morale.
That, Mr. Chairman, is true ``mismanagement'': marginalizing the
career experts, politicizing the decision-making process, and
ultimately breaking the law. If the purpose of this hearing was to look
back at conditions in the Division between 2001 and 2008, then today's
title would be appropriate.
But the timing and title of this hearing are no coincidence. They
are intended to disparage the reputation of the Associate Attorney
General as he stands for confirmation.
Fortunately, his record can withstand this partisan attack.
Although he inherited a Division in disarray, Mr. Perez has righted the
ship. In fact, to the extent the Inspector General's report mentions
Mr. Perez at all, it clears him of wrongdoing and credits him for his
management practices.
Moreover, under his leadership:
The Division has obtained $660 million in lending
settlements, including the three largest lending discrimination
settlements in the Department's history.
The Division obtained $128 million in the largest
recovery ever awarded in an employment discrimination case.
The Division secured $16 million as part of a
settlement to enforce the Americans with Disabilities Act at
more than 10,000 banks and other financial retail offices
across the country.
And in the last year alone, the Division has opened
43 new voting rights cases--more than twice the number than in
any previous year--and filed 13 additional objections to
discriminatory voting practices under Section 5 of the Voting
Rights Act.
Mr. Perez has accomplished these tasks and more, and he has
restored the confidence and effectiveness of his career staff. There
may be some who disagree with Mr. Perez's policy objectives, but even
his political opponents should be impressed by his achievements.
I have, over the course of the past two years, made several
requests for hearings on matters including the wave of changes in state
voting law, various Voting Rights Act preclearance cases, and the
Division's enforcement of the National Voter Registration Act. To date,
we have not held a single substantive hearing on any of those topics.
My colleagues and I have held forums on these issues across the
country--the public's interest in these matters is overwhelming.
Unfortunately, I suspect that much of today's discussion will cover
long-discredited accusations of wrongdoing at the Justice Department.
Instead of attacking Mr. Perez, we ought to get back to the work of
strengthening civil rights and voting rights laws in this country. How
many times will we discuss the New Black Panthers case, or the
theoretical possibility of voter fraud, or the idea that the Civil
Rights Division responds selectively to records requests, before we
hold a hearing about making it easier for citizens to vote?
Before any of my colleagues accuse the Assistant Attorney General
for Civil Rights of injecting politics where politics do not belong, I
urge them to think hard about the evidence, about the conclusions of
the Inspector General, and about the context for this hearing today.
I hope my colleagues will put aside this partisan rhetoric and
return to the people's business.
__________
Mr. Goodlatte. I thank the gentleman for his remarks. And I
now turn to the Chair of the Constitution and Civil Justice
Subcommittee, the gentleman from Arizona, Mr. Franks, for his
opening statement.
Mr. Franks. Well, thank you, Mr. Chairman. I want to
express gratitude for allowing me this statement. And I also
want to echo both yours and the Ranking Member's expression of
condolence and concern on behalf of the victims of the attacks
in Boston.
Mr. Chairman, last month the Inspector General at the
Justice Department released a report that exposes serious
mismanagement issues within the Department's Civil Rights
Division. Some of these management issues span two or three
presidential administrations. Others are limited to the present
Administration. Unfortunately, it appears that nothing has been
done by leadership within the Civil Rights Division to correct
this mismanagement, including by its current leader, Assistant
Attorney General, Tom Perez.
The mismanagement uncovered by the IG's report takes
several forms. One of the more disturbing mismanagement issues
identified in the IG's report is a culture of harassment and
mistreatment of conservative employees within the Division. For
example, Mr. Chairman, according to the IG report, ``At least
three career Voting Section employees posted comments on
widely-read liberal Websites concerning Voting Section work and
personnel, including a wide array of inappropriate remarks
ranging from petty and juvenile personal attacks to highly
offensive and potentially threatening statements.''
Mr. Chairman, nothing has been done to end this harassment
and treatment of Division career employees. Employees who
engaged in this hostile, racist, and inappropriate behavior are
still employed by the Department, including one who admitted
lying to the Inspector General. This would be shocking except
for the fact that it appears that the Division's senior
leadership also participated in some of the harassment in at
least one instance involving the removal of a career attorney,
Voting Section chief, Chris Coates. Mr. Coates was harassed and
eventually, with Assistant Attorney General Tom Perez's
approval, was reassigned outside the Division because of his
conservative views. Moreover, the IG determined that political
appointees within the Division provided misleading information
to the Attorney General as rationale to remove Mr. Coates.
Other mismanagement issues under the current Administration
include ``incidents in which Voting Section career staff shared
confidential Section information with outside civil rights
attorneys, some of whom were working on matters where they were
adverse to the Department;: hiring practices that the IG
determined risk ``future violations of merit system principles
as well as for creating perceptions that the Division engages
in favoritism based on ideology and politics;'' and finally,
``widespread and vehement opposition among career employees to
race neutral enforcement of voting laws.''
Mr. Chairman, it appears that the Assistant Attorney
General, Tom Perez, tried to cover up Division employees'
opposition to race neutral enforcement of the laws by providing
misleading testimony to the U.S. Commission on Civil Rights,
despite specifically being briefed on the problem.
Some have claimed that the Obama administration ushered in
a new era at the Civil Rights Division. The IG reports
demonstrate conclusively that such a claim is far from reality.
It appears that instead of correcting problems that may have
existed within the Civil Rights Division during previous
Administrations, that the current leadership within the
Department has only exacerbated them. Indeed, it appears that
the Attorney General was more concerned with manipulating the
rule of law and pushing the limits of justice to strike a
secret deal with the City of St. Paul to preserve a
questionable legal theory than he was with cleaning up the
Civil Rights Division. Moreover, he either allowed pervasive,
hostile, and inappropriate actions to occur, or was willfully
ignorant of what was happening in the Division he is charged
with running.
Mr. Chairman, the Justice Department is one of the Federal
Government's most powerful agencies, and the Civil Rights
Division is one of the Department's largest components. The
Civil Rights Division needs just and competent leadership to
correct the egregious and dysfunctional operation of the
Division uncovered in the IG report. Hopefully by combining
this IG report with strong congressional oversight, reform can
finally come to the Civil Rights Division in the United States
Justice Department.
And I would yield back the balance of my time.
Mr. Goodlatte. The Chair thanks the gentleman, and is now
pleased to recognize the gentleman from New York, the Ranking
Member of the Subcommittee on the Constitution and Civil
Justice, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman. Let me begin by also
expressing my obvious outrage at the terrorist attack in
Boston, and also extend my condolences, as we all do, to the
victims.
Mr. Chairman, this hearing is not about legitimate
oversight of the Civil Rights Division. That is perfectly clear
from its inflammatory title, its timing, and the invitation of
two witnesses with long histories of leveling unfounded
partisan claims against this Administration's Civil Rights
Division.
Any serious oversight effort would have invited testimony
from the Office of Inspector General, whose report is the
alleged subject of this hearing, and from a representative of
the Department of Justice. Apparently, however, scheduling to
ensure their presence would have interfered with efforts to
tarnish Assistant Attorney General Perez's leadership on the
eve of his Senate confirmation hearing as President Obama's
nominee for Secretary of Labor.
Instead, we get two witnesses who were very much a part of
the problem in the last Administration. Mr. von Spakovsky was
counsel to the Civil Rights Division when its leadership was
breaking the law by politicizing hiring and personnel
practices. Mr. Adams misrepresented facts when testifying
before the Civil Rights Commission to bolster his allegation
that the Division is hostile to race neutral enforcement of the
Voting Rights Act.
As the OIG report that we examine today found,
``Polarization and suspicion in the Voting Rights Section
became particularly acute during the period from 2003 to
2007,'' which is the time frame during which these two
witnesses served in the Division. And their ongoing posting on
the Internet of confidential and deliberative Voting Section
information, information that they apparently receive from
current employees, continues to foment partisan rancor and
calls into serious question the legitimacy and credibility of
anything they say today.
We unquestionably will hear plenty of heated rhetoric and
baseless allegations of mismanagement by the current
Administration from these witnesses today. But the actual
evidence paints a very different picture. It shows that
Assistant Attorney General Perez is an effective leader who has
restored the tarnished professionalism, integrity, and
effective civil rights enforcement of the Civil Rights
Division. Under his leadership, the Division has increased
enforcement efforts and obtained unprecedented monetary and
policy settlements across a broad range of substantive areas.
For example, his Division obtained a $660 million in
settlements of lending discrimination lawsuits. It brought
several cases to enforce the Supreme Court's Olmstead decision,
and ensured that Americans with disabilities are not left
languishing in large institutions.
His Division increased the number of human trafficking
cases by 40 percent over the prior 4-year period and convicted
nearly 75 percent more defendants in hate crime cases. It acted
aggressively to protect the rights of military members, working
to eliminate discrimination in housing and lending, and to
ensure the voting rights of our men and women serving overseas.
This is not mismanagement. It is effective leadership, and
that is exactly why Assistant Attorney General Perez has been
targeted for criticism in this hearing and elsewhere. Those who
do not share his commitment to enforcing this Nation's civil
rights laws are unquestionably unhappy with him, but there is
no legitimate legal, ethical, or professional responsibility
basis for their complaints. Rather, this is partisan politics
plain and simple to tarnish the reputation of someone who ought
to be commended for restoring the honor of the Civil Rights
Division of the Justice Department.
This hearing and the Inspector General report of the Voting
Rights Section upon which it rests are stark confirmation of
this fact. The 258-page OIG reports finds absolutely no
evidence that this Administration and, more specifically,
Assistant Attorney General Perez, has made hiring personnel or
law enforcement decisions for racial or political reasons, no
evidence whatsoever in this OIG report. Yet even in the face of
the facts, my colleagues and the panelists that they have
invited to be here today continue to allege otherwise.
There is no question that the Obama administration
inherited a Voting Rights Section in crisis. A prior 2008 Joint
Office of Inspector General and Office of Professional
Responsibility Report documented unlawful misconduct of
political appointees in the Bush administration, who, from 2003
to 2007 made personnel and hiring decisions in an aggressive
effort to pack the Section with employees who shared their
political ideology.
During this time, 31 trial lawyers left the Section,
including many experienced trial attorneys. Workplace culture
and employee morale was severely damaged. Perhaps
unsurprisingly, the vast majority of the troubling and
unacceptable incidence of workplace harassment recounted in the
Inspector General's report that we examine today came during
this time frame, from 2003 to 2007. Yet problems that may have
been fostered and took place prior to Assistant Attorney
General Perez's leadership of the Division will go largely
unexamined by my colleagues.
As the recent OIG report confirms, however, Assistant
Attorney General Perez made several changes to ensure that the
problems recounted in the OIG report remained in the past.
These reforms are working, with the OIG report confirming that
there was no evidence that recent hiring was influenced by
political or ideological bias. Career and merit-based hiring
has been restored so that politics and ideology no longer have
any place in the hiring of individuals entrusted with enforcing
our Nation's civil rights laws.
While broader efforts to restore a workplace culture of
respect, collegiality, and professionalism will unquestionably
take time, those efforts are ongoing and appear to be taking
hold. Assistant Attorney General Perez has worked quickly and
effectively to address the wrongs that he inherited when he
took the helm of the Civil Rights Division. He should be
thanked for his service, and we should all look forward to his
stewardship of the Department of Labor.
As to the Civil Rights Division, this Committee should stop
chasing the unsubstantiated allegations of political activists,
whose prior claims repeatedly have been proven false, only
after the expenditure of tremendous resources and taxpayer
dollars. It is long past time to end the smear campaign against
the Obama administration's Civil Rights Division and allow its
devoted employees to spend their full time and energy enforcing
the Nation's laws.
I thank you, and I yield back the balance of my time.
Mr. Goodlatte. The Chair thanks the gentleman from
Michigan, Mr. Conyers, for his observations about the tragedy
that occurred in Boston yesterday. And I believe it would be
appropriate that we have a moment of silence in remembrance of
those who have lost their lives and those who have suffered
severe injuries, some of whom are fighting for their lives, and
the families, and the citizens of Boston, and the citizens of
America who have rallied to support them. And we will now
observe a moment of silence.
[Moment of silence.]
Mr. Goodlatte. Thank you.
Mr. Conyers. Good idea.
Mr. Goodlatte. We will now welcome our distinguished panel
today. And before I introduce them and swear them in, I do want
to mention that the Assistant Attorney General, Mr. Perez, and
the Inspector General have been invited to testify. And given
the ongoing nature of this and the fact that both Chairman
Issa, and myself, and Ranking Member Grassley in the Senate
have indicated that we intend to pursue the matter,
particularly as it relates to the case before the Supreme Court
and the matter with the City of St. Paul, Minnesota, that I
suspect that they will be afforded additional opportunities to
testify.
At this time, we would welcome our distinguished panel, and
ask that they all rise and be sworn in.
[Witnesses sworn.]
Mr. Goodlatte. Thank you very much. Please be seated. Let
the record reflect that all the witnesses responded in the
affirmative.
Our first witness is Mr. Hans von Spakovsky, Senior Legal
Fellow in the Center for Legal and Judicial Studies at the
Heritage Foundation, and Manager of the Civil Justice Reform
Initiative. He has published extensively on elections, voting,
and civil rights issues, including the management of the Civil
Rights Division and the handling of its enforcement
responsibilities.
Prior to his time at The Heritage Foundation, Mr. von
Spakovsky was a Commissioner on the Federal Election Commission
and a career civil service lawyer in the Civil Rights Division
of the Department of Justice. As a Counsel to the Assistant
Attorney General for Civil Rights, he helped coordinate the
enforcement of Federal laws that guarantee the right to vote.
Our second witness today is Mr. Harry Mihet, Senior
Litigation Counsel with Liberty Counsel, an international
nonprofit litigation, education, and policy organization
dedicated to advancing religious freedom, the sanctity of life
and the family. Liberty Counsel is associated with Liberty
University, which I am proud to say is in Lynchburg, Virginia,
a part of the 6th District that I represent.
Mr. Mihet grew up in communist Romania, where his father
pastored 17, mostly underground, churches. Because of this, his
family suffered great persecution. At the age of 12, he
participated in the Christmas Revolution of 1989, which
overthrew Romania's oppressive communist regime. Once he
immigrated to the United States, Mr. Mihet received his
undergraduate degrees in Political Science and Criminology from
the University Florida and graduated magna cum laude from Duke
University School of Law.
The third member of our witness panel is Mr. Bagenstos, a
professor of law at Michigan Law School. Mr. Bagenstos
specializes in civil rights law, public law, and litigation.
From 2009 to 2011, he was a political appointee in the U.S.
Department of Justice, where he served as the Principal Deputy
Assistant Attorney General for Civil Rights, the number two
official in the Civil Rights Division. He has been widely
published in law journals, and remains an active appellate and
Supreme Court litigator in civil rights and federalism cases.
He clerked for Judge Steven Reinhardt on the 9th Circuit
Court of Appeals and for Justice Ruth Bader Ginsburg of the
United States Supreme Court.
Our final witness is Mr. J. Christian Adams, the founder of
the Election Law Center. In addition, Mr. Adams, also serves as
legal editor of PJMedia.com, an Internet news publication.
Previously, Mr. Adams served in the Voting Section at the
U.S. Department of Justice from 2005 to 2010, where he brought
a wide range of election cases to protect racial minorities in
South Carolina, Florida, and Texas. Mr. Adams successfully
litigated the landmark case of United States v. Ike Brown in
the Southern District of Mississippi, the first case brought
under the Voting Rights Act on behalf of a discriminated
against White minority in Noxubee County.
Mr. Adams has received the Department of Justice Award for
Outstanding Service and numerous other Justice Department
performance awards.
I thank all of you for joining us, and we will begin with
Mr. von Spakovsky. Each witness has written statements that
will be entered into the record in their entirety. I ask that
each of you summarize your testimony in 5 minutes or less. To
help you stay within that time, there is a timing light on your
table. When the light switches from green to yellow, you will
have 1 minute to conclude your testimony. When the light turns
red, it signals that the witness' 5 minutes have expired.
We will now proceed under the 5-minute rule. And, Mr. von
Spakovsky, welcome.
TESTIMONY OF HANS A. von SPAKOVSKY, SENIOR LEGAL FELLOW AND
MANAGER, CIVIL JUSTICE REFORM, THE HERITAGE FOUNDATION
Mr. von Spakovsky. Thank you. I appreciate the invitation
to discuss the mismanagement of the Civil Rights Division and
its toxic culture where I spent 4 years as a career lawyer.
The IG report is a sad commentary on a dysfunctional
division torn by polarization and unprofessional behavior,
where career employees who do not tow liberal views are
subjected to racist comments, harassment, bullying, and threats
of physical violence. It is engaged in discriminatory hiring
practices and has pursued meritless cases based on ideology
rather than the law.
Perhaps the most disturbing problem is the hostility toward
race neutral enforcement of Federal voting laws. The IG report
details the ostracism of employees who believe in race neutral
enforcement by those who do not think that racial minorities
who discriminate should be discriminated.
This culminated in the mistreatment of Christopher Coates,
the chief of the Voting Section who has received numerous
awards for his outstanding work, including from the NAACP. This
Administration drove Coates out because they disagreed with his
proper race neutral view of the law that individuals who
violate Federal law should not be given a free pass because of
their race. This is one of the most shameful revelations in the
IG report.
The Division also ordered Christopher Coates and Christian
Adams not to respond to subpoenas from the U.S. Commission on
Civil Rights, which was investigating the dismissal of the New
Black Panther voter intimidation case. Apparently this Division
does not believe it has to abide by the rule of law like
everyone else.
The head of the Division, Thomas Perez, misled the U.S.
Civil Rights Commission in his testimony about the New Black
Panther case. He was specifically asked whether ``any political
leadership was involved in the decision not to pursue the
case.'' Perez said no, yet a Federal judge has said that DoJ's
internal documents contradict that testimony. The IG said Perez
should have sought more details about this before his
testimony. Being uninformed on the correct answer to this
question was the result of either incompetence or deliberate
ignorance.
Further, Perez was specifically asked whether he knew about
the hostility toward race neutral enforcement of his staff.
Perez said there were ``no people of that ilk in the
Division.'' Yet Coates and Adams briefed Perez the day before
his testimony about that disgusting attitude.
Perez was also specifically asked whether he believed in
the race neutral enforcement. He told the Commission he did,
yet the IG report says that Perez informed the IG that he does
not believe that White voters are protected under Section 5 of
the Voting Rights Act.
The Division also abuses its power through radical claims
and filing meritless suits. In the Hosanna-Tabor case before
the Supreme Court, Mr. Perez signed onto a brief arguing that
the religious freedom clause of the First Amendment did not
extend to the hiring decisions of a church. This was such an
extreme position that all nine justices of the Supreme Court
found the arguments of the Justice Department untenable.
In addition to the FACE Act cases, which Mr. Mihet is going
to talk to you about, the Division was forced to pay Arkansas
$150,000 last year when a case under the Civil Rights for
Institutional Persons Act was dismissed by a Federal court
after the judge found almost no evidence to support the
Division's claims.
The Division has tried to twist Federal discrimination laws
to go after school districts for having dress codes that
prevent boys from going to school in drag. The Administration
also has engaged in biased hiring, setting up criteria that
``resulted in a pool of select candidates that was
overwhelmingly Democratic liberal in affiliation,'' according
to the IG. The IG report notes that ``The Voting Section passed
over candidates who had stellar academic credentials and
litigation experience with some of the best law firms in the
country.'' The Division might as well have put up a sign that
said ``conservatives need not apply.''
Let me conclude by talking about an issue that shows just
how bad the situation is in the Division that is a personal
issue.
The IG report describes the nasty postings made by career
staff on ``widely-read liberal Websites concerning Voting
Section work and personnel.'' The highly offensive comments
included suggestions that the parents of one former career
Section attorney were Nazis. Those comments were directed at
me. My mother grew up in Nazi Germany, and she was arrested by
the Gestapo when she was a teenager. That she survived is a
testament to her courage and the grace of God. My father fled
communist Russia and fought as a partisan against the Nazis in
Yugoslavia during World War II.
It is shameful that such cruel, untrue comments were made
publicly about my parents by fellow employees because of my
personal views and my belief that the Voting Rights Act
protects all voters from discrimination. Believing in equal
enforcement of the law makes you a pariah in the Division and
subject to being called a Nazi.
Some of these same employees are no doubt sitting in their
offices at 1800 G Street watching this hearing today. Employees
who bragged to the IG about their harassment and cyber bullying
of conservative employees are still employed by the Division as
is another unapologetic employee who admitted committing
perjury. The Division is filled with biased and unprofessional
behavior that is unacceptable from a government lawyer, and
conservative employees continue to be marginalized.
The Division must enforce the law equally and fairly in a
manner that meets the highest ethical and professional
standards and protects all Americans from discrimination. That
is not being done in the Civil Rights Division today.
Thank you.
[The prepared statement of Mr. von Spakovsky follows:]
__________
Mr. Goodlatte. Thank you, Mr. von Spakovsky.
Mr. Mihet, welcome.
TESTIMONY OF HORATIO G. MIHET,
SENIOR LITIGATION COUNSEL, LIBERTY COUNSEL
Mr. Mihet. Chairman Goodlatte, Ranking Member Conyers, and
Members of the Judiciary Committee, thank you for inviting me
to testify before you today. My name is Horatio Mihet, and I am
Senior Litigation Counsel at Liberty Counsel, a nationwide
nonprofit firm dedicated to protecting our first freedoms.
Having grown up under a totalitarian regime, I have seen
firsthand what happens when the very government agency charged
with protecting civil rights becomes complicit in violating
them. Unfortunately, that is precisely what the Civil Rights
Division under the leadership of Thomas Perez has done with
Liberty Counsel's client, Susan Pine, a 61-year-old American
from Florida.
Susan has for over 20 years spent her free time outside of
an abortion clinic peacefully counseling expectant mothers
about alternatives to abortion. In 2009, after trying
unsuccessfully for years to silence Susan, the abortion clinic
began to entreat the DoJ to eject her from that public square.
Mr. Perez readily agreed, and he assigned seven of his top
litigators, including himself, to file a lawsuit against Susan
under the Freedom of Access to Clinic Entrances Act, or FACE.
Now, before filing this lawsuit, Mr. Perez flew several of
these taxpayer-funded lawyers from Washington, D.C. to Florida
in November 2009 to have a taxpayer-funded stakeout outside
this clinic, to see if by chance Susan might violate the law
while these lawyers are hiding in the bushes watching her. In
its lawsuit filed 9 months later, the DoJ then claimed that on
the same day that its lawyers were descending upon West Palm
Beach, Susan obstructed one vehicle attempting to enter the
clinic's parking lot.
Now, there were many clear signs indicating to every
reasonable observer that this was nothing more than a political
prosecution not grounded in any fact or law. First, there was
no victim. No one actually came forward to complain of being
obstructed. Instead, the lawsuit was filed entirely based on
what one police officer claimed that he saw from the bushes 300
feet away. This officer conveniently forgot to record the
license plate of this phantom vehicle, and he forgot to
identify this mystery driver that was allegedly obstructed, so
that all we had was his word.
Second, Mr. Perez did not file his lawsuit in November
2009. He waited over 9 months to file it, just long enough for
the clinic to conveniently destroy the videotapes from its
surveillance cameras, as well as its patient sign-in sheets.
The court found that the DoJ was ``negligent'' and ``even
grossly negligent'' in its failure to preserve this critical
evidence.
Third, the DoJ claimed that Susan ``stopped and stood in
front of a vehicle in the pedestrian crosswalk.'' Now, this
allegation was entirely made up by the DoJ because its own
witness, the police officer hiding in the bushes, testified
under oath that once this phantom vehicle stopped, Susan
``immediately got out of its path.'' The officer himself
admitted that she did not stop and stand in front of any
vehicle.
And so, after almost 2 years of litigation against Mr.
Perez and his legal dream team, the court concluded that the
DoJ suit did not even warrant a trial, and granted us summary
judgment. Judge Ryskamp said, ``The court is at a loss as why
the government chose to prosecute this particular case in the
first place.'' He concluded that the DoJ's position was
inconceivable and absurd, and he suspected a conspiracy was
afoot between the DoJ and the clinic to deprive Susan of her
First Amendment rights.
We asked the Court, based on its findings, to sanction Mr.
Perez and his legal team for filing a frivolous lawsuit. Rather
than await the results of that motion, Mr. Perez and his team
quietly paid $120,000 out of the public treasury and then moved
on to their next target.
So throughout this litigation and several others like it,
the leadership at the Civil Rights Division has demonstrated
that it cannot be trusted to follow the law whenever it
conflicts with their ideology. We, therefore, would urge this
Committee to exercise its constitutional authority and
oversight, and to take whatever steps are necessary to restore
the public's trust in the institution that is charged with
safeguarding and protecting our most basic and cherished
freedoms.
I thank you for inviting me, and I look forward to
answering any questions that you might have.
[The prepared statement of Mr. Mihet follows:]
SUPPLEMENT
__________
Mr. Goodlatte. Thank you very much.
Professor Bagenstos, welcome.
TESTIMONY OF SAMUEL R. BAGENSTOS, PROFESSOR OF LAW, THE
UNIVERSITY OF MICHIGAN LAW SCHOOL
Mr. Bagenstos. Thank you. Thank you, Mr. Chairman, and
thank you, Ranking Member Conyers, and Members of the Committee
for inviting me to testify today. I have had the privilege in
my life of serving twice in the Civil Rights Division of the
Justice Department, first at the beginning of my career as a
career attorney where I really learned how to be a lawyer from
the excellent career attorneys who had been civil servants
throughout many Administrations in the Civil Rights Division,
and then as a member of the senior leadership team in the
Division as a political appointee from mid-2009 to mid-2011.
And I began service as Principle Deputy Assistant Attorney
General in January of 2010, which was one of the great honors
of my career.
Now, I discuss in my written testimony the many, many
achievements, and only a subset of the many, many achievements,
of the Division in the last 4 years. Let me just note a few
here because they are extremely notable: 40 percent more human
trafficking cases; nearly 75 percent more hate crimes
convictions than the previous 4 years; an unprecedented effort
to enforce the Supreme Court's Olmstead decision for people
with disabilities, including 44 matters in 23 States with major
settlements with North Carolina, Virginia, Georgia, and
Delaware; 16 agreements to guarantee services to English
language learners; 10 agreements to address the serious problem
of discriminatory harassment that keeps kids from learning;
record setting settlements for sexual harassment by landlords
of their tenants; and more than $600 million in settlements for
violations of the Fair Lending Laws.
More than $50 million in relief for our soldiers and
sailors under the Service Member Civil Relief Act; nearly 40
percent increase in the number of cases brought to enforce the
employment rights of our returning veterans; and landmark
settlements with the New Orleans Police Department and the
Shelby County, Tennessee juvenile just system, in addition to
many, many others.
But perhaps the best illustration of the success of the
Assistant Attorney General Perez's effort comes from the voting
rights area. When Tom Perez arrived in 2009, in October of
2009, the Division's Voting Section was in disarray, and his
career staff was demoralized. Both the IG's recent report and
its 2008 joint report with the Office of Professional
Responsibility document this fact extensively. Those reports
show massive turnover among career attorneys from 2003 to 2008,
and a pervasive atmosphere of politicization in the Voting
Section, an atmosphere that stemmed--unfortunately I hate to
say this--but an atmosphere that stemmed directly from the
reports found to be the unlawful politicized hiring decisions
made by a former Acting Assistant Attorney General, Brad
Schlozman.
Details are in my written testimony, but the 2008 joint
report really bears careful reading for anyone who wants to
understand the management task that Tom Perez was confronting
when he took over.
Now, this kind of pervasive politicization of the career
civil service from the very top is a culture that cannot be
changed overnight, and nobody thinks it can. But Tom Perez
realized he had to begin right away to restore the culture of
nonpartisanship, transparency, and professionalism to the
Division, and that is exactly what he did.
After taking office in October of 2009, he quickly moved to
restore a career-driven, merit-based hiring process, and the
recent OIG report demonstrates that this process has been
successful. In making hires under the new policy, the report
found, the Voting Section ``was keenly focused on the
candidates' voting litigation experience and substantive
knowledge of voting rights.'' That is exactly what they should
have been focused on.
The report found that the new attorneys had ``a high degree
of academic and professional achievement, and that the hired
attorneys had substantially higher achievement than the people
who were not hired.'' Now, of course, culture change takes
time, but the Voting Section has made major progress, and the
proof is in the results.
In each of the past 2 Fiscal Years, the Section set a
record for the largest number of new matters in litigation it
has handled: 43 last year, 27 the year before. These include
major, major cases defending judicial preclearance actions and
defending the constitutionality of Section 5 of the Voting
Rights Act. In the last 4 years, the Section has filed and
obtained settlements in seven cases to enforce the Voting
Rights Act's language minority provisions, including the first
case brought on behalf of Native Americans since 1998. It has
filed new lawsuits under Section 7 of the National Voter
Registration Act, including a major settlement with the State
of Rhode Island, and it has vigorously enforced the MOVE Act,
which ensures that our men and women in uniform and other
citizens overseas have their voting rights protected. Twenty-
one litigations or settlements since the act took effect, all
in this Administration, including filing lawsuits and obtaining
consent degrees or preliminary injunctive relief against six
States and the Virgin Islands in the 2012 election alone.
Now, similar stories could be told throughout the Division.
When Tom Perez arrived at the Civil Rights Division, it was
divided and demoralized. The work is not done, but thanks to
his leadership and management skills and the very hard work of
extraordinarily dedicated career attorneys, things have turned
around, and I am very pleased to testify about that today.
[The prepared statement of Mr. Bagenstos follows:]
__________
Mr. Goodlatte. Thank you very much.
And our final witness, Mr. Adams. Welcome.
TESTIMONY OF J. CHRISTIAN ADAMS,
FOUNDER, ELECTION LAW CENTER
Mr. Adams. Thank you, Mr. Chairman, Ranking Member Conyers,
and Members of this Committee.
While at the Department, I was fortunate to serve with
dedicated attorneys and staff who had profound respect for the
rule of law and placed integrity at the center of their
personal and professional life.
Unfortunately, over the last few years, the Civil Rights
Division of the Justice Department has seen instances of
embezzlement, employee abuse, harassment, theft, and perjury.
Little to nothing has been done by Division management in
response. In some cases, Division management has defended, or
promoted, or given awards to the wrongdoers.
Tragically, the Civil Rights Division has also pursued
abusive and meritless cases against Americans exercising free
speech rights, as well as States enacting voter integrity
measures. So meritless, courts have imposed cost sanctions
against the Division. Simply, the Civil Rights Division under
the current management have pervasively abused the civil rights
of Americans, abused the fiscal trust of the taxpayers, and
abused the rule of law.
Perhaps worst of all, Thomas Perez, the Assistant Attorney
General for Civil Rights, has repeatedly provided inaccurate
testimony under oath to this Committee, as well as the Civil
Rights Commission on multiple matters, including whether or not
he knew that this corrosive and abusive atmosphere existed
inside his Division toward employees willing to enforce the
voting laws in a race neutral fashion.
This hostility toward enforcement of voting laws in a race
neutral has festered into name calling, harassment, racial
attacks on DoJ employees, both Black and White, who were
willing to enforce the law race neutrally. For example, the IG
report documents vile racial harassment against an African-
American paralegal, who served on the New Black Panther case
with me and another similar matter. This dedicated and
hardworking paralegal, as well as his mother, who is a long-
time DoJ employee, was subject to cruel racial harassment by
other DoJ employees for working on the New Black Panther case.
When Mr. Perez testified in May of 2010 before the U.S.
Commission on Civil Rights that he had never heard of this sort
of hostility, he testified falsely.
My written testimony details multiple instances of
harassment of an employee also for his evangelical
Christianity.
There is a false perception that the Division has
vigorously protected minority voting rights more than the prior
Administration. The current Administration has failed to
initiate a single Section 2 Voting Rights Act case
investigation which resulted in enforcement action since the
inauguration in 2009. Voter rolls nationwide are filled with
millions of ineligible and dead voters, yet the Division is
deliberately refusing to enforce Section 8 of the National
Voter Registration Act, and require States to purge their voter
rolls because Division leadership, as detailed in the IG
report, has a philosophical disagreement with this purging
statute. Hundreds of counties across the country now have more
voters registered than people alive, and this Division
leadership spiked investigations into these places.
A Washington Times story headlined, ``Taxpayers Finance
Justice Officials' Romantic Travel,'' reported that a Division
employee embezzled at least $30,000 in money and travel,
including hotel rooms in Miami, and according to Senator
Grassley--excuse me, and cash advances. Current Division
leadership oversaw this fiasco, yet according to Senator
Grassley, did absolutely nothing about it. The whistleblowers
in this case have been treated more poorly by Division
leadership than was the person who took the money.
Division leadership has overruled career lawyers who
recommended South Carolina voter ID be pre-cleared in 2011
under Section 5 of the Voting Rights Act. Their recommendation
was overruled. An expensive, costly, and ultimately meritless
objection was interposed. South Carolina was forced to spend
over $3.5 million to obtain approval of South Carolina voter
ID. The Federal taxpayers almost certainly also wasted
millions.
As I have already testified, the hostility in the Division
toward equal enforcement of civil rights laws was open and
pervasive. The IG report confirms all of my testimony in that
regard. Former Voting Section Chief Christopher Coates was
subject to harassment, and many of those employees who engaged
in this conduct are still employed by the Division.
Coates was targeted for removal by the Division and
political appointees specifically because of his willingness to
enforce the law equally. The Attorney General was even aware of
this and did not instruct Division leadership that it could be
illegal to target Coates in this way. The IG report documents
many other details.
In a few decades, America will look very different. The
founding documents presume that all Americans should be treated
equally before the law, and it is time that the Civil Rights
Division act accordingly.
[The prepared statement of Mr. Adams follows:]
__________
Mr. Goodlatte. Thank you, Mr. Adams.
We will now proceed under the 5-minute rule with questions,
and I will begin by recognizing myself for 5 minutes.
First, I would like to ask unanimous consent to put into
the record a joint report of the House Committee on Oversight
and Government Reform, the House Judiciary Committee, and the
Senate Judiciary Committee minority. The report is titled,
``DoJ's Quid Pro Quo with St. Paul: How Assistant Attorney
General Thomas Perez Manipulated Justice and Ignored the Rule
of Law.''
Without objection, it will be made a part of the record.
[The information referred to follows:]
__________
Mr. Goodlatte. And I would like to ask my first question to
Mr. von Spakovsky and Mr. Adams, and I would like to ask you
this: in your experience as attorneys at the Justice
Department, whether you or do you know of anyone else who ever
participated in or ever became aware of a quid pro quo like the
one that occurred between Tom Perez and the City of St. Paul?
That is, a deal in which the United States agreed to settle two
cases in which the United States could have made a significant
recovery to the United States Treasury in one in exchange for a
litigant dismissing a case in which the United States was not
even a party?
Mr. von Spakovsky?
Mr. von Spakovsky. Mr. Chairman, I am not aware of anything
like that happening. When I was at the Civil Rights Division, I
knew people in the Civil Division, which was involved in this
particular deal. And we would have considered it improper and
unethical to have requested the Civil Division to give up a qui
tam action under the False Claims Act where the American
taxpayer was possibly going to recover $200 million, especially
in this case, which, as I understand it, both HUD, the Civil
Division, and the U.S. Attorney's Office in Minnesota thought
it was most egregious examples of false certifications they had
ever seen. To ask them to dismiss a case like that in exchange
for asking St. Paul to dismiss a case in which we were not even
a party because they were afraid the Supreme Court would toss
out a discredited legal theory.
I mean, I think that is unethical, and I think, quite
frankly, it violates professional codes of conduct. For
example, Rule 1.3 of the D.C. Code, which says that you are not
supposed to intentionally fail to seek lawful objectives of a
client or prejudice or damage a client. And that is, in fact,
what happened this case, prejudicing and damaging the False
Claims Act that the American taxpayer had.
Mr. Goodlatte. Mr. Adams?
Mr. Adams. Mr. Chairman, that would have been radioactive
for us to leverage one division's enforcement authority to a
civil rights matter.
But the report from the House Oversight Committee had
something even more disturbing, and that is that the Assistant
Attorney General was doing this by using his personal Verizon
email account. When he was asked by Oversight Committee
investigators whether or not he was using his personal email to
do the St. Paul, he said he did not recall until he was
confronted with a document showing that he did, and then he
recalled.
Mr. Goodlatte. Mr. Adams, in a 2012 decision by the D.C.
District Court, the court states, ``The documents reveal that
political appointees within the Department were conferring
about the state and resolution of the New Black Panther Party
case in the days preceding the Department's dismissal of claims
in that case,'' which would appear to contradict Assistant
Attorney General Perez's testimony that political leadership
was not involved in the decision.
Did Mr. Perez mislead the Civil Rights Commission and the
Congress?
Mr. Adams. Well, there are two points involving Mr. Perez's
testimony, and the first one the IG report deals with. The
second does not deal with in the IG report.
The first one. He was asked whether or not anybody besides
career lawyers were involved in the decision to dismiss the New
Black Panthers, and he testified no. The IG report says he was
not forthcoming. He should have inquired into greater detail.
It did not accuse him of committing perjury.
The second point, though, is more important, and the IG
report is silent. He was asked whether or not he knew about the
open and pervasive hostility toward race neutral enforcement,
which frankly is worse than political appointees being involved
in the dismissal. He testified that there were no people of
that ilk in that Division. Of course, that is false. He knew
there were people of that ilk because we told him the day
before there were. Secondly, the IG report details dozens of
instances of people of that ilk, including him----
Mr. Goodlatte. Mr. Adams, I am going to interrupt you
because I have got one more question to ask you, and then you
can answer that, and then we will move on to the Ranking
Member.
In your written testimony, you cited a December 2009
statement that Mr. Perez made before the American Constitution
Society where he stated, ``Those who have been entrusted with
the keys to the Division treated it like a buffet line at the
cafeteria, cherry picking which laws to enforce.'' In your
opinion, does Mr. Perez's record as Assistant Attorney General
reflect an improvement of this image of the Civil Rights
Division?
Mr. Adams. It is worse. I would put our record up against
anybody in the Division. We brought cases under Section 2 to
protect minority voting rights, Section 203, foreign language
protections. We protected people under both Section 7 and
Section 8 of Motor Voter. We enforced all the laws. We did not
treat it as a buffet line.
It has been precisely the opposite. No Section 7. No
Section 2. Barely any Section 203 cases. They are focused on
different priorities instead of all priorities.
Mr. Goodlatte. Thank you very much. My time has expired.
The gentleman from Michigan, Mr. Conyers, is recognized for
5 minutes.
Mr. Conyers. Thank you. Mr. Chairman, I ask unanimous
consent to enter in the Democratic staff findings on the
results of the investigation of the St. Paul decision, and also
10 errors and mischaracterizations and omissions in the other
report.
Mr. Goodlatte. Without objection, they will be made a part
of the record.
[The information referred to follows:]
__________
__________
Mr. Goodlatte. And the gentleman is recognized.
Mr. Conyers. Thank you. Could I begin by asking Professor
Bagenstos to just review, since we are all under 5 minutes,
just a couple of the problems that we have had with the
accuracy of the allegations. It sometimes seems like we are
talking about two completely different sets of events and work
in the Civil Rights Division.
Mr. Bagenstos. I think that is right, you know. So when I
read the Inspector General's report with great interest, as I
think everybody at this table did, what I saw in the report is,
number one, the report goes through allegations of politicized
hiring in this Administration and finds there was no
politicized hiring in this Administration.
The report rehashes once again what had already been
investigated by the Office of Professional Responsibility with
respect to the New Black Panther case, and finds, as the Office
of Professional Responsibility did, there was nothing illegal,
unethical, or improper that happened in that case.
The report finds a number of incidents of harassment of
employees, which are unacceptable, and I want to say that. But
I will note that the incidents of harassment of employees that
the report finds are centered in the period between 2003 and
2007, and there are no incidents of harassment found by the
report that I could find that post-dated 2009. Of course, Tom
Perez became Assistant Attorney General in October of 2009.
Mr. Conyers. Right.
Mr. Bagenstos. Obviously there is work still to be done,
but that is consistent with him making substantial progress.
Mr. Conyers. Now, in your view, did Mr. Perez not reverse
some of the unlawful practices and negative trends that had
been established before he became the head of this part of the
Civil Rights Division?
Mr. Bagenstos. Absolutely. And so the two examples are,
one, the career driven, nonpartisan, merit-based hiring
process, which, as I said in my prepared and spoken testimony,
the Inspector General found was successful in hiring people
with a high degree of skills. Also restoring the role of career
attorneys in the Section 5 pre-clearance process is
exceptionally important, and that was something that was a very
big priority of Tom Perez's.
Mr. Conyers. Yes. And after the departure of the Bush
administration, did you find that Mr. Perez took the
appropriate steps to address the Inspector General's 2008
findings after becoming what has now been characterized, a
division in crisis?
Mr. Bagenstos. I think he did, absolutely. Absolutely. I
think, you know, it was Tom Perez's major priority from day one
to restore the traditions of the Civil Rights Division, which
is a nonpartisan tradition of enforcement of civil rights. As I
said when I started my career as a career attorney, the people
who I looked up to, the people who are my bosses, my first boss
had actually had been hired during the Reagan administration.
You know, Tom Perez came to work as an intern in the Reagan
administration. He wanted to restore that, and I think the
evidence suggests that he did restore the nonpartisan, and
merit-based, and career driven aspects of our practice.
Mr. Conyers. Well, I am the only Member of this Committee
that voted to pass the 1965 Voting Rights Act. That is because
I was the only one here. It was not they were not in support of
it. But I was grateful when Jim Sensenbrenner on this Committee
joined with us and others when we reenacted and went further in
2006. And we now have Section 5, pre-clearance. Why is that so
crucial to halting discriminatory practices in voting?
Mr. Bagenstos. It is so crucial. I think, you know, the
best example of that actually is given by the preclearance
decisions of the Federal District Court this year, this past
year, in response to the objections or litigation by the
Justice Department. When the District Court in D.C., Republican
and Democratic judges, Democratic appointed judges, denied pre-
clearance to various voting chances because they said there is
still substantial discrimination going on, and these laws are
still necessary.
Judge Bates, a George W. Bush appointee to the District
Court, who wrote the opinion upholding the Voting Rights Act
extension, also said in the South Carolina case, look, this is
an example of why we need Section 5 of the Voting Rights Act.
Mr. Conyers. Exactly. Thank you very much. Very much.
Mr. Goodlatte. I thank the Ranking Member.
And the Chair now recognizes the gentleman from Iowa, Mr.
King, for 5 minutes.
Mr. King. Thank you, Mr. Chairman. I thank the witnesses,
and I happened to have a couple of flashbacks from testimony
before this Committee by Mr. Perez. And I picked out some of
the language along the line of our witnesses. I turn first to
Mr. von Spakovsky and ask you, as you testified, as you
reviewed this, as you read the record, I would like to take
this to the perjury discussion.
If I remember right, Mr. Perez was sitting in exactly that
same chair when he told me that the maximum penalty under the
law had been applied to the perpetrators at the Philadelphia
New Black Panthers case. Do you have knowledge of that
testimony, and do you believe that his testimony, that that was
the maximum penalty applied under the law, was a dishonest
statement before this Committee?
Mr. von Spakovsky. Well, I have never seen a case in my
career at the Justice Department where the Department decided
when the defendant defaulted and did not answer the claim,
therefore, admitting all of the allegations, would suddenly
decide to dismiss the case.
And the one injunction that they did get was considerably
weakened. It was for a short period of time. And all too early
at times, one of the defendants who had engaged in this
despicable behavior was a poll watcher again in Philadelphia.
Mr. King. And when Mr. Perez testified that they had
applied the maximum penalty under the law, and I asked him
specifically, do you believe that today that the maximum
penalty was obtained, and his answer was, that was the maximum
penalty. We know today that it was, in fact, a minimum penalty
rather than a maximum penalty. Would you agree with that?
Mr. von Spakovsky. I would agree with that, yes.
Mr. King. Thank you. And I would turn to Mr. Adams with a
similar question. You have been involved in the middle of this
and you have watched this unfold. I recall also testimony, a
question that was asked by Mr. Gohmert. Five times he asked Mr.
Perez, did you review the videotape of the New Black Panther
intimidation that took place in Philadelphia, and after the
fifth question, he finally and reluctantly answered, yes. If
you were evaluating this for potential prosecution of someone
who was not forthcoming, would that be something that would
bring your antenna up to listen very carefully to the balance
of his answers? And what is your viewpoint on whether perjury
was committed before this Committee?
Mr. Adams. Well, Mr. King, I do not have the benefit of Mr.
Perez's transcript. But I will say this, that there are
criminal penalties associated with violations of Section 11 of
the Voting Rights Act, which, as far as I know, could still be
imposed against those New Black Panthers. They could still be
indicted today.
There are nationwide injunctions available, and as you
know, the injunction was restricted to the city of
Philadelphia, and it was limited in time as opposed to being
permanent.
Mr. King. And so the testimony by Mr. Perez, it is a clear
matter of the record that they had applied the maximum penalty
allowable under the law. Could you devise how that could be an
honest statement before this Committee?
Mr. Adams. Well, I would prefer to see the Black Panthers
indicted. Obviously that has not happened.
Mr. King. And I will make this point back again, that in a
Justice Department that would objectively be not choosing from
the cafeteria form of what to prosecute, what kind of justice
under the law could happen when you have an Administration, an
Attorney General, and an Assistant Attorney General that all
seem to agree that the civil rights cases under the law should
be brought selectively with a preference for people of, let me
say, certain ethnicity or race.
How would justice ever prevail in an Administration that
was locked in from the White House, to the Attorney General, to
the Assistant Attorney General, and have people come before
this Committee and provide dishonest statements to the Justice
Department? Is there anybody out there that can prosecute
perjury if it takes place before this Committee, or how would
that take place?
Mr. Adams. Well, I would probably direct that question to
your staff. But generally speaking, it is important to have
equal enforcement of the law. It is a bedrock principle of
America that----
Mr. King. Mr. Adams, I know you have contemplated this, so
could you give me a little bit more, maybe a hypothetical
response on how that might happen at a different time----
Mr. Adams. Sure. I mean, the U.S. Attorney would look at a
transcript, the U.S. Attorney for the District of Columbia----
Mr. King. Pardon me, I am sorry?
Mr. Adams [continuing]. Would look at a transcript, look at
the law, and make a decision. But to get the U.S. Attorney from
the District of Columbia to do so may be a task.
Mr. King. That is my point. And I would turn back to Mr.
von Spakovsky. How would justice prevail under the
configuration that I have described hypothetically?
Mr. von Spakovsky. Well, there are not often voting cases
pursued by the Department where they have video evidence. And I
was at the Civil Rights Commission when the poll watchers and
others who were actually there came in and testified, and it
was extremely strong testimony. I think it would be fairly easy
to win a criminal prosecution for voter intimidation.
Mr. King. Easy to win, and perhaps difficult to confirm
someone who would perpetrate such a thing.
I thank all the witnesses, and I yield back the balance of
my time.
Mr. Gowdy [presiding]. I thank the gentleman from Iowa.
The Chair would now recognize the gentleman from New York,
Mr. Nadler.
Mr. Nadler. Thank you. Mr. von Spakovsky, do you have any
firsthand personal knowledge of the Magner v. Gallagher case, a
matter about which you testified, yes or no?
Mr. von Spakovsky. No.
Mr. Nadler. Thank you very much. I would point out that
people have investigated this and have talked to the
individuals involved. Namely, the minority staff have concluded
there was no inappropriate conduct.
Since we have wasted our time with more misinformation
about the New Black Panther Party case, let me just comment
that that case was investigated in the recent OIG report as
well as in a prior Office of Professional Responsibility
report. The allegations of voter intimidation were taken
seriously in that case, as they should be. Without any evidence
that any voter felt intimidated, and having determined that
many of the charges lacked sufficient evidentiary support,
experienced career DoJ lawyers decided to dismiss some of the
defendants in that case. These decisions came before Assistant
Attorney General Perez assumed leadership of the Civil Rights
Division.
We have now spent 6 years and hundreds of thousands of
taxpayer dollars investigating baseless allegations that these
decisions were racially or politically motivated. Those
allegations have now been investigated and debunked twice
before we hear crap again today with both the Inspector General
and the----
Mr. Issa. Would the gentleman yield?
Mr. Nadler. No, I will not.
Mr. Issa. I did not catch the word.
Mr. Nadler. What word?
Mr. Issa. We hear something. Again, I could not understand
what it is.
Mr. Nadler. I think I said ``nonsense.''
Mr. Issa. Okay, ``nonsense.'' That is what I thought, thank
you.
Mr. Nadler. Baseless nonsense, ill-motivated baseless
nonsense. Those allegations have now been investigated and
debunked twice with both the Inspector General and the Office
of Professional Responsibility, finding that these decisions
were based on the facts in the law and nothing else.
There should be no bite at this apple. Any continued claims
of wrongdoing in efforts to taint this Administration or
Assistant Attorney General Perez with this case should be
flatly rejected as the ill-motivated nonsense that they are.
Professor Bagenstos, it has been alleged that little
changed in the Civil Division from the leadership of the Bush
administration where key leaders broke the law by engaging in
politicized hiring personnel practices. Do you agree?
Mr. Bagenstos. I disagree. Very much has changed. I mean,
there has been a very substantial change in both the policies
adopted for purposes of hiring, which have restored
nonpartisan, merit-based, and career-driven hiring, and there
has been a change, I think, in the culture of the Division. I
think it is restored, you know to----
Mr. Nadler. And these changes to restore de-politicized
hiring have been made under the leadership of Assistant
Attorney General Perez?
Mr. Bagenstos. Under the leadership of Assistant Attorney
General Perez. He issued the policy, absolutely.
Mr. Nadler. Thank you. You know, many inflammatory claims
have been made about the findings of the recent Office of
Inspector General report. Would you help us clear up the record
on this, please? Specifically, was there any finding in the
report of selective enforcement of the law by this
Administration?
Mr. Bagenstos. No, there was not.
Mr. Nadler. Was there any finding in the report that this
Administration's hiring or personnel practices improperly
considered the political or ideological views of applicants?
Mr. Bagenstos. No. In fact, the IG found to the contrary.
Mr. Nadler. Was there any findings in this report, in the
OIG report, that this Administration's handling of FOCA
requests--I am sorry, Freedom of Information Act requests
favored liberal groups or interests?
Mr. Bagenstos. No. The IG found that when they were asked
to respond to requests or requests for pending Section 5
submissions, regardless of who sent them, they got filled
quickly, and other requests did not get filled quickly.
Mr. Nadler. And it is true that we know from the Office of
Professional Responsibility report, and from this OIG report,
and the prior OIG report, is it not, that all these things were
going on during the period of 2003 to 2007 during the prior
Administration when Mr. von Spakovsky and Mr. Adams were in the
Department?
Mr. Bagenstos. Well, certainly as to the politicized hiring
and the politicized culture within the Division, absolutely.
Mr. Nadler. Thank you. I would simply comment then that the
credibility of Mr. von Spakovsky and Mr. Adams, anything they
testify here lacks any credibility.
Now, Mr. von Spakovsky, the Inspector General finds the
disclosure of confidential or deliberative information for
publication by a third party has ``contributed to partisan
rancor within the Voting Section.'' That is on page 135. The
two recent examples given by the IG involved internal
information related to the two of you--that is, to Mr. von
Spakovsky and Mr. Adams--and then posted by you on the Internet
in 2011 and 2012. That is, footnotes 117 and 118 on page 136 of
the report.
Do you agree that the employees leaking internal
information to you should be investigated, Mr. von Spakovsky?
Mr. von Spakovsky. When they are providing evidence of
wrongdoing and they can get no responses from people above
them, in fact, they will be harassed and bullied and
intimidated for calling attention to things that are being done
wrong----
Mr. Nadler. So it is your----
Mr. von Spakovsky [continuing]. No, I do not think so. I
think they should be recognized as whistleblowers who are
trying to right wrongs.
Mr. Nadler. So people who leak internal information to
motivate--I will not say motivated--outside individuals should
not be disciplined, but they should praised.
Mr. von Spakovsky. No, that is not what I said, Mr. Nadler.
What I said was that given the current attitudes there and the
fact that conservative employees there are marginalized,
harassed, intimidated, when they see wrongdoing, they have no
alternative because they know that their supervisors and other
individuals above them will do nothing about it. And, in fact,
if they become whistleblowers, they will be retaliated against.
And individuals who are trying to draw attention to things
that are unlawful and unethical I do not think should be----
Mr. Nadler. So people who see things that they believe are
unethical or unlawful, instead of reporting them to law
enforcement authorities should report them to you.
Mr. Gowdy. The gentleman's time has expired.
Mr. Gohmert. Mr. Chairman, I have a point of personal
privilege. While Mr. Nadler is still here, he referenced more
than once ill motivation, and it was not clear to me whether he
was imputing ill motivation finally to Mr. Perez or if he was
imputing ill motivation to Members of Congress in violation of
the rules of the House.
Mr. Nadler. Neither. I was imputing ill motivation to Mr.
von Spakovsky and to Mr. Adams.
Mr. Gohmert. Well----
Mr. Gowdy. The gentleman's time has expired.
The Chair would now recognize the gentleman from
California, Mr. Issa.
Mr. Issa. Thank you, Mr. Chairman, and I might note for the
record that without whistleblowers, including the update the
President recently signed, my Committee next door could not
operate. We depend on whistleblowers, and, in fact, Fast and
Furious, Benghazi, the IRS scandal, and right down next door,
the manipulation that went on and what was disclosed when the
Park Service complained they would not have enough money for
toilet paper. All of that was exposed and more by
whistleblowers. So I want to commend whistleblowers. I would
prefer they come to Congress. I would prefer they trust my
Committee. But notwithstanding that, if it is the New York
Times they feel they have to go to, then I will read the New
York Times.
With that, I would like to read an older quote for a moment
to begin my questioning. Congressman Davy Crockett famously in
1835, when speaking and coining the phrase, ``log rolling,''
``My people don't like me to log roll in their business. To
vote away their preemption rights to fellows in other States
that never kindle the fire in their own land.'' He was talking
about Congress doing quid pro quo, to use a different term.
Mr. von Spakovsky, in the case of Mr. Perez and his going
to St. Paul and trading away $200 million of taxpayer potential
money, and in return for dismissing effectively or killing a
Supreme Court case, one that might have been decided in a way
he did not like, was he not, in fact, log rolling through his
administrative power?
Mr. von Spakovsky. I think he was, and I think it was
another example of, frankly, something that Mr. Adams and I saw
a lot, and that is the inability of individuals going to work
in the Civil Rights Division, particularly individuals from
liberal advocacy organizations, being able to make the
transition to being a government lawyer and understanding that
their clients were now the American public and the American
taxpayer.
Instead, many of them go to work for the Civil Rights
Division and continue to push and advocate the same kind of
policies and legal positions that they did at those
organizations, and they do not make the transition. I think it
is an example of that.
Mr. Issa. Now, the same court, the exact same court, that
decided Obamacare would have decided this civil rights question
on behalf of people who felt that poor people in a city who
felt that they should have better solutions than the status quo
of calculation. Do you trust that Supreme Court?
Mr. von Spakovsky. Well, I do, and it is very clear that
this whole deal was done because Mr. Perez believed that the
Supreme Court, and a lot of commentators agreed, was going to
toss out these legal theories that were being used. And it is
important to remember the whole issue here was over a city
falsely certifying that it was going to use millions of dollars
to help low income individuals, and they falsely certified to
doing that.
Mr. Issa. So I think one of the more important questions
that I need to get answered is, if you, in fact, bribe a city
into dropping a case in return for dropping another case, or
log rolling, to use Davy Crockett, because quid pro quo sounds
way too highfalutin, and I think the gentleman from Tennessee
would be more appropriate to quote. If, in fact, that were to
continue, would we not basically have any number of things? I
will give you a new courthouse in your district. I will bring
stimulus funds. Would there not be almost limitless things the
executive branch could do in return for having the Court not
see cases they did not want, and see cases they wanted?
Mr. von Spakovsky. Yeah, I think that would be the start of
a long trend of doing that.
Mr. Issa. And is not the fact that that case is now
basically dead, does that not mean that we have an
inconsistency? We have one part of the country, one circuit,
that has one rule and others that may have another? In other
words, the lack of a clear decision could be years before we
have one law of the land?
Mr. von Spakovsky. That is true. And one of the worst
things that all lawyers will tell you is to have inconsistent
views and opinions from different courts in the country.
Mr. Issa. Now, from the IG report, and Mr. Nadler mentioned
the OIG and the other case. But I just want you to help me with
something that was said in the OIG report, and I will quote it.
This is as to Thomas Perez. ``Nevertheless, we found that
Perez's testimony did not reflect the entire story regarding
the involvement of political appointees in MBPP decision
making.'' And then they again say, ``We believe that Perez
should have sought more details from King and Rosenbaum about
the nature and extent of participation of political
appointees,'' et cetera.
Now, you are more technical than I am. Would you say that
that is not a lie, but it is not the whole truth?
Mr. von Spakovsky. What I would say about that is my job as
counsel to the Assistant Attorney General previously was to
help prepare my boss, people like Mr. Perez, for testimony
before hearings like this and before the Commission. We would
have briefed him on every aspect of that case and gotten all of
the information necessary to answer every question,
particularly a question like that, which Perez told the IG he
anticipated the question.
Mr. Issa. So what you are saying is he did not tell the
whole truth, and that was part of what he was sworn to do.
Mr. von Spakovsky. I believe that is correct.
Mr. Issa. Thank you, Mr. Chairman. I yield back.
Mr. Gowdy. I thank the gentleman from California.
The Chair would now recognize the gentlelady from Texas,
Ms. Jackson Lee.
Ms. Jackson Lee. Let me thank the Chair very much, and I
want to thank Mr. Conyers for refreshing our memory on one of
the most hope springs eternal moments of this Congress and this
Committee, which was the reauthorization in 2006-2007 led by
Mr. Sensenbrenner and many of our colleagues here. And I want
to thank them for the reauthorization of Section 5 of the
Voting Rights Act and thank you for your historical perspective
as well. And I know that the witnesses here would agree with me
that the legislation lives and provides vitality to democracy.
I would only offer a caveat and suggest that the hearing
should be renamed to ``We Lost the Presidency, and Mr. Tom
Perez is at fault,'' because I see no reason for this hearing.
I respect my colleagues. But let me just put on the record that
the Office of Professional Responsibility as it relates to the
New Black Panther Party did confirm that no mishandling
occurred, no professional misconduct, no exercise of poor
judgment. And Mr. Tom Perez was not even at the Department of
Justice, to my knowledge.
I note that in the earlier comments, some individuals were
quoted as indicating that someone was booing at a Member of
Congress, and as well that someone mentioned something about a
noose. I would ask, as my good friend who is not here, that
that individual go immediately and become a whistleblower. To
my knowledge, it was Facebook, and I would hope because of the
whistleblower protection, let me very clear to all of those who
worked hard to cover under the whistleblower protection, that
would have been the appropriate vehicle in which to be able to
deal with.
But let me show what Tom Perez did to uphold democracy,
because this is a map of shame that shows the variety of voter
suppression laws across America. If we had not had a diligent
Justice Department led by Tom Perez, then people who wanted to
vote, no matter where they came from, would not have had the
opportunity to vote.
The Voting Rights Act protects all people. Texas, which
passed the strictest voter ID law in 2011 fortunately was
turned back because of the Department of Justice, and people
were able to vote. If you are not familiar with Texas, you will
note Romney won the State of Texas. States like Florida that
had enormous voter suppression that occurred, the Justice
Department intervened. Ohio that had voter suppression,
fortunately they turned it back.
Voter suppression is not democratic, and I am not
understanding why we are here trying to malign a gentleman who
worked vigorously to enhance the opportunity for all Americans
to vote. So let me proceed with some questioning for Mr. von
Spakovsky.
Mr. von Spakovsky, do you know perjury is? Can you explain
that to me?
Mr. von Spakovsky. Well, any lawyer will tell you perjury
is lying under oath.
Ms. Jackson Lee. So let me recount for you, and I am not
going to challenge your interpretation. But in your July 2008
testimony before the House Judiciary Committee, July 2009
testimony before the U.S. Civil Rights Commission, March 2010
testimony before the House Judiciary Committee, and your
September 2011 before the Senate Judiciary Committee, you
praised the work of the Department during your tenure and
consistently cite the positive cases, actions, and the
environment fostered at the Department during that time.
At the time of your testimony in the aforementioned
Committee and commissions, did you believe your perception and
depiction of the Department's culture and work to be true at
that time?
Mr. von Spakovsky. I am sorry. I did not quite understand
your question.
Ms. Jackson Lee. In all of your testimonies that I gave--
'09, '08, 2010, and 2011, do you believe your perception and
depiction of the Department's culture and work to be true at
that time, what you said?
Mr. von Spakovsky. I would stand behind any testimony----
Ms. Jackson Lee. You are saying yes. Were you aware of any
illegal hiring practices at the Department at that time? Yes or
no?
Mr. von Spakovsky. I was not aware.
Ms. Jackson Lee. Yes or no, sir.
Mr. von Spakovsky. There was absolutely no prosecution or--
--
Ms. Jackson Lee. There was confusion----
Mr. von Spakovsky. There was no prosecution of any case by
the United States Attorney's Office. They did not believe that
any law had been violated.
Ms. Jackson Lee. Were you aware of any harassment or
misconduct within the Division at that time?
Mr. von Spakovsky. I am sorry, what?
Ms. Jackson Lee. Were you aware of any harassment or
misconduct within the Division at that time against career
attorneys?
Mr. von Spakovsky. There has been harassment from the first
day I went to work there, including of me.
Ms. Jackson Lee. Yes. And the OIG recently found otherwise
and characterized division at the time that you were in that
were in crisis during the time that you were there. I think it
is somewhat questionable to come before this panel when charges
have been made during your tenure, and when Mr. Perez has been
proven innocent of the charges you all make. And if it had not
been for his vigorous prosecution of the Voting Rights Act, the
legal Voting Rights Act of 1965, Section 5, that none of us
would have had a fair and honest election in 2012. Do you admit
to that, Mr. von Spakovsky?
Mr. von Spakovsky. I completely disagree. I disagree with
that.
Ms. Jackson Lee. Do you admit to that, sir?
Mr. von Spakovsky. I disagree with your assessment of that
and the way Mr. Perez has conducted himself. Perhaps you could
explain----
Ms. Jackson Lee. And there may be those who disagree with
how you handled yourself.
Mr. von Spakovsky. Perhaps you can explain, Ms. Lee, why it
is that--I recall getting criticism from Members of this
Committee during the Bush administration that we supposedly had
not filed enough Section 2 lawsuits. If you look on page 44 of
this, you will find that there were 18 lawsuits filed under
Section 2 during the Bush administration. If you look on the
same IG report, you will find that this Administration has one
case, one case that the investigation was started during the
Bush administration, and that Section 2 was filed by Mr. Adams.
There has not been a single Section 2 lawsuit----
Ms. Jackson Lee. It may be that the----
Mr. Gowdy. The gentlelady's time has expired.
Ms. Jackson Lee. It may be that the time was used up by
voter oppression. And I thank the Chairman for his time.
Mr. Gowdy. The gentlelady's time has expired.
Ms. Jackson Lee. I yield back.
Mr. Gowdy. The Chair will now recognize himself. I want to
see if I can settle some facts. I had hoped to settle the facts
with the witnesses, no offense intended to any of the four of
you. But you were not the witnesses I wanted to settle these
facts with. I wanted to ask the Department of Justice, but they
are not here, so this is going to be a challenge, but I will
see if I can work my way through it.
South Carolina passed a voter ID law in 2011, May of 2011.
And in 2011, one-third of South Carolina's congressional
delegation was African-American. I may be mistaken. I suspect
that South Carolina's percentage of African-American Members of
Congress may have been the highest in the country in 2011. And
as we now know, one of two African-American United States
senators is from South Carolina in the person of my friend, Tim
Scott.
In addition, South Carolina's governor is of Indian
descent. Further to the same, South Carolina's voter ID law was
similar, if not less, restrictive than those Department of
Justice had pre-cleared in New Hampshire, Virginia, and
Georgia. And moreover, South Carolina's plan was similar, if
not less, restrictive to plans approved outside of Department
of Justice preclearance in States like Tennessee, Kansas,
Indian, which incidentally was affirmed by the United States
Supreme Court, Idaho, South Dakota, and Michigan.
And just to be clear, South Carolina's voter ID law allowed
for the casting of provisional ballots where the voter did not
have one of the forms of accepted identification. Now, that is
withstanding the fact that South Carolina's new voter ID law
made it easier to obtain one of those forms of identification,
allowed for the casting of provisional ballots.
So, Professor, in your testimony, you had mentioned the
significance of having career prosecutors to make these
decisions. Did I understand your testimony correctly?
Mr. Bagenstos. Yes, absolutely.
Mr. Gowdy. Would you be interested to know whether or not
the leadership of the Department of Justice ignored the opinion
of these career prosecutors whose opinion you value so highly?
Mr. Bagenstos. What I would want to know----
Mr. Gowdy. I want to know whether or not you--I want you to
answer my question before you answer the one you want to
answer, okay? Answer my question, and it is this: would you be
interested in knowing whether or not leadership in the
Department of Justice ignored the advice of career Department
of Justice attorneys?
Mr. Bagenstos. Of course, but ignoring and disagreeing are
not the same thing. I do not know what happened in that case.
Mr. Gowdy. Exactly, and we do not either. You know why?
Because they will not tell us. They have ignored Senator
Graham's letter. So I am asking you, will you join Senator
Graham and me in asking the Department of Justice whether or
not they ignored advice from career attorneys to pre-clear
South Carolina's plan? Will you join us?
Mr. Bagenstos. No. I think the deliberative process within
the Department is incredibly important. You cannot get candid--
--
Mr. Gowdy. Is that a yes? Will you join us today?
Mr. Bagenstos. No, congressman. You cannot get candid views
from career staff if they know----
Mr. Gowdy. Are you interested in whether or not those
candid views were ignored?
Mr. Bagenstos. You know, as a citizen I would be interested
whether they were ignored. But ignore and----
Mr. Gowdy. As a citizen? How about as a law professor?
Mr. Bagenstos. Yeah.
Mr. Gowdy. Would you be interested in whether or not sound
legal advice was ignored for political expediency? Would you be
interested in that?
Mr. Bagenstos. Sure, but I think the proof in the pudding
in this case is precisely in the opinion of the District Court,
which I referred to----
Mr. Gowdy. Oh, I have read the opinion. And by the way, who
won?
Mr. Bagenstos. And by the way it was a----
Mr. Gowdy. Who won?
Mr. Bagenstos [continuing]. Decision, by the way.
Mr. Gowdy. South Carolina won.
Mr. Bagenstos. By the way----
Mr. Gowdy. And here is the difference. I am going to
reclaim my time. Here is the difference. There was a 1.6
percent difference in African-Americans who had accepted photo
IDs and White South Carolinians, 1.6 percent difference. Twenty
years ago when I was working on voting rights cases, that was
considered the minimus. Now it costs South Carolina $3.5
million to defend that 1.6 percent difference.
But it also means this: that my fellow South Carolinians
who are African-American are 1.6 percent less likely, less
able, to enter a Federal courthouse because an ID is required
there also. And they are 1.6 percent less likely to be able to
board an aircraft because it also requires a photo ID. They are
1.6 percent less likely to enter the front door of this
building because it also requires a voter ID.
So my time is up. I would simply say this to the men and
women who have dedicated their careers at the Department of
Justice to the apolitical, nonpartisan enforcement of the law,
I am sorry that we are having to have this hearing. And I am
also sorry to the State of South Carolina that it had to spend
$3.5 million to have a district court, ultimately a three-judge
panel, ultimately agree with us. And I am sorry for the
Department of Justice that they put politics ahead of the law.
And with that, I would recognize the gentlelady from
California, Ms. Chu.
Ms. Chu. I am one who feels very strongly about the Voting
Rights Act, in particular, the aspects that protect language
minority groups. And so, Mr. Bagenstos, we still continue to
have examples of those who experience problems. For example, in
2010, we learned that poll sites in Queens, New York did not
have translators for Korean and Chinese voters, even though
languages are indeed covered by the Voting Rights Act, Section
203. And some sites were prohibiting limited English proficient
voters from getting the assistance of a person of their choice
in the voting booth as would be required by Section 208.
As you know, the Voting Rights Act was specifically
designed to protect citizens who are members of language
minority groups from being excluded from the voting process and
to ensure that they can receive the language assistance that
they need to cast an effective vote.
So let me ask: during and after your tenure, what progress
and specific actions has the Civil Rights Division taken to
enforce Section 203 and 208 of the Voting Rights Act, and to
protect the voting rights of language minority groups more
broadly?
Mr. Bagenstos. Well, obviously the Division has brought a
whole series of cases in the last 4 years to enforce Sections
203 and 208 and the language minority provisions generally of
the statute. It is a very important area.
You know, after the 2010 census, there was a new set of
jurisdictions that were certified for coverage under Section
203 of the statute because that is now the statute works. It is
based on census data. And actually, as detailed in the OIG
report, it is clear that Tom Perez and the Department of
Justice Civil Rights Division responded immediately to first
try outreach with jurisdictions that were newly covered because
litigation is not the first response. Better to try to get
voluntary compliance with the law. But we also saw a
substantial effort to enforce these laws, both with respect to
language minority voters, with respect to Asian languages, but
also the first new case on behalf of Native Americans since
1998. So a very substantial push in this area.
Now, I will say, I do want to be here and say nothing that
happened in any previous Administration was positive by any
means. I think the language minority provisions of the statute
were enforced in the previous Administration, and this
Administration has continued to enforce them. But I think there
has been a substantial uptick in voting rights enforcement
generally.
Ms. Chu. Thank you. Let me ask, Mr. Bagenstos, about the
Inspector General's report. From 2003 to 2007, the Office of
the IG concluded that the polarization and suspicion in the
Voting Section became particular acute as political appointees
illegally recruited new attorneys into the Voting Section and
other parts of the Division based on their conservative
affiliations. Appointees regularly considered political and
ideological affiliations in their personnel actions.
What was the impact on the Department's expertise and
capabilities and on the remaining career attorneys' morale when
you came on in 2009?
Mr. Bagenstos. It was dreadful. It was absolutely dreadful.
I mean, I have often described my first 6 months on the job as
Deputy Assistant Attorney General at the time as basically
conducting grief counseling. I mean, it was a place where the
career staff was completely demoralized. There had been very
substantial turnover. Many of the people who had left, not
surprisingly, are people who were outstanding attorneys, who
had very good options, so they were the people who we would
rely on to lead very significant litigations if we were to try
to ramp up enforcement efforts. We had to figure out how to
kind of rebuild what was there. It was a place that was in
complete disarray and complete demoralization.
Ms. Chu. And so, then Assistant AG Perez came in. And what
was his attitude toward these improper hiring practices? How
did he reform the hiring practices of that section and the
Civil Rights Division as a whole? And in your personal view,
what is the impact on the Division of these new policies? And
what did the IG's Office conclude in their recent
investigation?
Mr. Bagenstos. So if you look at the IG report, it does
detail what Tom Perez did pretty much right away as soon as he
got in. I mean, he got in in October and had to look at various
proposals to do this. But by the end of 2009, he instituted a
process where career attorneys were in the driver's seat for
hiring. All experienced attorney hiring would be done through
hiring committee staff of career attorneys.
The section chief, also a career employee, would make a
recommendation to the Assistant Attorney General for hiring. If
the Assistant Attorney General was to disagree with that
recommendation, the Assistant Attorney General would have to do
that in writing to promote transparency and to promote this
culture of accountability. And the IG found that the nine
attorneys hired in the Voting Section under that policy were
outstanding in their qualifications and in their voting rights
experience.
Ms. Chu. Thank you. I yield back.
Mr. Gowdy. I thank the gentlelady.
The Chair would recognize the gentleman from Arizona, Mr.
Franks.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. von Spakovsky, in your written statement, you described
the Division's legal arguments in the 2012 Hosanna-Tabor
Supreme Court case as representing a ``war on religious
freedom, completely at odds with the Division's prior history
of protecting religious freedom.'' You also state that Mr.
Perez signed a brief to the United States Supreme Court that
claimed ``such an extreme position, that all nine justices of
the Supreme Court disagreed.'' I mean, nine justices, nine to
zero. I am not sure in today's environment of judicial activism
that we could get nine justices to all agree that two and two
still equal four, so it is a pretty profound decision.
Can you put some context on this and tell us why this
Division, whose purpose it is to protect religious freedom,
seemed in this case committed to turning it on its end and
wiping away not only hundreds of years of history, but
vaporizing the First Amendment in the process?
Mr. von Spakovsky. Well, what was amazing about that case
was that they basically tried to tell the Supreme Court that
there should be no ministerial exemption. In other words,
churches should not have the ability to impose their religious
beliefs when they are hiring ministers, and lay ministers, and
things like that.
And that position was so at odds with the First Amendment.
They were basically saying that churches should not have any
more associational rights than a private club. And the Supreme
Court said, you know, nine justices. And, in fact, Elena Kagan,
the former Solicitor General for this Administration, joined
with Justice Alito in a concurring opinion because the Court
just could not believe, and it is very clear from the language,
they could not believe that the Justice Department was pushing
this kind of a view.
Mr. Franks. Well, I mean, I do sometimes think we get so
impractical in these areas, under that reasoning of that brief,
it would occur to me that as a Baptist, I could hold myself
electable to papacy because I felt better qualified somehow
than the pope. And I just find it hysterical. I mean, next we
will have, you know, some bill here that suggests that Russian
citizens should be able to vote in American elections. So, I
mean, I do not know where this thing goes.
Mr. Mihet, in your written testimony, you provided an email
dated November 5th of 2009. And incidentally, your story, sir,
compels all of us greatly. But this was a Civil Rights Division
attorney that wrote the email to an employee of the
Presidential Women's Center, which, in part, states, ``On
Saturday, we had planned to observe the protestors. Usually we
just hang outside the clinic and observe as well as chat with
the escorts. We had planned to leave on Saturday afternoon.''
Now, can you elaborate again, put some context in this
situation? Elaborate on the Civil Rights Division's presence in
West Palm Beach. And do you think that the proponents of
abortion who claimed that you got lucky in this case with the
judge who is himself an ideologue, of course, and that the
outcome would have been different in any other court? Can you
put that in context and help us understand that?
Mr. Mihet. Yes. The written documentation we obtained in
discovery revealed a very sinister plan that began way before
the lawsuit was actually filed against Susan in which the
Department of Justice planned an elaborate trap against Susan
and others of her pro-life friends. The email showed that they
were on a first name basis with the clinic staff, Mona and
Julie, and they were making all these plans. And multiple DoJ
lawyers were flying from Washington, D.C. to Florida. Now,
perhaps the weather differential in February might account for
some of that eagerness to travel to Florida on taxpayer
dollars. But that fact was easily lost upon Susan, who all of a
sudden is being prosecuted by the most powerful government on
earth.
As to your second question, if you read Judge Ryskamp's
opinion, which has been provided in the written submission, it
is well reasoned and supported by the law. He exercised
remarkable restraint in the face of what he clearly understood
to be frivolous and outrageous conduct. Any other judge
faithful to the Constitution would have reached the same
result. How do we know that? The DoJ could have appealed that
decision if they disagreed with it. In fact, Professor
Bagenstos was an attorney at the DoJ at that time, perhaps the
only attorney who managed not to have his name on the pleadings
in this particular case. But he was in charge of the Appellate
Division. If they thought the judge was off base, they could
have appealed the decision. They chose not to. They quietly
paid the significant attorney fee sanctions out of the public
treasury, and then moved on to their next target.
Mr. Franks. Thank you, folks. And thank you, Mr. Chairman.
Mr. Gowdy. I thank the gentleman from Arizona.
Mr. Conyers. Mr. Chairman?
Mr. Gowdy. Before we go to my friend, the gentleman from
Louisiana, I wanted to recognize the gentleman from Michigan.
Mr. Conyers. Thank you, sir. I would like to ask unanimous
consent to enter into the record the letter from Wade
Henderson, who heads the Leadership Conference on Civil and
Human Rights, as well as the letter from Joe Rich, the chief of
the Voting Section from 1999 to 2005, a letter sent to the
Honorable Dianne Feinstein and the Honorable Bob Bennett.
Mr. Gowdy. Without objection, it will be made part of the
record.
[The information referred to follows:]
__________
__________
__________
Mr. Conyers. Thank you.
Mr. Gowdy. I think the gentlelady from Texas had a quick
document submission as well?
Ms. Jackson Lee. Thank you, Mr. Chairman. I ask unanimous
consent to put the submission of the testimony of the Lawyers
Committee for Civil Rights Under Law, submitted to this
Committee on April 16, 2013. I ask unanimous consent.
And I ask unanimous consent to put in from the Lawyers
Committee on Civil Rights the Map of Shame on voter suppression
legislation by State.
Mr. Gowdy. Well, is it entitled the ``Map of Shame,''
because I see my State highlighted on it. If that is the title
of it, then that is fine. But if that is your editorializing
what the document means, then we will just put the document in.
Ms. Jackson Lee. Sir, I would never editorialize on a
document, and it is not from me. It is from the Lawyers
Committee on Civil Rights. I ask unanimous consent to put it in
the record.
Mr. Gowdy. Without objection.
[The information referred to follows:]
__________
__________
Mr. Gowdy. I will now recognize the gentleman from
Louisiana, Mr. Richmond.
Mr. Gohmert. Mr. Chairman, if the Civil Rights Division is
editorializing by denoting that a State, which has clearly been
found not to be discriminatory by the courts, is part of a Map
of Shame, then I would submit--first I thought I would object,
but then I would submit that is evidence of outright bigotry by
this Justice Department. So I will not object.
Mr. Gowdy. I thank the gentleman from Texas.
And I will now recognize the gentleman from Louisiana and
thank him for his patience.
Mr. Richmond. Thank you, Mr. Chairman. [Laughter.]
Mr. Gowdy. We are going to restart the clock for the
gentleman from Louisiana so he does not lose any time.
Mr. Richmond. Thank you, Mr. Chairman. And to the Ranking
Member, who commented last week, and I think we both commented
on the titles of the hearings in this Committee. I was excited
when I saw the mild title of this one and thought we were
actually having a hearing, and then I had a chance to read the
report, which is the ``Department of Justice's Quid Pro Quo
with St. Paul: How Assistant Attorney General Thomas Perez
Manipulated Justice and Ignored the Rule of Law,'' which is
right in line with other outrageous titles of hearings.
It begs the question to me whether we are in search,
whether we are trying to solve problems, or is this a race to
be obstructionist in chief. And as I think about what we are
trying to accomplish and if we are trying to accomplish
anything, I can only think back to the last hearings. We had
the REINS Act, which is Regulations From the Executive In Need
of Review, where Congress wanted to approve every rule that the
President wanted to promulgate.
So last week, we wanted to be president. This week we want
to be the U.S. Senate and actually have a hearing on Mr. Perez,
who is not here, but we have heard his name a million times in
this Committee. My understanding is this is a Committee in the
House, and we do not have the right to examine Senate
presidential appointees. But nevertheless, we are crossing not
that jurisdictional lines, but, again, we want to be more than
what we are.
So let me just go ahead and ask a few questions, and I will
start with the professor. Let me ask you, are you aware that
the 2009 GAO study conducted by the Civil Rights Division under
the Bush administration, to be specific, are you aware, for
instance, that it indicated that they decreased the number of
Section 5 investigations, even though the number of submissions
from States did not decrease?
Mr. Bagenstos. I certainly generally read that report
before I took my job, you know, a few years ago.
Mr. Richmond. Did you remember or can you recall the part
of the report that found that in various cases, career staff
attorneys would recommend going forward with an investigation.
However, political appointees would choose that these matters,
would close those matters without any explanation?
Mr. Bagenstos. Yes, and that was a substantial problem. I
mean, that was the lack of transparency and respect for the
career staff precisely there.
Mr. Richmond. Did you also know that they would stop
communications with the States in those case, which ended the
paper trail on their deliberation and further explanation of
why they made their decision?
Mr. Bagenstos. You are getting beyond my knowledge on that.
But if the GAO said it, I trust that the GAO said it.
Mr. Richmond. How far of a departure from the standard
procedure do you think that eliminating the paper trail
creates?
Mr. Bagenstos. So, I mean, when we are talking about
negotiations, I just want to understand what context we are
talking about. We are talking about the Section 5 submission
made to the Justice Department. And, you know, usually what
happens in the context of a Section 5 submission made to the
Justice Department, is the jurisdiction is required to submit
all the information necessary to consider whether the voting
change is discriminatory in purpose or effect.
That information is supposed to go to the Justice
Department both for its consideration and, as something we
learned from the IG's report most recently, and so it can be
released to interested parties, who have an interest in
commenting on the submission. And so, if the information is not
provided in a way that it can be released to interested parties
in that context, then you have a serious problem with the
Section 5 procedure, if that is what you are talking about.
Mr. Richmond. Mr. Mihet, you spoke about the case you all
were involved in, and you said that it was government actors,
they lost evidence, they did not have the license plate. The
police officer was the only witness. As a defense attorney, I
want you to know that that is not that far from the norm of
many cases that I seek. Is this the only case that you all have
ever initiated that there was only a police witness and not
much further evidence?
Mr. Mihet. This was the only case where the one eyewitness
put forth by the plaintiff, the DoJ in this case, came back and
actually refuted the very claim that the DoJ was making. Here
they said that Susan ``stopped and stood in front of a
vehicle.'' This one and only eyewitness comes and testifies
that, no, she immediately moved out of its way.
Mr. Richmond. In all of your practice of law, is this the
first time that you have seen that happen?
Mr. Mihet. In all of my practice of law, I have never seen
the kind of politically motivated conduct that I have seen in
this case from any plaintiff, let alone a government.
Mr. Richmond. We were just talking about a witness
contradicting the report of themselves.
Mr. Mihet. Well, what is interesting here is that both the
police officer and the DoJ admitted on the record----
Mr. Richmond. Is it the first time you have seen a witness
contradict the prosecution in all of your practice of law? It
is very simple.
Mr. Mihet. It is my first time that I have seen it to this
extent. No one disputed that this police officer and the DoJ
had conferred before the lawsuit was filed. We have the
documents going back and forth between them. There was no
reason for them to misunderstand each other what I submit to
you happened.
Mr. Richmond. I will take you at your word. In your vast
experience, this is the first time you have seen a witness
contradict the prosecution.
I yield back.
Mr. Mihet. To this extent.
Mr. Gowdy. I thank the gentleman from Louisiana.
The Chair would now recognize the gentleman from Texas,
Judge Poe.
Mr. Poe. Thank you, Mr. Chairman. A lot has been said about
Tom Perez and his reign in the Justice Department and what he
has done or not done. It is my understanding he was invited to
be here to talk about what he has done or not done, and he
willfully chose not to be here. Is that correct, Mr. Chairman?
Mr. Perez was invited, and he is not here?
Mr. Gowdy. Judge Poe, my information is that he was
invited. In the interest of full disclose to the court so I do
not get myself in trouble, I think that there was some effort
to arrange a date, but he is pretty occupied with the
confirmation. And not only was he invited, I think the DoJ was
given an opportunity to send another witness, and they did not
avail themselves of that opportunity either.
Mr. Poe. Thank you. When a person goes to vote, if someone
is cheating and should not be voting, it disenfranchises the
lawful voter. That is the way I see our system. Cheats hurt the
right and the power of the vote of one person, one vote because
it is diminished to some extent. Some States have passed voter
ID laws. The Supreme Court has ruled on Indiana's voter ID law.
I will ask the professor, do you agree with the Supreme
Court's decision in the Indiana case where they uphold their
voter ID laws? It is either a yes or it is a no.
Mr. Bagenstos. Well, it is a complicated----
Mr. Poe. It is a either a, yes, you agree or it is a no,
and I do not want to hear your answer that wants to explain it
because I am not asking you to explain the answer. Either you
agree with the Supreme Court or you disagree. Which is it? Pick
a horse and ride it.
Mr. Bagenstos. I do not have a problem with them upholding
the voter ID law against the claim that was asserted against
them there. I do think there are certain statements in----
Mr. Poe. So you agree with the Supreme Court decision in
that Indiana case under the circumstances.
Mr. Bagenstos. I agree with the bottom line. There are
parts of the opinion----
Mr. Poe. Thank you, Professor. It is not that complicated.
It is not a trick question.
Mr. Bagenstos. Well, I am a professor. It is always
complicated.
Mr. Poe. I want to call you that because they claim you are
the professor, and I do not have a problem with that. So
anyway, it is either yes or no. Pick a horse and ride it. It is
probably a yes in your circumstances.
Texas has a similar voter ID law that the Justice
Department, after the Supreme Court decision, chose to make
sure that law was not implemented for last year's election.
Now, I personally think voter ID laws are probably a good idea.
We will see what the Supreme Court does in this case.
I want to ask the other members as well. Do you believe the
Department of Justice in its litigation, and its philosophy,
and its procedure applies our voter rights laws equally across
the board to all citizens. Once again, it is either a yes or it
is a no. I will start with Mr. Adams and go down the row.
Mr. Adams. No.
Mr. Poe. Professor?
Mr. Bagenstos. Yes.
Mr. Mihet. No.
Mr. Poe. It is a no. Mr. von Spakovsky?
Mr. von Spakovsky. No.
Mr. Poe. All right. Do you believe that if the three of you
who think it is now not applied equally, do you think that is a
violation of the Equal Protection clause of the 14th Amendment,
yes or no?
Mr. Adams. No.
Mr. Bagenstos. I thought you were skipping me.
Mr. Poe. Yes. We are just getting the yesses. Yes, that
answered yes.
Mr. Mihet. Yes.
Mr. von Spakovsky. I am frankly not sure on that one.
Mr. Poe. All right. I will take that as an answer. Let me
ask you this. Do you you believe that the Justice Department's
Civil Rights Division has a bias against voter integrity groups
that are of a conservative persuasion? In other words, if you
are a conservative group and you are trying to promote
integrity, hypothetically, you are looked at with intimidation
as opposed to some other group? I mean, is that a fair
statement or not? Mr. Adams, you may answer that question and
explain it if you want to.
Mr. Adams. We know the answer is yes based on the
depositions that the Justice Department conducted in the State
of Texas regarding the voter ID case where attorneys for the
Department made inquiry of, for example, Patricia Harless, your
State sponsor of the voter ID law there, about which
conservative groups she was talking, whether or not she met
with True the Vote, in full disclosure, one of my clients. And
so there was an inquiry in discovery as to the extent of
conservative groups' involvement in the passage of the voter ID
law. That is a fact.
Mr. Poe. Mr. von Spakovsky, you may answer that, too, if
you want.
Mr. von Spakovsky. Well, I agree with Mr. Adams.
Mr. Poe. All right. I see that my time has expired. I will
yield back to the Chair.
Mr. Gowdy. I thank the gentleman from Texas. Thank you,
Judge Poe.
The Chair would now recognize the gentleman from Florida,
Mr. Garcia.
Mr. Garcia. Thank you, Mr. Chairman.
I find myself at a great disadvantage with the other
Members here today since I have known Tom Perez for many years,
and I find him to be an excellent representative of a public
servant, and someone who is committed to doing justice.
Clearly, his tenure at the Department of Justice is something
we should all be proud of.
But nonetheless, this morning when I woke up, I realized
that I had been promoted to the rank of United States senator
since we are engaging in a confirmation process. And thereby,
since the judge engaged in questioning the panel, let us
question the panel.
According to the Constitution, does the House of
Representatives have a role to play in the confirmation of a
nominee? We will start from left to right, and you can answer.
Mr. von Spakovsky. I certainly think in its oversight
role----
Mr. Garcia. I would like a yes or a no answer like the
judge has provided. According to the Constitution of the United
States, does the House of Representatives have the same
confirmation responsibilities as the United States Senate?
Mr. von Spakovsky. No.
Mr. Mihet. Not the same, but a----
Mr. Garcia. I would like a yes or no answer just as was
given to the judge.
Mr. Mihet. Not the same, but a different function, yes.
Mr. Garcia. Thank you. I will take as a no since the judge
is allowed to interpret the question.
Mr. Mihet. That is not what I testified.
Mr. Bagenstos. The advice and consent power is to the
Senate.
Mr. Garcia. Thank you.
Mr. Adams. No.
Mr. Garcia. Great. Thank you, gentleman. That is all I
have.
Thank you, Mr. Chairman.
Mr. Gowdy. Thank the gentleman from Florida.
The Chair would now recognize the gentleman from Texas,
Judge Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman, and thank you to the
witnesses for being here.
There has been discussion already obviously about Mr.
Perez's prior testimony on different issues. And obviously the
U.S. Commission on Civil Rights decided that Assistant Attorney
General Thomas Perez testified that political appointees in the
Department were not involved in the New Black Panther case. And
they found, and I am quoting from the CCR, ``We found that
Perez's testimony did not reflect the entire story regarding
the involvement of political appointees. In particular, Perez's
characterizations omitted that Assistant Attorney General
Pirelli and Deputy Associate Attorney General Hirsch were
involved in consultations about the decision as shown in
testimony and contemporaneous emails.'' But basically they were
giving him a pass because he at the time he testified did not
know.
Then in 2011, he testified before our Committee, and my
friend, Mr. King, asked him specifically, but the decision to
drop the case against other individuals you testified was made
not by political, but by career employees. And I think the
names were Mr. King and Mr. Rosenbaum. Does that still remain
the case, or would you wish to clarify? He said that decision
was made Mr. King and Steve Rosenbaum, two people who are
career attorneys in the Division with combined experience of 60
years. Anyway, he said, but the question was, it was not
overruled by or influenced unduly by political appointees, and
he answered no.
Mr. Adams, from your own personal experience, after the CCR
investigation had determined that he did not apparently know
the truth at the time he misstated the truth, but by June of
2011, from your own personal experience, do you know if he lied
when he said political appointees did not unduly influence that
decision?
Mr. Adams. Well, he certainly did not tell the truth when
he said he had never heard about this toxic culture against
race neutral enforcement. I can personally testify about that
second point.
As to your specific question, by that time you would have
thought he would have inquired about the Attorney General's
involvement, which is detailed in the IG report, as well as Tom
Pirelli, the Associate Attorney General, specifically denying
them the opportunity to dismiss the entire case. So political
appointees did overrule Rosenbaum and King, and they knew it.
But Perez testified to the contrary.
Mr. Gohmert. So is it a true statement by Mr. Perez, now up
for consent before the Senate, when he said that the decision
not to pursue the New Black Panther case was not overruled by
or influenced unduly by political appointees?
Mr. Adams. Completely inaccurate.
Mr. Gohmert. All right, thank you. Now, there is a new
thing that has arisen in conduct of people who appear to be
violating State law and possibly Federal law with regard to
something people in the media have called flash mobs. Mr.
Adams, are you familiar with the consideration by the Federal
Government to pursue such flash mobs and the civil rights that
might be involved and being violated?
Mr. Adams. Yes.
Mr. Gohmert. Would you tell us about that?
Mr. Adams. What this refers to is racially motivated mob
violence in places like Chicago, also at the Wisconsin State
fair a number of years ago. The issue is whether or not it
violates 18.U.S. 242 and 18 U.S.C. 245, which is to deprive
somebody of their civil rights.
The Justice Department has long had a public streets view
of exercising civil rights. If you are going about your
business, you are exercising your civil rights. These groups
have been attacking people with racial motivation in very
violent fashion, and this Justice Department has done
absolutely nothing about it.
They have brought cases against White wrongdoers or
Hispanic wrongdoers in places like New York, and they should
because we have the right to walk the streets without being
attacked. But those parents who went to the Wisconsin State
fair or those parents who were attacked on their front lawn in
Ohio by racially motivated mobs have had no justice from this
Justice Department.
Mr. Gohmert. Okay.
Mr. Adams. It is time that that stopped.
Mr. Gohmert. Thank you. Well, very quickly, let me ask
about Section 5 of the Voting Rights Act. It seemed to me I
tried to persuade my friend, Mr. Conyers and Mr. Sensenbrenner
that to continue to cram down Section 5 requirements on States
where there was less racial disparity than in the States where
senators and congressmen were voting to force this down the
throats of States who had brought themselves into compliance
with the law was a violation of Equal Protection, and the
continued forcing of this law and these requirements, the
punitive requirements, down the throats of States where the
racial disparity had been cured while States that were cramming
down those throats punitively now, after 40 years, were having
great racial disparity that they are refusing to address, was a
violation of Equal Protection.
And since there is nobody here to object, I would just ask
if each of you would address in your opinion whether you
believe Section 5, as it is today, violates the Constitution's
right of Equal Protection to those States that were in the
minority, and upon whom that was crammed down.
Mr. Gowdy. I have given everybody one extra minute that has
gone over, and Judge Gohmert just hit the 1 minute. If you can
answer with one sentence, then we will allow that to happen.
Mr. Adams. Section 4's triggers are probably outdated, and
I suspect the Supreme Court will find that shortly.
Mr. Bagenstos. I do not agree it is unconstitutional.
Mr. Mihet. I would just defer to Mr. Adams on this.
Mr. von Spakovsky. The extraordinary circumstances which
justified Section 5 in 1965 have long disappeared. It is no
longer constitutional.
Mr. Gohmert. Thank you very much.
Mr. Gowdy. Thank the gentleman from Texas.
On behalf of Chairman Goodlatte and all the Members of the
Judiciary Committee, I want to thank all of our witnesses for
your patience and your comity toward one another with a ``T''
and with the full Committee.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
With that, thank you again on behalf of all of us. And this
hearing is adjourned.
[Whereupon, at 12:16 p.m., the Committee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record