WASHINGTON (CN) — Drawing on litigation and analysis of policy reversals in the Justice Department’s Civil Rights Division, a panel of civil rights experts told Congress Thursday an unprecedented lack of apolitical senior leadership in the department is beyond troubling 40 days out from an election.
Created in 1957 to ensure that the civil and constitutional rights of all Americans are properly enforced by the federal government in every state, the Civil Rights Division mission is widespread. The body is premised on investigating and resolving abuses of voting rights, matters of housing and lending discrimination, and racial and gender prejudice.
But under attorneys general appointed by President Donald Trump, according to House Democrats overseeing the department’s conduct in a hearing held Thursday, whether Jeff Sessions or current head William Barr, the department in the last four years has actively reversed or outright abandoned positions it long held on crucial civil rights protections.
“One of the purposes of justice is to bring peace to communities, yet Attorney General Barr has refused to allow the Civil Rights Division perform what its function is supposed to be,” said Representative Steve Cohen, a Tennessee Democrat and chair of the House Subcommittee on the Constitution, Civil Rights and Civil Liberties.
Michael Walden, president of the Brennan Center for Justice, testified Thursday the refusal is quantifiable.
One need only compare the number of times previous administrations — be they Republican or Democrat — actively pursued enforcement of the Voting Rights Act.
Voting rights enforcement claims were brought by the division under President Barack Obama 32 times and 69 times under Republican President George W. Bush.
In terms pursuing actual enforcement, and not just filing a claim, the Trump administration has not brought a “single enforcement action,” Walden said.
In fact, the division has only filed claims in three cases, two of which involved the Uniformed and Overseas Absentee Voting Act. They were settled. The other was an intervening complaint filed by the department to force the state of Kentucky to remove inactive voters from its rolls.
Under the Trump administration, the division has also reversed a position it held for six years stating that Texas voter ID laws — among the strictest in the country — are intentionally discriminatory towards minorities.
“Something that was deemed to be discriminatory and illegal for years suddenly, overnight, became acceptable and OK. Was that because the practice changed or because the political overseers changed? Sadly, the latter interpretation is more likely,” Walden reflected Thursday.
Right after Trump’s inauguration, Thomas Wheeler — former general counselor to Vice President Mike Pence when Pence was governor of Indiana — was appointed to lead the civil rights office at the Justice Department. Wheeler is a public proponent of voter ID laws and for five years sat on Indiana’s election commission, where he regularly lauded their application and suggested, contrary to the widely held opinion of most election experts, that ID laws boost voter registration, not deter it.
Around the time Wheeler was in the role — he has since been replaced by Eric Dreiband, former general counsel to the Equal Employment Opportunity Commission under George W. Bush — the department also significantly shifted how it uses, if at all, consent decrees.
A consent decree has long been a tool for civil rights enforcement because it provides recourse and remedy for parties in conflict. It can also be stronger than a settlement because it forces judicial review until grievances are resolved. Under Trump, former AG Sessions established a sunset on consent decrees and attempted to delay for months a decree painstakingly reached by the city of Baltimore and its police department.
NAACP president Sherrilyn Ifill also highlighted to lawmakers Thursday the abandoning of pattern and practice investigations under Attorney General Barr. The investigations can be used to assess the presence of systemic problems inside of a police department. Barr would not permit such a probe into the Minneapolis Police Department after the police killing of George Floyd this past May.
“They reversed themselves in the Baltimore case and were stopped from doing so from the federal judge. They filed a statement of interest in Chicago when the state of Illinois filed its own pattern of practice investigation against the Chicago police department,” Ifill said, noting that the statement of interest suggested in effect that Illinois should not enter into a consent decree. “The department wasn’t even part of that case but they wanted to frustrate the efforts of the state of Illinois to do what the department had failed to do.”
Under Barr, the Justice Department also reversed a long-held position on anti-discrimination workplace protections for LGBT Americans, filing an amicus brief with the Supreme Court in August 2019. The brief argued laws prohibiting discrimination by employers against their employees did not extend to sexual orientation. It argued the same in relation to discrimination against transgender people.
The civil rights division’s assistant attorney general Eric Dreiband was invited by the committee to testify Thursday but he did not appear.
Stephen Boyd, DOJ assistant attorney general, informed the committee ahead of Thursday’s hearing that Dreiband would not attend because the last time Barr appeared before lawmakers, he was “muzzled” with “excessive” interruptions from Democrats.
“Apparently it is too much for DOJ to stomach the thought that when the AG orders teargassing of peaceful protesters, repeatedly interferes in criminal investigations to protect the president and actively foments distrust in an upcoming election, he might get some pressing questions when he comes before Congress,” Representative Jerry Nadler, a New York Democrat, lamented Thursday.
Trump’s refusal just 24 hours ago to commit to a peaceful transfer of power should he lose the election this fall seemed to magnify concerns some lawmakers have with the division and its ability to ensure a free and fair voting experience for Americans this November.
On Fox News in August, Trump threatened to send “sheriffs” and “law enforcement” to polling places in order to weed out people he claims — without any evidence — will show up to commit voter fraud. Barr defended Trump’s statements during an appearance on CNN on Sept. 2, stating that no official guidance was in place but if there was a specific “danger” to investigate, sending federal agents was not an impossibility.
“Federal forces can be used with limited circumstances to protect federal property,” Waldman told Representative Sylvia Garica, a Texas Democrat who aired concerns that ICE or law enforcement would be sent by the Trump administration to intimidate voters at the polls in Texas this year. “When they stray beyond that, when they go into polling places, it raises other legal issues.”
In the past, Garcia said, she would know exactly what to do if these fears were being raised.
“We would call the Justice Department,” she said. “But now we fear calling them because we aren’t sure what they will or will not do.”