Posted October 3, 2007 by J. Gerald Hebert The Senate Should Care About Truthful WitnessesMembers of the United States Senate appear ready to cast an important vote on Thursday. It now appears that FEC nominee Hans von Spakovsky will be brought up for a separate vote on Thursday. As the co-architect of DOJ’s politicization and vote suppression efforts (along with disgraced former DOJ attorney Brad Schlozman), he clearly should be rejected. According to inside sources, the Republican leadership has informed the Democratic leadership that von Spakovsky will be brought up first and if he is turned down, then the Republican leadership will block all of the remaining three nominees to the FEC from a confirmation vote. In other words, in the adolescent world of some members of the U.S. Senate, “if I don’t get my way, then I won’t play and there will be no game today”. But let’s put aside the gamesmanship regarding how the nomination of Hans von Spakovsky is being handled. Let’s also put aside the many reasons that he should not be confirmed. Those reasons, for anyone interested, are here, here, here, here, and here. Instead, let’s focus on how von Spakovsky misled Senators during the confirmation hearing with his evasive answers and half truths. Senators, even if they have not taken time to delve into the sordid details of von Spakovsky’s vote suppression efforts, or familiarized themselves with how he imposed the politicization of DOJ at the local level (down to the paralegal level), should be concerned that von Spakovsky whistled past the truth during the confirmation process. You may recall that, for the most part, von Spakovsky’s answers during the Rules Committee hearing consisted of a three prong defense: 1) I don’t recall; 2) I was not making the decisions, just carrying out orders as the messenger; and 3) I cannot say what my position was because that is privileged information. Take for example his handling of questions regarding an anonymous law review article that von Spakovsky wrote. That piece defended the propriety of voter ID laws. Shortly thereafter, von Spakovsky played a supervisory role in reviewing a controversial voter ID bill from Georgia. During the review, von Spakovsky failed to disclose either the law review article or that he already held strong views on the voter ID law to those who were urging the Department of Justice to object to the law. (The law was approved by DOJ despite the near unanimous career staff recommendations to the contrary, and the law was later enjoined by a federal judge because it was tantamount to a poll tax). Here’s where von Spakovsky started whistling. He claimed to the Senate Rules Committee that in writing the anonymous article, he obtained approval of ethics officials at DOJ before publishing it. He hesitated, however, when asked if he received the approval in writing from the DOJ ethics office. He never produced such written ethics approval, of course, because none existed. Yet he told Senators that he followed all DOJ procedures, leaving them with the impression that writing the anonymous article was approved, when it wasn’t. But there’s much more. Mr. von Spakovsky’s testimony was particularly misleading as it related to the Texas congressional redistricting case. During his testimony, von Spakovsky told Senator Feinstein that the decision of DOJ to preclear the Texas map was the legally correct one and the subsequent decision by the Supreme Court of the United States striking down a portion of that plan bore that out. Here, his testimony was not only false, he misled Senators by claiming that the basis on which the DOJ career staff recommended an objection was different than what the Supreme Court decided. Von Spakovsky testified that when the Supreme Court decided the Texas case, the Court overturned one district “based on a compactness argument that is not a consideration under section 5.” Putting aside that there is no constitutional or federally mandated requirement of compactness, von Spakovsky was just plain wrong. His testimony easily led Senators to believe that the considerations before the Department of Justice during the preclearance phase had nothing to do with what the Supreme Court ultimately decided. But in fact, the facts on which the Supreme Court struck down District 23 in the Texas case were the same ones as those which the career professionals at Justice had found during their preclearance review—namely, that the plan eliminated a Latino opportunity district, District 23. Thus, von Spakovsky was simply wrong when he testified that “court cases show that the decision made by the Department was the correct one.” In fact, the opposite is true: the career professionals spotted the elimination of District 23 as a violation of Section 5 of the VRA because it retrogressed minority voting strength. The Supreme Court later struck it down because “Latinos who were in the old District 23…no longer have the opportunity to elect their candidate of choice.” No matter whether the issue was large or small, von Spakovsky’s answers to the senate Rules Committee played fast and loose with the truth. Senator Durbin, for example, asked him if it was true that the Department of Justice’s Voting Section had filed no new cases on behalf of African Americans during his tenure there. An honest and complete answer would have been “no”. Instead, von Spakovsky changed the question by saying that the Voting Section had “filed or litigated” two voting rights cases on behalf of African Americans. Even in changing the question, however, von Spakovsky managed to deceive the Committee with his answer. All one needs to do is look at the background of the two cases von Spakovsky cited. The two cases identified by von Spakovsky were one in Tennessee ( Crockett County) and the other in South Carolina ( Charleston). What he neglected to mention was the fact that in May 2000, seven month before the Bush Administration even took office, the Department of Justice had sent Crockett County a letter informing the county that a Section 2 lawsuit had been approved against the County and offering to resolve the lawsuit by settlement. Subsequent discussions produced a settlement which was then filed with the court in April 2001. So the lawsuit was approved under the Clinton Administration and resolved just a couple of months after Bush took office in January 2001. But von Spakovsky led the Senators to believe he was to be given some credit for that case. Again, Senator Durbin asked about cases filed during von Spakovsky’s tenure, which was from 2003 to 2005, and the Crockett County case preceded his tenure by two years! The second case cited by von Spakovsky involved a lawsuit against Charleston, South Carolina. Here again, the Charleston lawsuit was filed during the Clinton Administration. It is true that the Department of Justice continued to prosecute the case after the Bush Administration took over. But here again, the lawsuit was brought two years before von Spakovsky’s DOJ tenure, and was a case brought by the Clinton Administration. Other examples of von Spakovsky’s misleading testimony were cited by the former career professionals from DOJ who wrote to the Senate Rules Committee after von Spakovsky testified. They wrote that von Spakovsky attempted to paint a picture of his role in the Civil Rights Division's front office as one of a simple ‘middle manager,’ merely providing legal advice and recommendations to his superiors and then delivering the decisions made by his superiors to Voting Section staff. As they noted, von Spakovsky operated as the de facto Section Chief in charge of the Justice Department’s Voting Section. Perhaps the most glaring example of how von Spakovsky misled the Senators on the Rules Committee was when he testified that he worked very closely with the career staff in the Voting Section to craft a letter to Arizona officials in April 2005 about the Help Americans Vote Act.[1] He told the Senate that he consulted with the attorneys in the Voting Section: “So this was not me acting as myself. You know, I would have been consulting with the other [Voting Section] attorneys there to do it.” Transcript of Senate Rules committee, June 13, 2007 at 33-34.[2] Former DOJ career attorneys contradicted von Spakovsky, and said that, contrary to his sworn testimony, von Spakovsky did not seek information or input from them regarding the Arizona letter. Following his testimony, von Spakovsky submitted written answers to follow-up questions from the Senators on the Rules Committee. Senators, of course, called on von Spakovsky to address this clear contradiction. In his answers, von Spakovsky was forced to admit that what he told the Senators was wrong, stating: “As I recall, I may not have consulted with the Voting Section prior to drafting the first [ April 15, 2005 Arizona] letter.” See http://rules.senate.gov/hearings/2007/Spakovsky1.pdf Mr. von Spakovsky also used a selective memory to evade other hard questions. In doing so, Senators never got a complete picture of the many dirty deeds that von Spakovsky performed while at DOJ. Let’s take a look at one matter about which von Spakovsky claimed he could not recall any details. Former Minnesota U.S. Attorney Tom Heffelfinger became concerned when Minnesota’s secretary of state directed in 2004 that tribal ID cards could not be used for voter identification by Native Americans living off reservations. Heffelfinger felt the Voting Section of the Justice Department should investigate whether the directive was discriminatory. According to former Justice Department Voting Section chief Joseph Rich, a 37 year veteran of DOJ before he left in 2005, it was Hans von Spakovsky who effectively shut down the DOJ investigation even before it began. It is likely that the directive would have disenfranchised thousands of Native American voters had a federal court not found it discriminatory. All this is bad enough, but von Spakovsky’s testimony about the Minnesota matter is laced with even more deception. When asked about squelching the Minnesota investigation, von Spakovsky told Senators that he thought it made sense to restrict the Voting Section’s investigation to contacting the Secretary of State (a Republican) rather than the Hennepin or Ramsey County Boards of Elections who ha filed the complaint with U.S. Attorney Heffelfinger. von Spakovsky represented to senators that he restricted the contact out of an interest in expediency, because the Secretary of State had issued the directive. However, the former Voting Section chief has expressly contradicted von Spakovsky on this point, stating that von Spakovsky told him that it would be better to call the Secretary of State to avoid a leak. (It is important to note that interviewing Hennepin and/or Ramsey county election officials was necessary to find what they had actually been told by the Secretary of State.) Here again, von Spakovsky has attempted to hide the ball from Senators about what he was up to. Finally, there is a considerable record of actions taken by von Spakovsky that he failed to acknowledge in his testimony before the Senate. He avoided talking about these things by invoking privileges so he would not have to answer hard questions about actions he took. Yet he conveniently failed to invoke that same privilege when he wanted to talk about a case or matter in which he did not believe his actions were improper. For example, von Spakovsky defended his enforcement record by alluding to two Section 2 cases that had been approved internally at DOJ but were never filed in court due to a subsequent change in circumstances. These internal DOJ matters are never discussed and often the Department of Justice fails to even acknowledge they exist, asserting executive privilege. Despite this policy, von Spakovsky invoked them in an effort to show he really was enforcing the law. Yet when it came to the controversial Georgia voter ID matter or the Texas congressional case, where von Spakovsky’s actions were clearly objectionable, he hid behind the privilege. Interestingly, von Spakovsky did not mention to Senators the several matters in which Voting Section career staff recommended lawsuits be brought on behalf of African-American and other minority voters (each with a strong evidentiary record requiring action) that he and other Bush political appointees either refused to approve, or unnecessarily delayed for as long as a year and a half. Nor did he mention an important policy change concerning approval of investigations under Section 2 of the Voting Rights Act. Until Mr. von Spakovsky came to DOJ, the Voting Section chief had authority to approve such investigations, but at about the same time as his arrival in the front office in 2003, the policy was changed, requiring Mr. von Spakovsky's approval for all such investigations. This led to far fewer investigations and occasions when requests to merely begin an investigation into a matter were rejected by him. As the United States Senate gets ready to vote on this nominee, one would hope that even if the Senators are willing to overlook his long history of undermining voting rights, they should be concerned that this nominee was not truthful to them. It’s one thing for a nominee to have a poor record and then attempt to defend it. Senators at least know in that situation the scope and depth of what a nominee has done and can then decide if they should vote in favor of the nominee anyway. It’s quite another when a nominee does everything he can—including half truths, misstatements of fact, misleading testimony, and answers that deceive rather than explain—to manipulate the record so that his misdeeds cannot be fully explored. But that is exactly what we have here. Just based on what we know already, and there is literally a mountain of evidence that von Spakovsky undermined minority votes and injected raw partisan politics into the law enforcement work at DOJ, this nomination should fail on the merits. But it should also fail because the nominee has not dealt with the Senators in a manner that is truthful. And that should matter to the Senators just as much.
[1] The April 15, 2005 letter to Arizona opined that the state did not need to provide provisional ballots to voters who did not present identification when voting. This was a reversal of the Division's previous interpretation, and in direct conflict with the letter and spirit of the Help America Vote Act. Five months later, Mr. von Spakovsky was forced to abandon his misinterpretation of the law after a disagreement with the Election Assistance Commission. [2] The transcript is available here: http://rules.senate.gov/hearings/2007/Spakovsky1.pdf |
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