Posted August 22, 2007 by J. Gerald Hebert and Brian Dupre Spawn of Schlozman: DOJ Rewrites the Book on Voting RightsQuestion: When you’re the Gonzales Department of Justice and it is discovered you took actions inconsistent with written DOJ policy, what do you do? Answer: Rewrite the policy. Remember Brad Schlozman ? He was the political hack appointed to replace Todd Graves as US Attorney in Missouri who brought election fraud charges against four ACORN contractors on the eve of the 2006 election in the midst of a heated and closely-fought US Senate race. Schlozman conceded during his sworn testimony that these indictments were not necessary to protect the integrity of the election itself and that there would have been no harm to the DOJ prosecution if the Department had waited until after the election was held to secure and announce these indictments. Schlozman’s election eve indictments became a campaign issue and were utilized by Republicans in the state as a partisan cudgel. The motivations behind the indictments were widely perceived as little more than ruthless partisan politics. Perhaps most troubling, the election eve charges were inconsistent with a policy manual issued by the Department of Justice entitled “Federal Prosecution of Election Offenses”, which noted that federal prosecutors should be extremely careful not to conduct overt investigations during the pre-election period to avoid chilling legitimate voting and campaign activities, and causing the investigation itself to become a campaign issue. Indeed, the manual made it clear that to avoid injecting DOJ into the election process, “most, if not all, investigations of alleged election fraud crime must await the end of the election to which the allegation relates.” The rationale for such a rule is clear – federal prosecutors should not conduct investigations or bring indictments against political actors timed in such a way, or apparently timed in such a way, as to influence an election. So what has the Gonzales Justice Department done in response to the criticism of the election eve indictments by Schlozman, which seemed to be clearly at odds with longstanding Department policy ? First, it has not punished or even reprimanded Schlozman; indeed, he was instead promoted to a position overseeing US Attorneys nationwide. A recent TPM Muckraker post reports that Schlozman verified by phone that he left DOJ last week. And as for the policy against pre-election indictments in the DOJ prosecutor’s handbook that Schlozman failed to follow in 2006, it has simply been rewritten to allow such politically-motivated election eve prosecutions. Rewriting the handbook In the new version of the handbook released in May 2007[1], three substantive changes were made that will inevitably and purposefully have the potential or actual effect of injecting even more partisan politics into DOJ’s enforcement of election laws in 2008 and beyond: 1. The new prosecutor's manual allows federal prosecutors to play politics by timing investigations or indictments on election eve. As TPM Muckraker reported[2]: “The new manual has also removed language from the 1995 version about investigating voter fraud shortly before the election. The past version[3] was crystal clear, saying that the Department ‘must refrain from any conduct which has the possibility of affecting the election itself,’ (emphasis added) that investigators should be ‘extremely careful’ about it, and that ‘most, if not all, investigation of an alleged election crime must await the end of the election to which the allegation relates.’" (emphasis added). The newly revised version of the DOJ manual contains no such mandatory restrictions on DOJ investigators and prosecutors, and now reads: “Election fraud cases often depend on the testimony of individual voters whose votes were co-opted in one way or another. But in most cases voters should not be interviewed, or other voter-related investigation done, until after the election is over. Such overt investigative steps may chill legitimate voting activities. They are also likely to be perceived by voters and candidates as an intrusion into the election. Indeed, the fact of a federal criminal investigation may itself become an issue in the election.” (emphasis added). So while the former DOJ policy manual made it clear that “most, if not all” election eve investigations have the possibility of affecting the election, the new policy manual says merely “most” such investigations will do so. In making this change, DOJ does not acknowledge that nearly all election fraud investigations will likely affect elections and should, therefore, wait until after the election is over before being launched. More importantly, the manual changes what heretofore had been a mandatory prohibition of pre-election investigations and indictments (absent extraordinary circumstances that go to the actual integrity of conducting the election itself) to discretionary guidelines that prosecutors may or may not choose to follow. 2. The new federal prosecutor’s manual no longer cautions against pursuing isolated instances of individual voter fraud (as compared to mass cases of voter suppression). The new manual simply removes the following language[4]: "The Justice Department generally does not favor prosecution of isolated fraudulent voting transactions. This is based in part on constitutional issues that arise when federal jurisdiction is asserted in matters having only a minimal impact on the integrity of the voting process. To be prosecuted federally, an election fraud must usually involve a systematic and organized pattern of abuse." The Department’s new policy which would allow for a focus on individual voter fraud is frightening for minority voters who have often been the targets of those who, on election eves, use law enforcement machinery to sway elections. One can easily imagine cases in 2008 where individual voters are indicted in the days just before the election and the indictments are highlighted with a DOJ press release and immediately followed by a press release of a political party championing the indictments. Indeed, this is precisely what happened in Kansas City when former US Attorney Schlozman indicted the ACORN contractors. Immediately following Schlozman’s announcement of the indictment, the state Republican Party held a press conference trumpeting the vote fraud indictments. See Missouri Republican party’s press release entitled “Democrat-Linked ACORN Members Indicted for Voter Fraud in Kansas City”.[5] In addition to the possibility of influencing an election, this type of prosecution can have a serious chilling effect on voters, especially in minority and immigrant communities. Given this change in DOJ policy, it is troubling that federal prosecutors will no longer face any inhibitions in pursuing investigations or indictments of alleged voter fraud against individuals on the eve of an election and doing so for political purposes. And these concerns are not merely conjecture. Two or three of the fired US Attorneys appear to have been removed from office for failure to prosecute alleged voter fraud cases on the eve of the 2004 elections with sufficient aggression to please the White House – David Iglesias of New Mexico, John McKay of Seattle, and possibly Todd Graves of Kansas City. 3. The new manual significantly narrows the list of pre-election investigations to be avoided by prosecutors, leading to potential interference with future elections . Sen. Diane Feinstein (D-CA) expressed her concerns with the new policy and requested an explanation in a letter to DOJ on August 2, 2007: “In addition to the changes I mentioned at the hearing, one other change needs to be explained. The Sixth Edition’s strict statement – that the Department must refrain from affecting elections – applied to all “election fraud matters.” 6th Ed. at 61. The new Seventh Edition, however, states only that the Department should avoid investigations that involve “alleged fraud in the manner in which votes were cast or counted.” 7th Ed. at 92. “Why were the changes made, and what is being done to ensure there is no negative impact on elections?” When Attorney General Alberto Gonzales was asked about these changes he – to no one’s surprise – claimed ignorance. Here’s the exchange he had with Sen. Feinstein during the hearing on July 24[7]: “FEINSTEIN: Then a sentence that's underlined in the '95 edition, which states thus: ‘Most, if not all, investigations of an alleged election crime must await the end of the election to which the allegation relates.’ It was removed in this new edition. “Weakened was this language: ‘It should also be kept in mind that any investigation undertaken during the final stages of a political contest may cause the investigation itself to become a campaign issue.’ “Why was it necessary to remove this language in this new edition in the Federal Prosecution of Election Offenses rules? “GONZALES: Senator, I don't -- sitting here today, I don't know the answer to that question.” Why, as we go into Election 2008, were these changes suddenly made to a manual that has not been altered since 1995 ? That’s exactly what Sen. Feinstein wants to know, and she is right to insist on an answer. The initial letter she got back from DOJ after Gonzales promised to look into the issue, again, to no one’s surprise, didn’t answer that question. On August 2, Feinstein asked again in a letter to the Attorney General[8]: “Why were the changes made, and what is being done to ensure there is no negative impact on elections? … I am concerned that the letter asserts there has been “no substantive change” to the Department’s policies regarding noninterference with elections. Since there is no explanation of the changes that were made, I find this assertion lacks merit.” A Cover-Up? Normally, where there’s stonewalling, it is because there’s something to hide. And it’s not just Gonzales’ refusal to answer questions from US Senators about the change in prosecution policy that raises concerns. Recently released Election Assistance Commission (EAC) documents show that DOJ official Craig Donsanto, who heads the election fraud unit, purged a portion of an interview transcript in which he discussed changes in DOJ policy before the EAC released a study to the public. When consultants Tova Wang and Job Serebrov were hired by the EAC to produce a bipartisan study on voter fraud, EAC documents show they interviewed dozens of individuals knowledgeable about the issue, including Donsanto and others at DOJ. In their original interview with Donsanto, he discussed a new approach the department was taking toward individual, isolated instances of potential fraud, which would later be reflected in the omissions found in the “revised” manual. But according to Wang, and documented in e-mails released by the EAC, Donsanto insisted that the portion of the transcript in which he discussed changes in DOJ’s direction be edited out before it was released to the public. On Nov. 30, 2006 Peggy Sims, an Election Research Specialist at the EAC, wrote in an e-mail to Juliet Hodgkins, General Counsel of the EAC, “I redacted two sentences that I thought we should not publicize and one that I thought was in error from the Donsanto description.”[9] On June 30, 2006, Sims wrote to Serebrov and Wang of Donsanto’s objections to the portions of his interview summary in which he discussed the new activities saying “the paragraph has already raised red flags.”[10] To which Wang responded, “If the interview is ‘edited’ as you put it, I will be very, very uncomfortable, as I believe Job [Serebrov] would be as well.”[11] The EAC emails show that Wang’s Republican co-author Job Serebrov did concur with Wang’s objections. Even still, Wang suggested Donsanto be given the opportunity to make a statement to be included in their report disagreeing with the interview summary. This reasonable approach was apparently rejected. What Donsanto wanted to edit out of his remarks was his explicit or implicit acknowledgment that DOJ had shifted focus to prosecute more individuals for voter fraud than had been the case in prior Administrations. Focusing on individual cases would mean less focus on allegations of massive vote suppression through such techniques as vote caging. So why would Donsanto insist on deleting his earlier remarks ? Did he, upon reflection, see his remarks as recorded by Wang/Serebrov as an acknowledgement that DOJ policy had significantly changed under this Administration? If so, then perhaps Donsanto got cold feet about being so forthright, since his supervisors at DOJ would likely see his comments as supporting the claim that the Bush-Ashcroft-Gonzales Justice Department has politicized the federal prosecution of voter fraud cases. In any event, what we know now from the EAC documents is that Donsanto insisted that his comments be edited out and the EAC complied. Just Another Example of Perverting DOJ’s Mission The shift of focus reflected in these changes to the manual is echoed by other politicized shifts in priorities at the DOJ Civil Rights Division. For instance:
When questioned about staff turnover, hiring practices and a series of drastic shifts in policy and practices, political appointees to DOJ under the current Administration have been at best elusive and at worst uncooperative and misleading. When forced to perform the verbal gymnastics under oath, mistakes have been made. Attorney General Alberto Gonzales, Deputy Attorney General Paul McNulty, and Brad Schlozman have all had to “clarify” their testimony to Congress. In Schlozman’s case in particular, his “clarification” was little more than an admission that he had deliberately misled the committee. Donsanto’s editing of the interview transcript and the Attorney General’s repeated memory lapses while under oath about major decisions and events at DOJ seem in the same vein of obfuscation and deception from DOJ officials. Sounds of Silence: The DOJ Response to Voter Suppression The media has finally begun to pay attention to vote caging and the Department of Justice’s complicity in the sort of voter suppression described above[18]. In addition to Sen. Feinstein’s request for an explanation of the changes to the manual, three Senators have demanded an investigation into the DOJ’s involvement in vote caging. The only response coming from DOJ is silence. Senators Kennedy and Whitehouse called for an investigation on June 18[19]. After two months they have received no response from DOJ. On June 21 Deputy AG Paul McNulty pledged to House Judiciary Chair John Conyers that DOJ would look into vote caging[20]. Shortly thereafter McNulty resigned his position at DOJ and to date Chairman Conyers has still not received any answers. On July 26 Sen. Bill Nelson (D-FL) added his call for an investigation[21]. Not surprisingly he too has received no response from DOJ. Based on this track record, Senator Feinstein would be wise not to hold her breath waiting for a response. The current DOJ’s failure to investigate and prosecute cases seeking to protect minority voting rights is perhaps only matched by its failures to respond to requests and subpoenas for information about these issues from Congress. If You Thought 2004 and 2006 Were Bad, Just Wait for ‘08 This politicized Department of Justice has literally re-written the book on voting rights prosecutions, and it has done so leading up to the 2008 election. The abuses of prosecutorial discretion that marred the past two election cycles and led to the US Attorney scandal have now been sanctioned by this DOJ. Sen. Feinstein is correct in her letter earlier this month to DOJ when she wrote: “Taken together, the changes suggest that the Department has revised the manual to allow prosecutions that it knows will be used for partisan political advantage during the election process. That would be a grave departure from the Department’s traditional mission of securing justice for all Americans. Please provide answers to my questions and explanations for all of the changes I have identified.”[22] We would only differ with Senator Feinstein in one very small procedural regard. With the voting rights of Americans at stake going into the 2008 election, and the prolonged stonewalling by Gonzales and the DOJ in answering to Congress, it’s time to stop saying “please.” [1] http://www.usdoj.gov/criminal/pin/docs/electbook-0507.pdf [2] “New DoJ Manual Adopts Administration's Voter Fraud Focus,” Paul Kiel, TPM Muckraker, http://www.tpmmuckraker.com/archives/003801.php [3] http://www.tpmmuckraker.com/archives/003157.php [4] http://www.usdoj.gov/criminal/pin/docs/electbook-0507.pdf [5] http://www.mogop.org/wp/2006/11/02/democrat-linked-acorn-members-indicted-for-voter-fraud-in-kansas-city/ [6]http://feinstein.senate.gov/public/index.cfm?FuseAction=NewsRoom.PressReleases&ContentRecord_id=277fa2e2-be89-e253-e5b2-8b759f0f141a&Region_id=&Issue_id= [7] “New DoJ Manual Adopts Administration's Voter Fraud Focus,” Paul Kiel, TPM Muckraker, http://www.tpmmuckraker.com/archives/003801.php [8]http://feinstein.senate.gov/public/index.cfm?FuseAction=NewsRoom.PressReleases&ContentRecord_id=277fa2e2-be89-e253-e5b2-8b759f0f141a&Region_id=&Issue_id= [9] Page 000360 [10] Page 000616 [11] Page 000615 [12] http://www.clcblog.org/blog_item-138.html [13] http://www.boston.com/news/nation/washington/articles/2006/07/23/civil_rights_hiring_shifted_in_bush_era/ [14] http://www.boston.com/news/nation/washington/articles/2006/07/23/civil_rights_hiring_shifted_in_bush_era/ [15] http://www.boston.com/news/nation/washington/articles/2006/07/23/civil_rights_hiring_shifted_in_bush_era/ [16] “Politics Alleged In Voting Cases,” Dan Eggen, Washington Post, Jan. 23, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/01/22/AR2006012200984_pf.html [17] “Ex-DOJ employees spar with administration,” Lisa Lerer, The Politico, [18] “Voter Caging & Housing Works: NOW investigates a secret Republican plan designed to disqualify voters,” NOW, July 27, 2007, http://www.pbs.org/now/shows/330/index.html [19] http://www.bradblog.com/?p=4701 [20] House Judiciary Subcommittee on Commercial and Administrative Law, June 21, 2007, http://judiciary.house.gov/oversight.aspx?ID=340 [21] “Nelson wants Jacksonville voting probe; He calls for a federal investigation into voter suppression allegations,” Deirdre Conner, Jacksonville Times-Union, Aug. 2, 2007, http://www.jacksonville.com/tu-online/stories/080207/met_188483360.shtml [22]http://feinstein.senate.gov/public/index.cfm?FuseAction=NewsRoom.PressReleases&ContentRecord_id=277fa2e2-be89-e253-e5b2-8b759f0f141a&Region_id=&Issue_id= |
|