January 22, 2004
No Justice memos

Back when the Justice Department precleared the new Congressional map, the plaintiffs in the federal lawsuit challenging that map claimed that political appointees at Justice had overruled the career lawyers, and they pressed to get Justice to release internal memos which detailed its decisionmaking process. In a move that should surprise no one, Justice has denied that request.

The internal legal opinion, which includes a 73-page narrative and 1,750 pages of accompanying documents, is eagerly sought by 14 Democratic House members from Texas as part of their attempt to halt the GOP redistricting. The new voting map was enacted in October by the Republican-controlled Texas legislature after months of conflict, and Attorney General John D. Ashcroft cleared it in December.

The Justice Department notified the Texas lawmakers last week that it would not release internal documents on the case because they contain "predecisional deliberative material" that is exempt from public information laws, according to a copy of the letter.

The Democrats' lead attorney, J. Gerald Hebert of Alexandria, responded with an appeal to the Justice Department yesterday, alleging that career attorneys had recommended an objection to the redistricting plan, but were overruled by political appointees. Democrats argue that the Texas map violates the Voting Rights Act of 1965 because it eliminates two districts in which minorities make up a majority of the voters.

"Clearly the Department of Justice is stonewalling this request to avoid the embarrassment that will surely ensue when the memorandum is made public," Hebert wrote in his appeal, which was filed with the department's Office of Information and Privacy. "Unfortunately, the political appointees of the Justice Department appear committed to dismantling the Voting Rights Act. They are hiding this report, because it will make their intentions clear."

Department officials have declined to comment on the details of the case, including whether the attorneys assigned to the case had raised objections to it. Sources say the team is under a strict gag order.

"These are internal deliberations, and we would not comment on deliberations that take place in these kinds of cases," department spokesman Jorge Martinez said.

Officials notified the Texas secretary of state in December that Ashcroft "does not interpose any objection to the specified changes" in congressional boundaries enacted by the Republican legislature. Under the Voting Rights Act, any changes to congressional districts in Texas and several other states, primarily in the South, must be approved by the Justice Department.

Well, it's consistent with the overall secrecy fetish in the Bush Administration. I'll give it that. As usual, it gives a where-there's-smoke impression, since after all if there's nothing there you'd think they'd want to demonstrate it. You have to admire their dedication to principle, even if that principle is "move along, nothing to see here".

One further item of interest:

Political analysts have said the map could result in a 23-9 edge in the state delegation for Republicans after the Nov. 2 elections.

Most of the stories I've read concerning the new map talk about a maximal 22-10 split in the delegation, but once in awhile you see 23-9. I don't know who these "politcal analysts" are, but I'd be curious to know which other seat they think is threatened. I'd guess the confusion stems from the fact that Rep. Lloyd Doggett's district was targeted for elimination and his district was dismantled, but in its place was created the 25th CD, which is (IIRC) about 70% Democratic and which is where Doggett is running for reelection. Doggett may lose in the primary, but the seat should be safe for the Dems.

Not that the GOP isn't shooting for it as well, even to the point of possibly bullying the "wrong" GOP primary contender to drop out.

Last week, as Doggett and his Democratic opponent, former State District Judge Leticia Hinojosa of McAllen, claimed dueling endorsements on each other's home turf in the district that stretches from Austin to the Rio Grande Valley, not much attention was paid to the lone GOP candidate, a Mission minister named Regner Capener.

That all changed Friday, when [Austin Republican Rebecca Armendariz] Klein filed to run and Capener got a call from someone who told him he was working on behalf of the White House, asking him to step aside.

The White House denies it made the call, but Capener thinks it was an operative of the president's political adviser, Karl Rove. The caller told him that as a Hispanic woman, Klein would make a better candidate and would be favored with significant GOP donations, Capener said.

It made Capener angry, and with that, the race became even more enmeshed in ethnic politics and regional geography than before.

So who knows? I'm not lying awake nights worrying about CD 25, but it's a new world out there and anything can happen.

WaPo link via Atrios.

Posted by Charles Kuffner on January 22, 2004 to Killer D's | TrackBack

As usual, it gives a where-there's-smoke impression, since after all if there's nothing there you'd think they'd want to demonstrate it.

This statement is way off base. Public entities tend to fight tooth and nail against every single FOIA request. Even if the requested documents make the public entity look good, the public entity does not want to create the precedent that similar documents are not protected from public disclosure. I could give many examples of this.

Furthermore, public entities are particularly loathe to release *any* document related to legal advice. Usually, documents containing legal advice are given the highest protection from public disclosure.

I once wanted to use the FOIA provisions to see how many billable hours to a private attorney a public entity incurred in a legal fight against me. An attorney friend who worked for the city of Houston basically told me to forget it. I would never get access to such documents.

Posted by: Greg V. on January 22, 2004 4:32 PM

Public entities tend to fight tooth and nail against every single FOIA request.

That doesn't make it right. Secrecy should not be the default, and I'd say that regardless of who's in office.

Posted by: Charles Kuffner on January 22, 2004 5:12 PM

I am not passing judgment as to whether or not it is right for public entities to protect documents. I am addressing your allegation that protecting data leads to a where's-there-smoke impression.

Because public entities like to protect all their data, one cannot say that efforts to protect public data from public disclosure implies wrongdoing.

Posted by: Greg V. on January 22, 2004 6:00 PM

Kuff, you got it right when you said this "should surprise no one," but with all due respect, you perhaps had the wrong reason in mind.

I guarantee you that this same request would have been rejected by the Clinton, Bush-41, Reagan, Carter, Ford, Nixon, Johnson, Kennedy, Eisenhower, Truman, Roosevelt, etc. administrations as well.

The degree of "openness" you suggest would actually be extremely counterproductive.

Posted by: Beldar on January 22, 2004 7:40 PM

Hooray. My abortion of a district in the news.

Jesus Christ, DeLay, leave Lloyd alone!

Posted by: norbizness on January 22, 2004 8:44 PM


After sleeping on it, I think I came to an understanding why I have deep-rooted opposition to your allegation that denial of the Justice memo creates a where-there's-smoke impression.

This situation is very similar to a criminal court case when the defendent takes his Fifth Amendment right not to testify. You might say, "If there's nothing incriminating in the defendent's truthful testimony, you'd think he'd want to testify." I'm a little more open-minded as to why a defendent (or Justice in this matter) may not want to provide information to his opponents that they have no right to request. In fact, I can think of many reasons for both our criminal defendent and Justice to keep quiet that have nothing to do with a where-there's-smoke impression.

Would I like to see all criminal defendents testify? Yes! Would I like Justice to release its memo? Yes! But do I draw negative inferences if they don't? I'm not so sure about that. I view this as absence of evidence that I would like to consider. I can't see how I could consider this absence of evidence to actually be evidence of wrongdoing.

Posted by: Greg V. on January 23, 2004 10:13 AM

Would I like to see all criminal defendents testify? Yes! Would I like Justice to release its memo? Yes! But do I draw negative inferences if they don't? I'm not so sure about that. I view this as absence of evidence that I would like to consider. I can't see how I could consider this absence of evidence to actually be evidence of wrongdoing.

This is a fair point. Beyond my own partisan inclinations, I do believe that the Bush Administration has pushed the boundaries of government secrecy, and that is to everyone's detriment. I believe that it is their extremeness on secrecy (cf, the Cheney energy meetings) that give rise to suspicions of wrongdoing. However, I'll agree that this is a dangerous path to walk. I just wish they'd make it even a little easier for me to give them the benefit of my doubt.

Posted by: Charles Kuffner on January 23, 2004 11:28 AM

I'm not really sure how to interpret your comments. At one level, it seems you agree that no evidence does not mean evidence of wrongdoing. You then attribute your accusation of wrongdoing to your partisanship. However, as a mitigating factor, you cast a little blame on the Bush administration. After all, Vice President Cheney was reluctant to release pre-decision energy policy documents. Far from being a mitigating factor, I see this as an aggravating factor. Apparently this isn't the first time you have accused the Bush administration of wrongdoing despite a lack of evidence. Because you've done it before, you insist the Bush administration make it easier for you to give them the benefit of the doubt (That is, make it easier for you to distinguish between no evidence and evidence of wrongdoing.)

On one point we agree. You have chose a dangerous path to walk.

Posted by: GregV on January 24, 2004 10:38 AM

Then let me spell it out for you. I did not make an accusation of wrongdoing, I made an observation of the appearance of wrongdoing. I trust we can all discern between the two.

I can accept, as Beldar has pointed out, that too much openness would make efficient government operation impossible. That doesn't mean I have to like the level of openness demonstrated in this case, nor does it mean I have to accept where the line is being drawn between necessary secrecy and unnecessary secrecy. Finally, even if I do accept that the Justice Department's decision to not release internal memos is perfectly consistent with its past history, that doesn't mean I have to take their word for it that politics played no role whatsoever in the map's preclearance. I seriously doubt that you would be so trusting if the Justice Department were still run by Janet Reno and had come to a different conclusion about the map.

Posted by: Charles Kuffner on January 24, 2004 11:01 AM

This is getting curiouser and curiouser.

You state that the administration's actions make it appear to you that it has acted wrongly, but you have not made that accusation.

In nearly all cases, I like to have at least *SOME* evidence before I make even accusations of an appearance of impropriety. This is what we have in this case:

1. Gerry Herbert's assertion that some unnamed official has leaked the contents of the internal memo. Herbert has not given us the name of the alleged leaker nor any other evidence to give us *any* indication his assertion is true. Value of evidence: None to very little.

2. DoJ has not released the memo. Value of evidence: None.

I don't care who you are. An unsubstantiated assertion with absolutely no other evidence is *not* a where-there's-smoke situation.

And I would say that regardless of political implications because I value intellectual honesty.

Posted by: Greg V. on January 24, 2004 5:48 PM