Obama's Enforcer (9 page)

One of the lawyers hired for the Voting Section by the Obama administration was Dan Freeman, a former ACLU attorney with no experience in the voting area. He boasted on his Facebook account that he had started the crowd booing Representative Paul Ryan at President Obama's 2013 inauguration. Although such public displays of political bias are extremely damaging to the reputation of the division and its ability to maintain even the appearance of impartiality, the division did nothing publicly to disavow Mr. Freeman's conduct or to discipline him. Why would it when the political appointees within the division and almost all of the career staff no doubt applauded Freeman's behavior and saw nothing wrong with it?

Another graphic example is Anurima Bhargava, who was hired to be the career civil service head of the Educational Opportunities Section of the division. She is responsible for the appalling motion filed in August 2013 against Louisiana trying to stop its school voucher program, which helps poor kids get out of failing public schools, because it allegedly violated a forty-year-old desegregation order. It is a move that even the liberal
Washington Post
called an attempt “to trap poor, black children in ineffective schools.”
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Even though 9 out of 10 of the students who use the vouchers are black, the division claimed that the program was discriminatory because children leaving the bad schools would change the schools' racial makeup. As the
Washington Post
says, it is “downright perverse” that the Obama administration would “use the banner of civil rights to bring a misguided suit that would block these disadvantaged students from getting the better education opportunities they are due.”

But Bhargava has a history of views on racial preferences and racial quotas that appear to be more important than a quality education for poor children, and was hired by the administration from the NAACP Legal Defense Fund precisely because of those views. She pursued numerous cases while at the NAACP seeking to expand the use of racial quotas in public schools. At a forum at the United Nations on minority issues, Bhargava told the attendees that public school systems should use the race, language, immigration status, and religion of students to assign them to schools. It is par for the course for the Holder Justice Department to hire as the head of the division's education section such an appalling racialist who believes it should be legal to discriminate on the basis of race, religion, and other factors in an attempt to create her preferred progressive social outcome.

Since Eric Holder has been in charge, the division has brought numerous cases based on shaky legal theories like the Louisiana voucher case. For example, the division has filed a series of high-profile lawsuits against bankers and mortgage lenders. The law underlying these suits, the Fair Housing Act, requires that the government prove intentional discrimination. In spite of this legal requirement, the division has brought multiple suits based not on evidence of intentional discrimination, but rather on statistical evidence that supposedly shows a “disparate impact” on certain minority groups. These include cases against SunTrust Mortgage, Countrywide Financial, and Wells Fargo.

The banks chose to settle rather than fight the suits, though, out of fear of being labeled “racist” in court even though the dubious “disparate impact” theory “remains on legally unsound ground.”
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Holder also used these settlements to funnel money to liberal, ACORN-type advocacy groups. For example, the settlement with the AIG Federal Savings Bank required the payment of $1 million to an unrelated “qualified organization” (as decided by the Justice Department) to conduct social programs.
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Perez was so concerned about the disparate impact theory being challenged in court that he secretly engineered a quid pro quo deal with the city of St. Paul, Minnesota, in 2011 to void such a challenge. The move was so extraordinary that the House Committee on Oversight and Government Reform launched an investigation that detailed Perez's unethical conduct.

St. Paul had a case pending before the Supreme Court, in which the division was not even a party, and which would have determined the validity of the disparate impact theory. Most legal scholars believed the Court was going to rule against the theory, undermining the “entire legal foundation of [Perez's] political campaign of suing banks for discrimination based on dubious statistical evidence.”
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At the same time, the Justice Department's Civil Division, a completely separate division of the department and not under Perez's authority, was pursuing two claims against St. Paul under the federal False Claims Act that could have netted the American taxpayer $180 million for the city's fraudulent certifications made to obtain federal housing grants. The Civil Division lawyers thought this would be an easy case to win because St. Paul's certifications “were actually more than reckless and that the City had actual knowledge that they were false.”
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St. Paul's case before the Supreme Court, on the other hand, involved the city trying to “force slumlords to adhere to housing codes, because low-income tenants, including minorities, were living in apartments with rats and inadequate heating.”
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The slumlords were trying to evade their obligations to improve living conditions by claiming that the housing codes intended to protect residents had a “disparate impact” on their minority tenants.

Ordinarily, the Justice Department would have no control over the course of the suit, since it was not a party; the dispute was between St. Paul and private parties. Similarly, Perez had no authority over the Civil Division litigation. However, in an unprecedented action, Perez told St. Paul's lawyers that the Civil Division would agree to drop the False Claims Act claims in exchange for St. Paul dropping the slumlord case. As the
Wall Street Journal
summarized, Perez “intervened to undermine two civil complaints against the City of St. Paul in order to get St. Paul to drop a Supreme Court case that might have blown apart the legal rationale for his dubious discrimination crusade against law-abiding businesses.”
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Perez tried to hide the quid pro quo deal by directing the lawyers in the Civil Division not to mention the deal in their internal case files, and he used his own private email account to secretly arrange the deal with St. Paul's lawyers in violation of the Federal Records Act (he apparently illegally sent hundreds of private emails on division business). Thus, his disparate impact theory stayed alive.

The Civil Rights Division brought questionable cases in other areas as well. For example, Perez launched a series of abusive cases under the Freedom of Access to Clinic Entrances (FACE) Act that were intended to intimidate the pro-life movement. This federal law was passed to prevent physical obstruction or the use or threat of force outside abortion clinics. But the statute specifically protects the First Amendment right of “expressive conduct,” including peaceful demonstrations. In 2011, the division tried to get an injunction against a pro-life activist, Angel Dillard, who had merely written a letter to a doctor who was planning on opening an abortion clinic in Kansas. The federal court denied the request because Dillard's activities were protected by the First Amendment. After two years of litigation, in August 2013, the judge dismissed the prosecution, finding that the government had produced no evidence of motive, intent, or wrongdoing that violated the law.

Dillard's letter simply tried to persuade the doctor that her actions were wrong based on “arguments from Scripture, appeals to conscience, and the practical disadvantages and difficulties associated with such a clinic” according to the judge.
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The Wichita Police Department had concluded there was no threat against the doctor and the FBI had also recommended against a Justice lawsuit. In fact, the FBI told the Justice Department “there was nothing there.” The FBI was “frustrated by the suit . . . they felt this was undermining the trust and the relationship that they were trying to develop with people who were not extremists but were still pro-life.” DOJ's case, according to the judge, was “speculation piled on top of speculation” and “fatally flawed” because it lacked any proof.

Another egregious FACE Act prosecution was against Mary Susan Pine, who was conducting peaceful sidewalk counseling outside an abortion clinic in Florida, something she had been doing for many years.
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The government in its complaint contended Pine obstructed access to the clinic, citing a witness who supposedly observed the obstruction. However, the witness turned out to have testimony totally opposite—that Pine did not obstruct anyone at the clinic. The division lawyers did not attempt to preserve videotape evidence from surveillance cameras outside the clinic that would have showed exactly what happened, and the recordings were destroyed by the clinic.

In 2012, a federal judge in Florida threw out the case. The nearly total lack of evidence of any violation of the law and the “negligent and perhaps even grossly negligent” behavior by division lawyers in not preserving crucial evidence in the case led the judge to wonder whether the prosecution of Pine was the “product of a concerted effort between the government and the [abortion clinic], which began well before the date of the incident at issue, to quell Ms. Pine's activities” rather than to enforce the statute. In other words, the judge believed that Pine may have been targeted for her political beliefs. “The Court is at a loss as to why the Government chose to prosecute this particular case in the first place,” the judge wrote at the conclusion of his ruling. American taxpayers were forced to pay $120,000 in attorneys' fees and costs to Pine.

Why would Eric Holder bring these frivolous cases? Because a pro-abortion ideology is driving enforcement of the FACE Act, not the objective, unbiased, nonpartisan interests of justice and equal protection under the law. The pro-abortion views of Holder and liberals inside the Justice Department led them to use a federal statute to attack these pro-life activists who were engaged in First Amendment–protected activity. Even though these particular suits were unsuccessful, this misuse of a federal statute intended to stop violence at abortion clinics may have achieved its goal. As the judge observed in the Kansas case, “due to a chilling effect of calls and visits from the FBI, and the filing of the present action by the Department of Justice . . . it is utterly unsurprising that Dillard has ceased political activity she might have otherwise undertaken.”

In a similar vein, demonstrating the Obama administration's antipathy to religious freedom, were the division's dubious legal arguments in
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.
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The Justice Department tried to convince the Supreme Court that the religious freedom clause of the First Amendment did not protect the hiring decisions of a church. This was such an extreme position that all nine justices of the Supreme Court disagreed, finding the arguments made by DOJ “untenable.” The Court could not accept “the remarkable view that the Religion Clauses have nothing to say about a religious organization's freedom to select its own ministers.” Even the Obama administration's former solicitor general, Justice Elena Kagan, joined a particularly powerful concurring opinion with Justice Samuel Alito rebuking the legal position advanced by the administration.

In another example of the mismanagement of its enforcement responsibilities and the incompetence of too many of its newly hired political lawyers, the division was forced to pay the state of Arkansas $150,000 in attorneys' fees and costs in 2012 for a failed prosecution under the Civil Rights of Institutionalized Persons Act.
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Once again, the judge found almost no evidence to support the division's claims against the Conway Human Development Center, an institution for developmentally disabled individuals operated by the state of Arkansas. The suit was filed even though there had not been a single complaint by residents of the center or their families. But the suit followed the liberal view on “deinstitutionalization” that believes that all such state facilities should be closed. It is that same ideology that has led to the closing of many state-run mental institutions and the flooding of our streets with the mentally ill.

The federal judge was harsh in his criticism of the division's case, calling into question the basis for the lawsuit and assailing the caliber of the government's witnesses—calling them “unpersuasive . . . [and] not qualified.” Concerned parents and guardians opposed the division's lawsuit and the judge found that the government was “in the odd position of asserting that certain persons' rights have been and are being violated while those persons—through their parents and guardians—disagree.” This meritless lawsuit was dismissed with prejudice. This case followed another lawsuit the division brought against Arkansas's entire mental health system that was also dismissed because of the division's failure to comply with the basic statutory requirements for filing.

None of this is really a surprise. During the Clinton administration, the division was forced to pay more than $4 million in attorneys' fees and costs in eleven meritless cases the division filed that were thrown out by federal courts. One of these cases demonstrates “the disappointing lack of professionalism” in the division. According to the U.S. Court of Appeals for the Eleventh Circuit:

A properly conducted investigation would have quickly revealed that there was no basis for the claim that the Defendants were guilty of purposeful discrimination against black voters. . . . We can only hope that in the future the decision makers in the United States Department of Justice will be more sensitive to the impact on racial harmony that can result from the filing of a claim of purposeful discrimination. The filing of an action charging a person with depriving a fellow citizen of a fundamental constitutional right without conducting a proper investigation of its truth is unconscionable.
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