[Congressional Record (Bound Edition), Volume 156 (2010), Part 12]
[Extensions of Remarks]
[Pages 16982-16984]
[From the U.S. Government Publishing Office, www.gpo.gov]




TESTIMONY OF MR. CHRISTOPHER COATES BEFORE THE U.S. COMMISSION ON CIVIL 
            RIGHTS REGARDING UNEQUAL ENFORCEMENT OF THE LAW

                                 ______
                                 

                           HON. FRANK R. WOLF

                              of virginia

                    in the house of representatives

                      Tuesday, September 28, 2010

  Mr. WOLF. Madam Speaker, I submit a copy of my September 23, 2010, 
letter to Attorney General Holder strongly supporting the decision of 
Mr. Christopher Coates to comply with a subpoena to appear before the 
U.S. Commission on Civil Rights. Mr. Coates contacted me prior to his 
testimony to share this information and he requested all applicable 
federal whistleblower protections.
  I also submit a portion of Mr. Coates' testimony before the U.S. 
Commission on Civil Rights in which he discusses the unequal 
enforcement of federal voting laws by political and career officials in 
the Department of Justice.
                                    Congress of the United States,


                                     House of Representatives,

                               Washington, DC, September 23, 2010.
     Hon. Eric H. Holder, Jr.,
     Attorney General, U.S. Department of Justice, Washington DC.
       Dear Attorney General Holder: I write to strongly support 
     Mr. Christopher Coate's decision to comply with a federal 
     subpoena to appear before the U.S. Commission on Civil 
     Rights. I also wanted to make you aware that prior to 
     appearing before the commission, Mr. Coates contacted me to 
     share similar information relating to the equal enforcement 
     of federal voting laws.
       Mr. Coates has every right to bring this information to a 
     Member of Congress as well as a responsibility to comply with 
     the commission's subpoena, despite the department's 
     obstruction. I trust that Mr. Coates will face no 
     repercussion for his decision and expect you to inform 
     political and career supervisors to respect his decision.
       As you are aware, the 1912 Anti-Gag Legislation and 
     Whistleblower Protection Laws for Federal Employees 
     guaranteed that ``the right of any persons employed in the 
     civil service . . . to petition Congress, or any Member 
     thereof, or to furnish information to either House of 
     Congress, or to any committee or member thereof, shall not be 
     denied or interfered with.'' (37 Stat. 555, 1912; codified at 
     5 U.S.C. 7211, 1994)
       Additionally, you should be aware that federal officials 
     who deny or interfere with employees' rights to furnish 
     information to Congress are not entitled to have their 
     salaries paid by the taxpayers. As ranking member on the 
     House Commerce-Justice-Science Appropriations subcommittee, I 
     assure you that I take this statute very seriously and will 
     do everything in my power to enforce it should any negative 
     actions be taken against Mr. Coates as a result of his 
     decision to contact Congress and appear before the 
     commission.
       A copy of this letter and Mr. Coate's testimony before the 
     commission will be submitted to the Congressional Record for 
     public review.
           Sincerely,
                                                    Frank R. Wolf,
     Member of Congress
                                  ____


   Testimony of Christopher Coates--U.S. Commission on Civil Rights, 
                           September 24, 2010

       Good morning, Chairman Reynolds, Vice-Chair Thernstrom, and 
     other members of this Commission. I am here to testify about 
     the Department of Justice's (DOJ) final disposition of the 
     New Black Panther Party (NBPP) case and the hostility in the 
     Civil Right Division (CRD) and Voting Section toward the 
     equal enforcement of some of the federal voting laws.
       This Commission served me with a subpoena in December 2009 
     to testify in its investigation of the DOD's actions in the 
     NBPP case. Since service of that subpoena, I have been 
     instructed by DOJ officials not to comply with it. I have 
     communicated with these officials, including Assistant 
     Attorney General for Civil Rights, Thomas Perez, and 
     expressed my view that I should be allowed to testify 
     concerning this important civil rights enforcement issue. I 
     have pointed out that I have personal knowledge that is 
     relevant to your investigation--personal knowledge that Mr. 
     Perez does not have--because he was not serving as AAG for 
     Civil Rights at the time of the final disposition of the NBPP 
     case. My requests to be allowed to testify and your repeated 
     requests to the DOJ for it to allow me to respond to the 
     lawfully-issued subpoena have all been denied.
       Furthermore, I have reviewed the written statements and the 
     testimony that Mr. Perez and others from the DOJ have given 
     to this Commission and to Congress concerning the CRD's 
     enforcement activities, including its enforcement activities 
     in the NBPP case. In addition, I have reviewed Mr. Perez' 
     August 11, 2010 letter to this Commission in which he again 
     denied your request that I be allowed to testify before you 
     and in which he made various representations concerning the 
     CRD's enforcement practices. Based upon my own personal 
     knowledge of the events surrounding the CRD's actions in the 
     NBPP case and the atmosphere that has existed and continues 
     to exist in the CRD and in the Voting Section against fair 
     enforcement of certain federal voting laws, I do not believe 
     these representations to this Commission accurately reflect 
     what occurred in the NBPP case and do not reflect the hostile 
     atmosphere that has existed within the CRD for a long time 
     against race-neutral enforcement of the Voting Rights Act 
     (VRA).
       In giving this testimony, I do not claim that Mr. Perez has 
     knowingly given false testimony to either this Commission or 
     to Congress. Indeed, as I have previously indicated, Mr. 
     Perez was not present in the CRD at the time the decisions 
     were made in the NBPP case, and he may not be fully aware of 
     the long-term hostility to the race-neutral enforcement of 
     the VRA in either the CRD or in the Voting Section. Instead, 
     my testimony claims that DOJ's public representations to this 
     Commission and other entities do not accurately reflect what 
     caused the dismissals of three defendants in the NBPP case 
     and the very limited injunctive relief obtained against the 
     remaining defendant, and they do not accurately describe the 
     long-standing opposition in the CRD and in the Voting Section 
     to the equal enforcement of the provisions of the VRA.
       I did not lightly decide to comply with your subpoena in 
     contradiction to the DOJ's directives not to testify. I had 
     hoped that this controversy would not come to this point; 
     however, I have determined that I will no longer fail to 
     respond to your subpoena and thereby fail to provide this 
     Commission accurate information pertinent to your 
     investigation. Quite simply, if incorrect representations are 
     going to successfully thwart inquiry into the systemic 
     problems regarding race-neutral enforcement of the VRA by the 
     CRD--problems that were manifested in the DOJ's disposition 
     of the NBPP case--that end is not going to be furthered or 
     accomplished by my sitting silently by at the direction of my 
     supervisors while incorrect information is provided. I do not 
     believe that I am professionally, ethically, legally, much 
     less, morally bound to allow such a result to occur. In 
     addition, in giving this testimony I am claiming the 
     protections of all applicable federal whistleblower statutes.
       On the other hand, in giving this testimony I will not 
     answer questions which will require me to disclose 
     communications in the NBBP case that are protected by the 
     deliberative process privilege. That privilege that the DOJ 
     has asserted in this matter can, in my opinion, be protected 
     while at the same time, I can provide you information that 
     you need to conduct your investigation--indeed, first hand 
     information you will not have if I do not testify--that 
     respects the privilege.


                           the ike brown case

       To understand what occurred in the NBPP case, those action 
     must be placed in the context of United States v. Ike Brown 
     et al. Prior to the filing of the Brown case in 2005, the CRD 
     had never filed a single case under the VRA in which it 
     claimed that white voters had been subjected to racial 
     discrimination by defendants who were African American or 
     members of other minority groups. Moreover, the CRD and the 
     Voting Section had never objected to any voting change under 
     the preclearance requirement of Section 5 of the VRA on the 
     ground that the change had a racially discriminatory purpose 
     or effect on white voters. (No such objection, even in 
     jurisdictions that have majority-minority populations, has 
     been interposed to date. I will return to that subject later 
     in my presentation.) I am very familiar with the reaction of 
     many employees, both line and management attorneys and 
     support staff in both the CRD and the Voting Section, to the 
     Ike Brown investigation and ease because I was the attorney 
     who initiated and led the investigation in that matter and 
     was the lead trial attorney throughout the case in the trial 
     court.
       Opposition within the Voting Section was widespread to 
     taking actions under the VRA on behalf of white voters in 
     Noxubee County, MS, the jurisdiction in which Ike Brown is 
     and was the Chairman of the local Democratic Executive 
     Committee. In 2003, white voters and candidates complained to 
     the Voting Section that elections had been administered in a 
     racially discriminatory manner and asked that federal 
     observers be sent to the primary run-off elections. Career 
     attorneys in the Voting Section recommended that we not even 
     go to Noxubee County for the primary run-off to do election 
     coverage, but that opposition to going to Noxubee was 
     overridden by the Bush Administration's CRD Front Office. I 
     went on the coverage and while traveling to Mississippi, the 
     Deputy Chief who was leading that election coverage asked me, 
     ``can you believe that we are

[[Page 16983]]

     going to Mississippi to protect white voters?'' What I 
     observed on that election coverage in Noxubee County was some 
     of the most outrageous and blatant racially discriminatory 
     behavior at the polls committed by Ike Brown and his allies 
     that I have seen or had reported to me in my thirty three-
     plus years as a voting rights litigator. A description of 
     this wrongdoing is well summarized in Judge Tom bee's opinion 
     in that case, which is reported at 494 F. Supp. 2d 440 (2007) 
     and in the Fifth Circuit Court of Appeals' opinion affirming 
     the judgment and injunctive relief against Mr. Brown and the 
     local Democratic Executive Committee, which is reported at 
     561 F. 3d 420 (2009).
       Sometime, as best I recall, in the winter of 2003-04 I 
     wrote a preliminary memorandum summarizing the evidence we 
     had to that point and made a recommendation as to what action 
     to take in Noxubee County. In that memorandum, I recommended 
     that the Voting Section go forward with an investigation 
     under the VRA and argued that a civil injunction against Ike 
     Brown and the local Democratic Executive Committee was the 
     most effective way of stopping the pattern of voting 
     discrimination that I had observed. I forwarded this 
     memorandum to Joe Rich who was the Chief of the Voting 
     Section at that time. I later found out that Mr. Rich had 
     forwarded the memorandum to the CRD Front Office, but he had 
     omitted the portion of the memorandum in which I discussed 
     why it was best to seek civil injunctive relief in the Brown 
     case. Because I am aware that Mr. Rich and Mr. Hans von 
     Spakovsky have filed conflicting affidavits on this point 
     with this Commission, I believe that I am at liberty to 
     address this issue without violating DOJ privileges.
       I want to underscore that my memorandum in which Mr. Rich 
     omitted portions was not the subsequent justification 
     memorandum that sought approval to file the case in Noxubee 
     County, but was a preliminary memorandum that sought 
     permission to go forward with the investigation. 
     Nevertheless, it is my clear recollection that Mr. Rich 
     omitted a portion of my memorandum--a highly unusual act--and 
     that I was later informed by the Division Front Office that 
     Mr. Rich had stated that the omission was because he did not 
     agree with my recommendation that the investigation needed to 
     go forward or that a civil injunction should be sought. 
     Nevertheless, approval to go forward with the investigation 
     was obtained from the Bush Administration CRD Front Office in 
     2004.
       Once the full investigation into Ike Brown's practices 
     commenced, opposition to it by career personnel in the Voting 
     Section was widespread. Several examples will suffice. I 
     talked with one career attorney with whom I had previously 
     worked successfully in a voting case and ask him whether he 
     might be interested in working on the Ike Brown case. He 
     informed me in no uncertain terms that he had not come to the 
     Voting Section to sue African American defendants. One of the 
     social scientists who worked in the Voting Section and whose 
     responsibility it was to do past and present research into a 
     local jurisdiction's history flatly refused to participate in 
     the investigation. On another occasion, a Voting Section 
     career attorney informed me that he was opposed to bringing 
     voting rights cases against African American defendants, such 
     as in the Ike Brown case, until we reached the day when the 
     socioeconomic status of blacks in Mississippi was the same as 
     the socio-economic status of whites living there. Of course, 
     there is nothing in the statutory language of the VRA that 
     indicates that DOJ attorneys can decide not to enforce the 
     racial-neutral prohibitions in the Act against racial 
     discrimination or intimidation until socio-economic parity is 
     achieved between blacks and whites in the jurisdiction in 
     which the cases arises.
       But with the help of one attorney and one paralegal who was 
     new to the Voting Section, and the support of the CRD Front 
     Office, we were able to investigate and bring suit. By the 
     time the case went into discovery and to trial in 2007, the 
     Bush Administration had hired some attorneys, such as 
     Christian Adams and Joshua Rogers, who did not oppose working 
     on lawsuits of this kind. They and I were able to complete 
     discovery and try the case and win and obtain meaningful 
     injunctive relief, including the removal of Ike Brown from 
     his position as Superintendent of the Democratic Primary 
     elections. However, I have no doubt that this investigation 
     and case would not have gone forward if the decision had been 
     ultimately made by the career managers in the Voting Section 
     when the case was first approved for investigation and then 
     filing.
       A regrettable incident occurred during the trial of the 
     case. A young African American who worked in the Voting 
     Section as a paralegal volunteered to work on the Ike Brown 
     case, and he later volunteered to work on the NBPP case. 
     Because of his participation in the Ike Brown case, he and 
     his mother who was an employee in another Section of the CRD 
     were harassed by an attorney in that other Section and by an 
     administrative employee and a paralegal in the Voting 
     Section. I reported this to the Bush Administration CRD Front 
     Office, and the harassment was addressed.
       But even after the favorable ruling in the Ike Brown case, 
     opposition to it continued to occur. At a meeting with CRD 
     management in 2008 concerning preparations for the general 
     election, I pointed to the ruling in the Ike Brown case as 
     precedent supporting race-neutral enforcement of the VRA. 
     Mark Kappelhoff, then Chief of the CRD's Criminal Section, 
     complained that the Brown case had caused the CRD problems in 
     its relationship with civil rights groups. Mr. Kappelhoff was 
     correct in claiming that a number of these groups are opposed 
     to the race-neutral enforcement of the VRA, that they only 
     want the Act enforced for the benefit of racial minorities, 
     and that they had complained bitterly about the Ike Brown 
     case. But of course, what Mr. Kappelhoff had not factored in 
     his criticism of the Brown case was that the primary role of 
     the CRD is to enforce the civil rights laws enacted by 
     Congress, not to serve as a ``crowd pleaser'' for many of the 
     civil rights groups.
       Many of those groups on the issue of race-neutral 
     enforcement of the VRA frankly have not pursued the goal of 
     equal protection of law for all people. Instead, many of 
     these groups act, as they did in the Brown case, not as civil 
     rights groups, but as special interest lobbies for racial and 
     ethnic minorities and demand, not equal treatment, but 
     enforcement of the VRA only for racial and language 
     minorities. Such a claim for unequal treatment is the 
     ultimate demand for preferential racial treatment.
       When I became Chief of the Voting Section in 2008 and 
     because I had experienced, as I have described, employees in 
     the Voting Section refusing to work on the Ike Brown case, I 
     began to ask applicants for trial attorney positions in their 
     job interviews whether they would be willing to work on cases 
     that involved claims of racial discrimination against white 
     voters, as well as cases that involved claims of 
     discrimination against minority voters. For obvious reasons, 
     I did not want to hire people who were politically or 
     ideologically opposed to the equal enforcement of the voting 
     statutes the Voting Section is charged with enforcing. The 
     asking of this question in job interviews did not ever, to my 
     knowledge, cause any problems with the applicants to whom I 
     ask that question, and in fact every applicant to whom I 
     asked the question responded that he or she would have no 
     problem working on a case involving white victims such as in 
     the Ike Brown case.
       However, word that I was asking applicants that question 
     got back to Loretta King. In the spring of 2009, Ms. King, 
     who by then had been appointed Acting AAG for Civil Rights by 
     the Obama Administration, called me to her office and 
     specifically instructed me that I was not to ask any other 
     applicants whether they would be willing to, in effect, race-
     neutrally enforce the VRA. Ms. King took offense that I was 
     asking such a question of job applicants and directed me not 
     to ask it because she does not support equal enforcement of 
     the provisions of the VRA and had been highly critical of the 
     filing and civil prosecution of the Ike Brown case. From Ms. 
     King's view, why should I ask that question when a response 
     that an applicant would not be willing to work on a case 
     against minority election officials would not in any way, in 
     her opinion, weigh against hiring that applicant to work in 
     the Voting Section.
       The election of President Obama brought to positions of 
     influence and power within the CRD many of the very people 
     who had demonstrated hostility to the concept of equal 
     enforcement of the VRA. For example, Mr. Kapplehoff, who had 
     complained in 2008 that the Brown case had caused problems 
     with civil rights groups, was appointed as the Acting Chief 
     of Staff for the entire CRD. And Loretta King, the person who 
     forbid me even to ask any applicants for a Voting Section 
     position whether he or she would be willing to enforce the 
     VRA in a race-neutral manner, was appointed as Acting 
     Assistant Attorney General for Civil Rights.
       Furthermore, one of the groups who had opposed the CRD's 
     civil prosecution of Ike Brown case the most adamantly was 
     the NAACP Legal Defense Fund (LDF), through its Director of 
     Political Participation, Kristin Clark. Ms. Clarke has spent 
     a considerable amount of her time attacking the CRD's 
     decision to file and prosecute the Ike Brown case. Grace 
     Chung Becker, the Acting AAG for Civil Rights during the last 
     year of the Bush Administration, and I were involved in a 
     meeting in the fall of 2008 with representatives of a number 
     of civil rights organizations concerning the Division's 
     preparations for the 2008 general election. At this meeting 
     Ms. Clarke spent considerable time criticizing the Division 
     and the Voting Section for bringing the Brown case when, in 
     fact, the district court had already ruled in the case. 
     Indeed, it was reported to me that Ms. Clarke approached an 
     African American attorney who had been working in the Voting 
     Section for only a short period of time in the winter of 2009 
     before the dismissals in the NBPP case and asked that 
     attorney when the NBPP case was going to be dismissed. The 
     Voting Section attorney to whom I refer was not even involved 
     in the NBPP case. This reported incident led me to believe in 
     2009 that LDF Political Participation Director, Ms. Clarke, 
     was lobbying for the dismissal of the NBPP case.

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