In short, a federal court rejected a claim of the “attorney work-product doctrine” by the Department of Justice (DOJ) for documents prepared after the government dismissed its case against the New Black Panther Party for Self Defense on May 15, 2009. (The work-product doctrine shields materials prepared in anticipation of litigation from release. The Obama administration was using it to try to protect documents sought by JW through the Freedom of Information Act (FOIA) and a related lawsuit.)
Several members of the New Black Panther Party were accused of engaging in voter intimidation during the 2008 presidential campaign.
In his August 4, 2011, decision, U.S. District Judge Reggie B. Walton rejected the Obama DOJ’s arguments that documents prepared after the government dismissed its case (against the Black Panthers on May 15, 2009) could be withheld under the “attorney work-product privilege” exemption. Judge Walton explained:
Although an injunction remains in place in the New Black Panther Party case…the filing of the motion for voluntary dismissal largely marked the end of the litigation. As such, the documents prepared subsequent to that event were not prepared in contemplation of litigation and are thus outside the scope of the work-product privilege.
Because the case had essentially ended on May 15, 2009, Judge Walton found that “it is difficult to see how” the 24 documents created after May 15, 2009, “were prepared or obtained because of the prospect of litigation, which is the testing question the Court must answer in evaluating the DOJ’s work-product claim.”
Although Judge Walton found that the DOJ improperly withheld the 24 documents under the attorney work product doctrine, he concluded that the documents were properly withheld under the deliberative process privilege. (This is the exemption that intends to protect the internal processes of the executive branch. The idea is that by guaranteeing confidentiality, the government is in a better position to receive candid advice and recommendations. In our experience, the government often uses this privilege broadly and inappropriately to stonewall the release of information to the public.)
Judge Walton also found that the DOJ failed to satisfy its burden of showing that the 24 documents may be withheld in their entirety. Under the deliberative process privilege, the DOJ may only withhold information that is “predecisional and deliberative.” Judge Walton explained:
As it stands now, the description of the DOJ’s segregation efforts is too general for the Court, and the plaintiff, to evaluate whether any factual material in these documents is ‘inextricably intertwined’ with the deliberative material and would thus permit the DOJ to withhold the documents in their entirety.
Judge Walton provided the DOJ a second chance to satisfy its burden by submitting “a renewed motion for summary judgment accompanied by a declaration or other documentation that solely addresses the segregability issue.”
(The DOJ’s renewed motion for summary judgment is due September 30, 2011. Judge Walton hopes to rule by February 3, 2012.)
Importantly, Judge Walton also stated that if the Obama DOJ fails to “provide adequate detail regarding why these documents cannot be segregated, the DOJ will be required to disclose the non-exempt portions to [Judicial Watch].”
So additional documents could be forthcoming, which would help Judicial Watch to complete the public record on this race-tinged scandal.
Let’s review what we know so far…
According to a DOJ document previously produced to Judicial Watch, top political appointees at the DOJ were involved in the decision to dismiss its voting rights case against the New Black Panther Party, including Associate Attorney General Thomas Perrelli, the third highest ranking official at the Obama DOJ.
Attorney General Eric Holder also received “an update on a planned course of action in the NBPP” from Acting Assistant Attorney General Loretta King dated May 12, 2009, just three days before the case was dismissed, according to a Vaughn index uncovered by Judicial Watch. (A Vaughn index describes documents being withheld from disclosure under FOIA and the basis for the withholdings.)
The documents JW uncovered through this Vaughn index include descriptions of internal DOJ email correspondence that directly contradict sworn testimony by Thomas Perez, Assistant Attorney General for the Civil Rights Division, who testified before the U.S. Commission on Civil Rights that no political leadership was involved in the decision.
So now you see why it is so important to force the release of as much information as possible about this scandal, and to find out why the Obama administration is going to such extraordinary lengths to shield this information from the public.
We already know the Obama administration’s claim that political appointees were not involved in this decision is patently false. And now DOJ officials continue to fight tooth-and-nail to stonewall the release of additional information. What else do they have to hide? This new court ruling means that we may pry loose some additional information on this voter intimidation scandal and perhaps get to the truth in the matter.
Of course, one of the major discoveries emerging from this scandal is the Obama DOJ’s racist and preferential application of civil rights laws. And if you’d like to know more about this problem, then please read on.
Obama Justice: Will Not Investigate Radical Hispanic Group
That Attacked Civil Rights Activist
If you needed any more evidence of the level of corruption that exists inside the Obama Department of Justice (DOJ) when it comes to enforcing civil rights statutes, here it is.
As I mentioned in this space several months ago, on March 15, 2011, civil rights activist Ted Hayes testified, by invitation before the Judiciary Committee of the Maryland House of Delegates, against providing taxpayer dollars for in-state tuition benefits for illegal aliens. Shortly after his testimony, Mr. Hayes was subjected to vicious retribution by a radical Hispanic group known as “The Timmytop,” which posted a hate video on a YouTube channel that included racist smears and death threats.
The video begins with the message “[expletive] you ‘Mayate,’” which is reportedly a racist and derogatory term used to smear African-Americans and “dark skinned” people. The video then streams a series of racist images including: The silhouette of a man hanging from a noose; photos of Mr. Hayes adjacent to photos of monkeys and bananas; and doctored photos of Mr. Hayes pictured with a gun next to his head. The video, which runs two minutes and nine seconds, concludes with the message “Your [sic] FREE Now Mayate go back to Africa.”
The video has since been removed from its original placement on YouTube, but it is available on Judicial Watch’s website here. (If you choose to watch it, please be warned that it is extremely offensive and unfit for young eyes.)
You might think that this type of vile behavior would earn the interest of the DOJ’s Civil Rights Division. (That’s what we thought, too.) After all, this is the division at the DOJ that is responsible for investigating and prosecuting violations of civil rights, including, and perhaps especially, those that could have a chilling effect on the First Amendment. In this case, you have the intimidation of a witness through death threats and humiliation.
Judicial Watch filed a complaint with the DOJ regarding the matter on April 28, 2011, calling for a full investigation. And recently we received a response directly from the office of Assistant Attorney General Thomas Perez (of Black Panther scandal fame). It was short and sweet:
The Federal Bureau of Investigation conducted an investigation into the matter referenced in your letter. We and the United States Attorney’s Office for the Central District of California reviewed the results of that investigation and concluded that this incident does not constitute a prosecutable violation of the federal criminal civil rights statutes. Accordingly we cannot authorize a criminal prosecution of this matter.
That’s it. No further explanation. No review of the evidence “reviewed” by the DOJ. Not even a concession that the treatment of Mr. Hayes was reprehensible and wrong. Just a flat out rejection and a lame reference to the DOJ’s general commitment to “combating violations of federal law that are motivated by racial or ethnic bias.”
So here we have another in a long line of examples of corruption at the Obama DOJ concerning the enforcement of civil rights laws. Apparently the enforcement of civil rights at the DOJ no longer has anything to do with violations of the law. It’s all about racial preferences and partisan politics.
Put another way, had Ted Hayes been a left-wing activist testifying on behalf of illegal alien tuition and attacked by white “conservatives,” Perez would have sprung into action. Trust me on that.
How do I know? Just look at the record!
First, consider the Black Panther scandal discussed in the first Weekly Update story. The DOJ dismissed it’s own voter intimidation lawsuit filed against members of Black Panthers, who hurled racial epithets and threatened white voters at a polling station in 2008. The Obama adminstration said no political appointees were involved in this decision. In fact, Perez himself testified to this effect. This testimony was false. JW uncovered evidence that indeed political appointees at the highest levels inside the Obama DOJ were involved. And why is this important?
According to The Washington Post, “[DOJ attorney J. Christian] Adams and a Justice Department colleague have said the [Black Panther] case was dismissed because the department is reluctant to pursue cases against minorities accused of violating the voting rights of whites.”
Describing the environment over at the Obama DOJ, Christopher Coates, a DOJ attorney, testified before the U.S. Commission on Civil Rights that there exists at the DOJ “…a deep-seated opposition to the equal enforcement of the Voting Rights Act against racial minorities and for the protection of whites who have been discriminated against.”
So, we know that the DOJ is involved in the race-based selective enforcement of civil rights laws. (Our friends (and client) over at Pajamas Media have also exposed the radical leftists being planted in the career ranks at DOJ, which further explains why a conservative seeking protection can get no justice at Justice.)
Now, Mr. Hayes is black. But he’s not in left-wing lock-step with the Obama administration on the issue of illegal alien tuition. And his attackers just happen to be part of a key voter block for the Obama 2012 re-election campign. So Mr. Hayes evidently is not entitled to any protection under law.
Remember, too, the immigration issue addressed by Mr. Hayes in the testimony that led to threats on his life. The Obama DOJ has taken a “La Raza” approach to the issue, allowing illegal alien sanctuary cities to thrive, while attacking states that want to crack down on illegal aliens. The Obama administration has also begun dismissing deportation cases against a wide range of illegal aliens, including those convicted of violent crimes.
Mr. Hayes is on the opposite side of the fence of Obama on these issues. And it is his politics that seem to define how the DOJ responded to his case. Which is just shameless and unlawful. This is yet another scandal in the Obama/Holder DOJ that ought to result in a new attorney general.
Appeals Court Rules Fannie/Freddie Docs
Can be Kept Secret by Obama Administration
So far the U.S. government has bailed out Fannie Mae and Freddie Mac to the tune of at least $130 billion, and perhaps as much as $1 trillion. And yet, the Obama adminsitration continues to stonewall the release of documents that could shed light on why Fannie and Freddie failed, thereby sending the economy into a tailspin from which we have yet to recover. (Those records are housed at the Federal Housing Finance Agency (FHFA) now that Fannie and Freddie are owned and operated by the federal government.)
Judicial Watch is especially interested in documents related to the political contributions of Fannie and Freddie. And we’ve gone to court to get our hands on them. Unfortunately, our efforts sustained another setback when an appellate court sided with the government and ruled that Fannie and Freddie’s records are not subject to Freedom of Information Act (FOIA) law and may continue to be kept secret:
The Federal Housing Finance Agency (FHFA) has been the conservator of Fannie Mae and Freddie Mac since 2008. Judicial Watch filed a request under the Freedom of Information Act (FOIA) asking the FHFA to disclose records of Fannie and Freddie that show how much money they gave to political campaigns. But it is uncontested that no one at the FHFA has ever read or relied upon any such documents. The district court held that the documents are not agency records subject to FOIA, and we agree.
So, in other words, because no one at the FHFA, the agency in charge of Fannie Mae and Freddie Mac, has “read or relied upon” the documents, they are not considered agency records under FOIA, and cannot be released. (Here’s an idea. Maybe someone at FHFA should read the documents so someone in the government might have a clue as to why these two institutions failed so miserably.)
We obviously, strenuously disagree with that Alice-in-Wonderland logic, as explained in our appellate brief: “In every meaningful way, the FHFA is lawfully in control of these records. There is nothing contingent, hypothetical, indefinite, or limiting about this plain statutory language vesting the FHFA with both legal custody and lawful control over the records.” Our lawyers are considering what the next step should be in this important legal battle.
But even though the record is incomplete with regard to Fannie and Freddie, we do know of one major factor in their demise: the corrupt relationship between the two mortgage giants and their congressional conspirators, who looked the other way while Fannie and Freddie continued their reckless lending policies. That’s why we’re after these records.
Members of Congress received more than $4.8 million in political contributions from Fannie Mae and Freddie Mac over a ten-year period.
According to OpenSecrets.org from 1998 through 2008, the top ten recipients of Fannie Mae and Freddie Mac's political largesse are as follows: Senator Dodd (D-CT), then-Senator Obama (D-IL), Senator Kerry (D-MA), Senator Bennett (R-UT), Rep. Bachus (R-AL), Rep. Blunt (R-MO), Rep. Kanjorski (D-PA), Senator Bond (R-MO), Senator Shelby (R-AL), Senator Reed (D-RI). Senator Dodd, the top recipient of Fannie Mae and Freddie Mac campaign contributions, is Chairman of the Senate Banking Committee responsible for regulating the mortgage industry. Notably, President Obama was a top recipient of campaign monies despite being in the Senate for only three years.
Still, this is just the tip of the iceberg. The documents currently being withheld by FHFA likely contain a treasure trove of information related to the inner workings of these two government-controlled agencies. That’s why Judicial Watch is fighting so aggressively to get hold of them.
But just because the Obama administration thinks the details of the collapse of Fannie and Freddie are none of your business, that doesn’t mean they’re going to stop taking your money.
According to The Washington Post:
Freddie Mac, the mortgage finance house, said Monday that it will ask for an additional $1.5 billion of taxpayer money to make up for losses stemming from weak housing markets.
The request falls on the heels of an announcement last week by Freddie Mac’s sister organization, Fannie Mae, that it will need $5.1 billion to make up its shortfall. The two coincide with Standard & Poor’s downgrade of the U.S. government’s credit rating from AAA status to AA+, which has the potential to affect the institutions’ lending and collecting abilities.
(The Associated Press is also reporting that in an act of abject desperation the Obama administration plans to be the world’s largest landlord: “The Obama administration may turn thousands of government-owned foreclosures into rental properties to help boost falling home prices. The Federal Housing Finance Agency said Wednesday it is seeking input from investors on how to rent homes owned by government-controlled mortgage companies Fannie Mae and Freddie Mac and the Federal Housing Administration.”)
The story of Fannie Mae and Freddie Mac is the story of the entire bailout scheme. The government continues to “invest” trillions of taxpayer dollars to prop up failing private institutions with no end in sight. And the Obama administration continues to stonewall and obfuscate even as it asserts government control of 90% of the housing market.
I don’t know about you but it seems that we’re in the same sorry spot three years after the bailouts/government takeovers that “rescued” our economy. Our credit has been downgraded, the stock market is on a rollercoaster, our government continues its gangster ways in attempting to run the private sector, the government-controlled housing market continues to be a mess, and our banks stand on a precipice. Unless our nation reckons with the government corruption behind the ongoing financial crisis, I suspect our economy (and our republic) will continue to flounder.
That is why Judicial Watch has been in tireless pursuit of these records, and indeed any records, related to Fannie and Freddie and the bailouts. If you want to read more about our bailout investigations and lawsuits, please click here.
Let me close with a note of praise to our investigative and legal teams. The legal and administrative shennanigans we face from this Obama administration (and, frankly, any administration) require patient, persistent, and smart litigators and investigators who are not put off by Big Government games and intensive court iitigation. And, of course, I am grateful for your support of Judicial Watch that provides our team with the resources necessary for our “David versus Golaith” battles with government lawyers and their well-funded allies on the Left.
Tom Fitton – President
Judicial Watch is a non-partisan, educational foundation organized under Section 501(c)(3) of the Internal Revenue code. Judicial Watch is dedicated to fighting government and judicial corruption and promoting a return to ethics and morality in our nation’s public life. To make a tax-deductible contribution in support of our efforts, and to access the embedded links please go to: www.JudicialWatch.org