[Congressional Record Volume 155, Number 118 (Friday, July 31, 2009)]
[House]
[Pages H9250-H9252]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 REFILE THE VOTER INTIMIDATION CASE AGAINST THE NEW BLACK PANTHER PARTY

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from Virginia (Mr. Wolf) is recognized for 5 minutes.
  Mr. WOLF. Mr. Speaker, earlier today, I sent a letter to Attorney 
General Eric Holder, which I submit for the Record, imploring him to 
refile the voter intimidation case against the New Black Panther Party 
that was inexplicably dismissed in May.
  This case was brought in January by career attorneys in the 
department's Civil Rights Division against the party and several of its 
members for deploying uniformed men to a polling station in 
Philadelphia on election day last November to harass and intimidate 
voters--one of whom brandished a nightstick to the voters.
  The public can view video of the incident as well as other examples 
of their intimidation in a January 2009 National Geographic Channel 
documentary that is posted on the Web at www.electionjournal.org.

[[Page H9251]]

  One of the witnesses of the election day incident, Bartle Bull--a 
veteran civil rights activist who served as Bobby Kennedy's New York 
campaign manager in 1968--has publicly called this ``the most blatant 
form of voter intimidation'' he has ever seen. He also reminded us that 
Martin Luther King did not die to have people in jackboots with billy 
clubs block doors of polling places. Neither did Robert Kennedy. It's 
an absolute disgrace.
  In 1981, I was the only member of the Virginia delegation in the 
House to vote for the Voting Rights Act, and I was harshly criticized 
by the editorial page of the Richmond Times Dispatch. When I supported 
the act's reauthorization in 2006, I was again criticized by editorial 
pages. My commitment to voting rights is unquestioned.
  Given my consistent support for voting rights, I was deeply troubled 
by a report in yesterday's Washington Times, which I also submit for 
the Record, indicating that improper political influence by Associate 
Attorney General Thomas Perrelli led to the dismissal of this case--
over the objections of justice career attorneys on the trial team.
  I am troubled, but unfortunately not surprised, to learn of the 
existence of this guidance from the chief of the department's Appellate 
Division, which recommended that the department proceed with the case 
and obtain default judgment. Despite a congressionally directed 
request, the guidance was not previously shared with Members of 
Congress.
  According to a summary of the Appellate Division guidance reported in 
The Washington Times, ``Appellate Chief Diana K. Flynn said in a May 13 
memo obtained by The Times that the appropriate action was to pursue 
the default judgment unless the department had evidence the court 
ruling was based on unethical conduct by the government.''
  She goes on to say many other things, which I'll submit for the 
Record, but she ends by saying that the complaint appeared to be 
sufficient to support the injunctions sought by the career employee, 
stating, ``The government's predominant interest is preventing 
intimidation, threats and coercion against voters.''
  Just last week, Eric Holder declared that the department's Civil 
Rights Division is ``back and open for business.'' I question Eric 
Holder's commitment to voting rights, and I question Eric Holder's 
judgment. Yet where are the other Members of this Congress--Republican 
or Democrat--who want to even look at this issue?
  Given that both the department's trial team and the Appellate 
Division argued strongly in favor of proceeding with the case, I can 
only conclude that the decision to overrule the career attorneys, 
Associate Attorney General Thomas Perrelli or other administration 
officials was politically motivated.

                                     House of Representatives,

                                    Washington, DC, July 31, 2009.
     Hon. Eric H. Holder, Jr.,
     Attorney General, Department of Justice,
     Washington, DC.
       Dear Attorney General Holder:  In light of the troubling 
     reports of political influence in the enclosed article from 
     yesterday's Washington Times, as well as the many unanswered 
     questions to members of Congress, I implore you to re-file 
     the voter intimidation case against the New Black Panther 
     Party and other defendants so that impartial judges--not 
     political benefactors--may rule on the merits of this case. 
     Given your declaration on July 22 that the department's Civil 
     Rights Division is ``back and open for business,'' I would 
     urge you to demonstrate your commitment to enforcing the law 
     above political interests by re-filing.
       My commitment to voting rights is unquestioned. In 1981, I 
     was the only member--Republican or Democrat--of the Virginia 
     delegation in the House to vote for the Voting Rights Act and 
     was harshly criticized by the editorial page of the Richmond 
     Times Dispatch, and when I supported the act's 
     reauthorization in 2006, I was again criticized by editorial 
     pages.
       Given my consistent support for voting rights throughout my 
     public service, I hope you can understand why I am 
     particularly troubled by the dismissal of this case. The 
     video evidence of the defendants' behavior on Election Day, 
     as well as a January National Geographic Channel documentary, 
     ``Inside: The New Black Panther Party,'' should leave no 
     question of the defendants' desire to intimidate or incite 
     violence.
       The ramifications of the dismissal of this case were 
     serious and immediate. Defendant Jerry Jackson received a new 
     poll watcher certificate, a copy of which I have enclosed, on 
     May 19, 2009, immediately after the case was dismissed. Mr. 
     Jackson faced no consequences for his blatant intimidation 
     and promptly involved himself in the next election. Is that 
     justice served?
       As you will read in the enclosed memorandum of opinion from 
     the Congressional Research Service's American Law Division, 
     there is no legal impediment that would prevent you from re-
     filing this case. Unlike a criminal case, a civil case 
     seeking an injunction against the other defendants could be 
     brought again at any time. According to the memo provided to 
     me, ``It appears likely that the Double Jeopardy Clause would 
     not bar a subsequent civil action against the [New Black 
     Panther] Party or most of its members,'' and ``second, 
     because the United States voluntarily dismissed its suit 
     against the Party and two of the three individual members 
     before those defendents had filed an answer or motion to 
     dismiss the suit, the previous action had not moved 
     sufficiently beyond preliminary steps so as to implicate the 
     Double Jeopardy Clause.''
       I was surprised to learn from The Washington Times report 
     of the existence of the enclosed correspondence from the 
     chief of the department's Appellate Division recommending 
     that the department proceed with the case and the default 
     judgment. These opinions were never disclosed to me or other 
     members of Congress by the department in its previous 
     responses to questions regarding the dismissal of the case. 
     According to the report:
       ``Appellate Chief Diana K. Flynn said in a May 13 memo 
     obtained by The Times that the appropriate action was to 
     pursue the default judgment unless the department had 
     evidence the court ruling was based on unethical conduct by 
     the government.
       ``She said the complaint was aimed at preventing the 
     `paramilitary style intimidation of voters at polling places 
     elsewhere' and Justice could make a `reasonable argument in 
     favor of default relief against all defendants and probably 
     should.' She noted that the complaint's purpose was to 
     `prevent the paramilitary style intimidation of voters while 
     leaving open `ample opportunity for political expression.'
       ``An accompanying memo by Appellate Section lawyer Marie K. 
     McElderry said the charges not only included bringing the 
     weapon to the polling place, but creating an intimidating 
     atmosphere by the uniforms, the military-type stance and the 
     threatening language used. She said the complaint appeared to 
     be `sufficient to support the injunctions' sought by the 
     career lawyers.
       ``The government's predominant interest is preventing 
     intimidation, threats and coercion against voters or persons 
     urging or aiding persons to vote or attempt to vote, she 
     said.''
       Given that both the department's trial team and the 
     Appellate Division argued strongly in favor of proceeding 
     with the case, I can only conclude that the decision to 
     overrule the career attorneys Associate Attorney General 
     Thomas Perrelli, or other administration officials, was 
     politically motivated. This report further confirms my 
     suspicions that the Department of Justice under your watch is 
     becoming increasingly political.
       It is imperative that we protect all Americans right to 
     vote. This is a sacrosanct and inalienable right of any 
     democracy. The career attorneys and Appellate Division within 
     the department sought to demonstrate the federal government's 
     commitment to protecting this right by vigorously prosecuting 
     any individual or group that seeks to undermine this right. 
     The only legitimate course of action is to allow the trial 
     team to bring the case again and allow the our nation's 
     justice system to work as it was intended--impartially and 
     without bias.
           Sincerely,
                                                    Frank R. Wolf,
     Member of Congress.
                                  ____



                               Congressional Research Service,

                                    Washington, DC, July 30, 2009.

                               Memorandum

     To: Hon. Frank Wolf, Attention: Thomas Culligan.
     From: Anna Henning, Legislative Attorney.
     Subject: Application of the U.S. Constitution's Double 
         Jeopardy Clause to Civil Suits.

       This memorandum responds to your request for an analysis of 
     the application of the Double Jeopardy Clause to successive 
     civil suits in federal courts. In particular, it examines the 
     clause's potential application in the context of a civil suit 
     brought against the New Black Panther Party for Self-Defense 
     or its members, against whom the United States had previously 
     brought an action for injunctive relief. In sum, it appears 
     likely that the Double Jeopardy Clause would not bar a 
     subsequent civil action against the Party or most of its 
     members.


         Double Jeopardy Clause: Application to Civil Penalties

       The Double Jeopardy Clause provides that no ``person 
     [shall] be subject for the same offence to be twice put in 
     jeopardy of life or limb.'' It has been interpreted as 
     prohibiting only successive punishments or prosecutions that 
     are criminal in nature. However, some penalties designated as 
     ``civil'' by statute have been found to be sufficiently 
     ``criminal'' to implicate double jeopardy concerns. In other 
     words, whether a particular punishment is criminal or civil 
     may require an interpretation of congressional intent and the 
     extent to which the penalty can be characterized as penal in 
     nature.

[[Page H9252]]

       Factors that courts consider when determining whether a 
     penalty is criminal in nature include: (1) ``whether the 
     sanction involves an affirmative disability or restraint''; 
     (2) ``whether it has historically been regarded as a 
     punishment''; (3) ``whether it comes into play only on a 
     finding of scienter''; (4) ``whether its operation will 
     promote the traditional aims of punishment--retribution and 
     deterrence''; (5) ``whether the behavior to which it applies 
     is already a crime''; (6) ``whether an alternative purpose to 
     which it may rationally be connected is assignable for it''; 
     and (7) ``whether it appears excessive in relation to the 
     alternative purpose assigned.'' However, Congress' 
     designation of a penalty as ``civil'' creates a presumption 
     which must be overcome by clear evidence to the contrary. 
     Thus, civil penalties are not typically found to be criminal 
     in nature. For example, in Hudson v. United States, the U.S. 
     Supreme Court held that monetary assessments and an 
     occupational debarment order did not implicate the Double 
     Jeopardy Clause, because neither type of penalty constituted 
     a ``criminal punishment.''
       Regardless of the nature of the penalty sought, the Double 
     Jeopardy Clause does not bar a subsequent action if no more 
     than preliminary proceedings commenced in the prior action. 
     Typically, an action must have reached at least the stage 
     where jury members have been sworn (in a jury trial) or where 
     the first evidence has been presented to the judge (in a 
     bench trial).


 Application to a Subsequent Suit Against the New Black Panther Party 
                    for Self-Defense or its Members

       In January 2009, the U.S. Department of Justice filed a 
     civil suit in a U.S. district court against the New Black 
     Panther Party for Self-Defense and three of its members. The 
     suit was brought by the Department's Civil Rights Division 
     pursuant to the Voting Rights Act of 1965, 42 U.S.C. 
     Sec. 1973 et. seq., which prohibits intimidation of ``any 
     person for voting or attempting to vote'' and authorizes the 
     Attorney General to bring civil actions to obtain declaratory 
     judgment or injunctive relief to prohibit such actions. The 
     Department alleged that members of the Party had intimidated 
     voters and those aiding them during the November 2008 general 
     election and sought an injunction banning the Party from 
     deploying or displaying weapons near entrances to polling 
     places in future elections. However, after the Department 
     obtained an injunction barring one member's future use of 
     weapons near polling places, it voluntarily dismissed its 
     suit against the Party and the other members.
       For two reasons, it appears likely that the Double Jeopardy 
     Clause would not prohibit the Justice Department from 
     bringing a similar suit on the same or similar grounds 
     against at least the Party and the individual members for 
     whom the previous suit was dismissed. First, it is likely 
     that a court would find that the injunctive relief sought in 
     the previous action constitutes a civil, rather than 
     criminal, punishment.
       Although Congress' designation of the injunctive relief 
     actions as a civil penalty is not ultimately dispositive, it 
     is unlikely, based on the seven factors noted previously, 
     that injunctive relief sought by the Justice Department would 
     be viewed as sufficiently criminal in nature so as to 
     overcome the presumption in favor of accepting Congress' 
     characterization. Most importantly, the injunctions seem to 
     have been primarily designed to prohibit the use of guns at 
     polling places for the purpose of implementing the purposes 
     of the Voting Rights Act, rather than to impose punishment on 
     the defendants.
       Second, because the United States voluntarily dismissed its 
     suits against the Party and two of the three individual 
     members before those defendants had filed an answer or motion 
     to dismiss the suit, the previous action had not moved 
     sufficiently beyond preliminary steps so as to implicate the 
     Double Jeopardy Clause. With respect to the one member 
     against whom an injunction was obtained, this second factor 
     would not apply. However, due to the likely characterization 
     of the injunction as a civil penalty, it remains unlikely 
     that a subsequent action would be barred.

                              {time}  1445

  It is imperative that we protect all Americans' right to vote. This 
is sacrosanct on an inalienable right of any democracy. The career 
attorneys and the appellate division within the Department sought to 
demonstrate the Federal Government's commitment to protecting this 
right by vigorously prosecuting any individual or group who seeks to 
undermine this right. The only legitimate course of action for the 
trial team is to bring the case again and allow our Nation's justice 
system to work as it was intended.
  And to see it again, look for it in your own eyes. Look at 
www.electionjournal.org.

 ____________________