A federal grand jury has subpoenaed several former senior Justice Department attorneys for an investigation into the politicization of the Department's own Civil Rights Division, according to sources close to the investigation.
The extraordinary step by the Justice Department of subpoenaing attorneys once from within its own ranks was taken because several of them refused to voluntarily give interviews to the Department Inspector General, which has been conducting its own probe of the politicization of the Civil Rights Division, the same sources said.
The grand jury has been investigating allegations that a former senior Bush administration appointee in the Civil Rights Division, Bradley Schlozman, gave false or misleading testimony on a variety of topics to the Senate Judiciary Committee.
Sources close to the investigation say that the grand jury is also more broadly examining whether Schlozman and other Department officials violated civil service laws by screening Civil Rights attorneys for political affiliation while hiring them.
Investigators for the Inspector General have also asked whether Schlozman, while an interim U.S. attorney in Missouri, brought certain actions and even a voting fraud indictment for political ends, according to witnesses questioned by the investigators. But it is unclear whether the grand jury is going to hear testimony on that issue as well.
One person who has been subpoenaed before the grand jury, sources said, was Hans von Spakovsky, who as a former counsel to the Assistant Attorney General for Civil Rights was a top aide to Schlozman. An attempt to reach Spakovsky for comment for this story was unsuccessful.
Earlier this year, Spakovsky withdrew his name from nomination by President Bush to serve on the Federal Election Commission after repeatedly claiming a faulty memory or citing the attorney-client privilege to fend off questions from senators about allegedly using his position to restrict voting rights for minorities -- and that he hindered an investigation of Republican officeholders in Minnesota accused of discriminating against Native American voters.
Three current and former Justice Department officials were questioned by investigators about allegations that Schlozman--with Spakovsky advising and assisting him-- made decisions whether to hire and fire attorneys in the Civil Rights Divison on the basis of their political affiliation.
Another person subpoenaed by the grand jury, according to several sources, was Jason Torchinsky, who, like Spavosky, was also a Counsel to the Assistant Attorney General for Civil Rights.
Torchinsky is not under investigation for any wrongdoing himself, but rather subpoenaed as a witness in the probe, sources said. Previously, however, Torchinsky had refused to voluntarily answer questions from investigators working for the Justice Department's Inspector General about the politicization of the Civil Rights Divison. Reached at his home on Tuesday night, Torchinsky declined to comment for this article.
Sources familiar with the federal grand jury subpoenas say that they were approved at the highest levels of the Justice Department.
The sources said that investigators working the case as well as senior Department officials were distressed that some of the Justice Department's most senior political appointees refused to co-operate with an investigation by the very Department they once served.
"What does this say for the average person on the street if we want them to co-operate?" said a senior official, "How can we say to the ordinary citizen that you should report crimes, tell the government what you know, when the people who ran the Department of Justice thumb their noses at the system?"
Another federal law enforcement official familiar with the subpoenas said that they believed that senior Justice Department officials had no choice but to approve the subpoenas because to do otherwise would have meant overruling career prosecutors and their actions would appear political if they did. The official also said that political appointees at the top of the Department had to appear to be aggressive in their investigation of the politicization because to do otherwise might lead to calls for a special prosecutor to take over the investigation from them.
A former Justice Department attorney who was subpoenaed said that he believed they had been called before the grand jury as "retaliation" for refusing to talk voluntarily to investigators working for Justice's Inspector General. Current Justice Department employees are required to talk to investigators, while former employees are not.
But sources with first-hand knowledge of the investigation said that the former Justice Department officials were subpoenaed because they had information necessary to the Department's probe and without subpoenas there was no other way to compel their testimony.
During his tenure in the Civil Rights Division, career employees charged that Schlozman disregarded longstanding voting rights law to electorally favor Republicans over Democrats.
Joseph Rich, who was chief of the voting rights section of the Civil Rights Division under Schlozman, told the Boston Globe: "Schlozman was reshaping the Civil Rights Division. Schlozman didn't know anything about voting law. . . . All he knew is he wanted to be sure that the Republicans were going to win."
Schlozman and other Bush administration appointees in the Justice Department claimed that federal law enforcement authorities had been deficient in prosecuting cases of voter fraud. Schlozman and other Bush administration officials--most prominently Karl Rove- claimed that the failure to prosecute purported voter fraud benefited Democrats at the expense of Republicans. But most independent assessments suggest that the vast majority of reports of voting fraud are unfounded.
A study [PDF] by Lorraine C. Minnite, an assistant professor of political science at Barnard College, found that most reports of voting fraud turned out to be "unsubstantiated or false claims by the loser of a close race, mischief, and administrative or voter error." Joseph Rich, who was chief of the voting-rights section in Justice's Civil Rights Division until 2005, told me in an interview: "There is virtually no evidence that voter fraud ever occurs except by individuals and in rare instances."
Democrats and interest groups ranging from the League of Woman Voters to the NAACP to those who protect the rights of the disabled, assert that the White House and Republican activists exaggerate claims of voter fraud as a means to suppress voter participation. Citing allegations of purported voter fraud, the Bush White House has supported state initiatives which would require voters to produce state photo identification at the polls.
In the courts, however, state and federal judges have said that such requirements might discourage voting by minorities, the disabled, the impoverished, students, and the elderly--all segments of voters who traditionally vote in greater numbers for the Democrats.
Von Spakovsky, Schlozman's deputy, who has been subpoenaed to testify before the grand jury because of his refusal to speak to investigators, was also alleged to have to misused his official position by setting aside the law to take actions to help Republican candidates.
When von Spakovsky was nominated to serve on the Federal Election commission, six career officials of the Justice Department's Voting Rights Section, who had worked under him, wrote the Senate asking that he not be confirmed.
The six alleged that "during the 2004 election cycle" von Spakovsky "broke with established Department policy by getting involved with contentious and partisan litigation on the eve of the election. Mr. von Spakovsky drafted legal briefs between the Republican and Democratic parties in three battleground states, Ohio, Michigan and Florida just before the election, all in favor of the Republican party's position." The six career officials further asserted: "These briefs ran counter to the well-established practice of the Civil Rights Division not to inject itself into litigation or election monitoring on the eve of an election where it would be viewed as expressing a political preference or could have an impact on a political dispute."
These briefs, the former Voting Rights attorneys said in their letter, ran counter to the well-established practice of the Civil Rights Division not to inject itself into litigation or election monitoring on the eve of an election where it could be viewed as expressing a political preference or could have an impact on a political dispute. Moreover, in another case between the Republican and Democratic parties which concerned an Ohio law that permitted political parties to challenge voters, he drafted a letter that was sent to the court which supported the Republican Party position even though the law did not implicate any statute that the Department enforces.
During his tenure with the Civil Rights Division, Schlozman also repeatedly clashed not only with career attorneys in his own office but also with federal prosecutors who he did not believe were taking the issue of voting fraud seriously enough.
One of those he clashed with was Todd Graves, the U.S. Attorney in Kansas City, Missouri, a conservative Republican stalwart who excelled in his job, but who also was fired by the Bush administration in March, 2006-- only to be temporarily replaced by Schlozman.
As interim U.S. attorney, less than a week before a tightly contested U.S. Senate race in Missouri in 2006, Schlozman brought an indictment of voter fraud against four workers with a liberal advocacy group, despite the fact that Justice Department guidelines prohibit such indictments so close to election day. Schlozman said that he was justified in his actions because he was afraid that more fraud might take place.
But Robert Kengle, a former deputy chief in the voting-rights section at Justice during the Clinton and Bush administrations, told me in an interview: "They cooked up that there is a general exception to the policy because they wanted to prevent more fraud. But indicting people before the election was not going to change anything. Registration had already closed.... There just wasn't a justification for bending the law."
The Justice Department guidelines state: "Federal prosecutors and investigators should be extremely careful not to conduct overt investigations during the pre-election period or while the elections are underway."
One reason for such a policy, the guidelines say, is that "a criminal investigation by armed, badged federal agents runs the obvious risk of chilling legitimate voting and campaign activities."
In the end, the indictment had to be reissued after the election. In his haste to bring charges, Schlozman had indicted the wrong person--someone with a name similar to the person he wanted to charge.
Murray Waas, The Ninth Man Out: A Fired U.S. Attorney Tells His Story, the Huffington Post, June 4, 2007.