The New Black Panther Story: Light on Facts, Heavy on Echo


Last week, I found myself in the crosshairs of conservative ire because a news analysis I wrote didn't take the allegations of voter intimidation by the New Black Panther Party story as seriously as conservatives felt it should.

According to the more sensational takes circulating in conservative media and legal circles, the story goes this way: two imposing black men, one with a billy club, stood outside a Philadelphia polling station on Election Day 2008 and scared off voters. The Bush administration had every intention of prosecuting these men to the fullest extent of the law, but when the Obama administration took over, it quickly dropped the charges, letting the men off from what should have been an open-and-shut case. Why? Because liberals in the department have an avowed policy of not prosecuting cases with white plaintiffs and black defendants.

Here's the rub: the most serious claims in that narrative come from one man, former Justice Department lawyer J. Christian Adams, who joined the department in 2005 and quit in protest over the handling of the New Black Panthers case in June 2010. No other corroborating evidence has been found, and no other whistle-blowers with direct knowledge have come forward to support Adams's claims. Since Fox News's Bill O'Reilly complained that I didn't "know what [I] was doing," I figured I'd go straight to the source and talk to Adams himself to discuss his allegations.

First, though, the undisputed facts: On Nov. 4, 2008, Republican poll watchers spotted two members of the New Black Panther Party—a fringe black supremacist group not affiliated with its 1960s namesake—outside a Philadelphia polling station in a predominantly black neighborhood. One was carrying a billy club. Police were summoned and escorted the men away (one was caught on video shouting racist slurs as he left), although no voters reported having been intimidated (Fox News's Megyn Kelly, a lawyer who has made the case a personal cause célèbre, has tried to hedge this by arguing that a poll watcher was intimidated, although this obviously isn't the same thing). The Bush-era Department of Justice considered criminal charges against the two men, the party, and its chairman, then opted for a civil suit. After the Obama administration took power, Justice obtained an injunction against the man with the baton from displaying a weapon near a polling place on election days and dropped the rest of the civil charges in May 2009.

By summer 2009, the Commission on Civil Rights—a bipartisan, independent body not affiliated with the Justice Department, whose members are appointed by the president, the president pro tempore of the Senate, and the speaker of the House—had begun looking into the case, and commissioners formally voted to open an investigation in September 2009. Things didn't truly blow open, however, until Adams's June 4 resignation. Writing for the conservative site Pajamas Media shortly after, he wrote, "The Department has repeatedly claimed the 'facts and law' did not support the case—which of course is false. Others have speculated about a White House involvement. But I believe the best explanation for the corrupt dismissal of the case is the profound hostility by the Obama Civil Rights Division in the Justice Department towards a race-neutral enforcement of civil rights laws." Testifying on July 6 before the Commission on Civil Rights, Adams said his colleagues repeatedly complained about having to enforce the law in cases, particularly in the Deep South, where blacks were accused of discriminating against whites. All told, Adams has written six items for Pajamas on the topic, as well as items on his own site. And he's taken star turns on Kelly's Fox News program.

The problem with Adams's claims is that they're not independently verifiable: those who believe Justice has a systematic bias are those who believe him, while the skeptics are those who either don't believe Adams or would like to see further evidence.

Take, for example, Adams's assertion that "of course" the Justice Department had a strong case. In sworn testimony and elsewhere, Justice officials have pointed out that since the law in question, section 11(b) of the Voting Rights Act, came into force in 1965, there have been only three successful prosecutions, given that, as Assistant Attorney General Tom Perez put it, "the standards for proof are high." In his testimony before the Commission on Civil Rights [Word document, page 22], Adams also suggested that there were "indications" that the New Black Panthers had pulled similar stunts elsewhere, although he hasn't offered any evidence for that, nor has anyone else.

Adams also says that Julie Fernandes, a deputy assistant attorney general appointed by the Obama administration, instructed employees not to prosecute cases with white plaintiffs and black defendants. But Adams has not indicated where or when she gave the instruction, or whether he was present. Justice Department spokeswoman Tracy Schmaler denied that any such order was ever given, telling NEWSWEEK: "The Department makes enforcement decisions based on the merits, not the race, gender, or ethnicity of any party involved." The department declined NEWSWEEK's request to speak with Fernandes.

In an interview with Fox's Kelly, who has followed the case perhaps more closely than anyone else, Adams admitted that he had not personally witnessed many of the events he described (including the complaints about enforcing laws when plaintiffs were white), and refused to name any names—making it difficult to substantiate his claims.

So is there any evidence that the Obama Justice Department has pursued white defendants while leaving black ones alone, even if Fernandes never made such a statement? Debate on that question comes down to two other Voting Rights Act cases. The most comparable case to the New Black Panther Party is a 2006 episode in which three members of the Minutemen, the anti-immigration vigilante group that sprung up in some border states, allegedly intimidated Latino voters at a Pima, Ariz., polling station. The would-be defendants were white, and the section of the Voting Rights Act that applied—Section 11(b)—was the same. "In that instance, the Department declined to bring any action for alleged voter intimidation, notwithstanding the requests of the complaining parties," Assistant Attorney General Perez told the Commission on Civil Rights. Liberal commentators say the case shows that not all voter-intimidation cases result in trials.

Adams and others have repeatedly cited United States v. Brown as a case with a black defendant and white plaintiff that Justice attorneys opposed, and Adams has cited derisive comments made by colleagues about the case. But in that case, the Department of Justice ruled that Noxubee County, Miss., and Noxubee County Democratic Party Chairman Ike Brown were working to erect barriers to whites voting (the case fell under section 2 of the Voting Rights Act, which covers discrimination and prerequisites for voting, rather than section 11(b), which deals with voter intimidation). Even if some Justice Department lawyers opposed it, the department pressed the case and won a court ruling that the Voting Rights Act applies to all races equally. The Justice Department then entered into a consent decree with Noxubee County to stop its illegal practices. Skeptics of Adams's allegations say that proves the department is willing to pursue black defendants.

In fairness to Adams, there is one man who might be able to back up his stories—and one who figures prominently in some of them, but he's not talking. That's Christopher Coates, a career attorney who led Justice's voting-rights section from January 2008 to January 2009. Coates gave a speech to employees at a going-away party that has been much celebrated among Justice critics because of what observers say was an impassioned defense of his decision to pursue both the Ike Brown and New Black Panthers cases, the two with black defendants. The party marked Coates's departure from Washington to a Justice Department posting in South Carolina, a transfer Justice says he requested. But Coates can't testify before the Commission on Civil Rights because the department has refused to let him comply with a subpoena, much to commissioners' consternation. The department cites longstanding policies for the gag on Coates, and also declined to make him available to NEWSWEEK.

I wanted to speak with Christian Adams to try to nail down some of the specifics that he hasn't covered in his writing or interviews. I tried e-mailing him at an address on his Web site—an address whose mail I know he reads because other journalists have gotten responses from him there. I also tried calling Pajamas Media, hoping it could help me get in contact with him, but phone calls there were unreturned, too. I also tried using Martindale, a database that includes virtually every lawyer in the country, but Adams's profile on the site hasn't been updated since he left the Justice Department.

Those methods having failed, I searched for a number using the Internet and public records databases. A number listed for him in Alexandria, Va., was disconnected, and a search for a number at what appears to be his address there came up as unlisted.

So with Adams's account open to so many questions, and without other witnesses to corroborate it, it's no wonder that when pundits like Bill O'Reilly complain about coverage, it's not about the facts of the case: it's about the alleged bias of news outlets or about ad hominem attacks on reporters. For example, O'Reilly spent three minutes discussing not the substance of my story, but instead attacking my age and showing five-year-old pictures of me he apparently found on the Internet. (Hi Bill! You might want to check your facts, too. If you do another segment on me, I'm 23, not 24, and I'd be happy to send you a more recent photograph).

Instead, O'Reilly and Kelly have been repeating Adams's story over and again. Once Adams has appeared on cable news, or testified before the Commission on Civil Rights, it's not just the testimony of a disgruntled conservative former Justice employee; the "facts" are legitimized by being repeated by attorney Kelly, news personality O'Reilly, and members of the Commission on Civil Rights. When the story is challenged, Kelly doesn't argue facts but rather offers infuriated and irrelevant defenses of her own résumé and attacks on guests. With each repetition, Adams's claims gain a veneer of credibility, even though the whole thing basically boils down to uncorroborated statements by a former Justice employee—a man who won't make himself available to answer questions from a NEWSWEEK reporter.

As the Shirley Sherrod scandal this week ought to have taught everyone, it's perhaps best to wait until all the information is on the table. The Commission on Civil Rights is still in the midst of a months-long investigation that will presumably offer a comprehensive view of the matter.

In the meantime, coverage of the New Black Panther case on Fox News and in other right-wing outlets is a classic example of a media echo chamber. But journalism it ain't.