Aug 23, 2007 -- CLC Urges DOJ Review of New Prosecutor Guidelines

The Campaign Legal Center is urging a full review and explanation of new guidelines for Justice Department prosecutors that will open the door for partisan abuses of election law enforcement. In a letter today to Assistant Attorney General Alice S. Fisher, Legal Center Executive Director J. Gerald Hebert stressed the need for a full explanation of the changes to the "Federal Prosecution of Election Offenses" manual that was rewritten in the wake of an ongoing scandal involving election eve voter fraud indictments in a battleground state. The revised manual removes barriers to similar prosecutions in the future and would allow political appointees a freer hand in politicizing the Justice Department.

The full letter to the Justice Department is below:

________________________________________________________________________

August 23, 2007

Assistant Attorney General Alice S. Fisher
Department of Justice - Criminal Division
950 Pennsylvania Ave.
Washington, DC 20530-0001

Dear Assistant Attorney General Fisher:

On behalf of the Campaign Legal Center, I am writing to request your review of a new manual for prosecutors that appears to open the door for partisan abuse of election law enforcement by political appointees at DOJ. As you may know I served for more than 20 years as a federal prosecutor of voting rights cases in the Civil Rights Division of the Department of Justice (DOJ).

One of the critical responsibilities of the DOJ is to enforce our nation's voter protection and election laws which are essential to ensuring the integrity of our democratic process and maintaining the public's faith in the credibility of the election process.

Recent reports now indicate that the DOJ has literally re-written the book on voting rights prosecutions. In the new version of the "Federal Prosecution of Election Offenses" manual released in May 2007, three substantive changes were made that would seem to clear the way for the injection of partisan politics into the DOJ's enforcement of election laws in 2008 and beyond. Serious questions have already been raised about abuses of prosecutorial discretion during the past two election cycles and led to Congressional hearings over the firing of U.S. Attorneys. The changes in the new version of the manual give the strong impression that these questionable abuses of discretionary authority have now been sanctioned by this DOJ.

I would strongly urge you, as the person responsible for oversight in this area of DOJ enforcement, to once again review these proposed changes in the manual and ensure they indeed accurately reflect DOJ policy. I also request that you provide publicly a full explanation for why these changes were made, especially considering the fact that no changes had previously been made to the manual since 1995. The Department should also make public who made the decision to revise these sections of the manual, and who authorized and approved the revised language. Finally, the Department should immediately and publicly release all documents that led to these revisions.

As Senate Rules Committee Chair Dianne Feinstein has noted, the changes proposed in the new manual raise significant problems:

1. The new prosecutor's manual allows federal prosecutors to play politics by timing their investigations or indictments on election eve.

The new manual removed language that strongly discouraged investigating voter fraud shortly before an election. The manual, for years, had instructed that DOJ prosecutors "must refrain from any conduct which has the possibility of affecting the election itself," (emphasis added), that investigators should be "extremely careful" regarding their pre-election actions to guard against such an effect, and that "most, if not all, investigation of an alleged election crime must await the end of the election to which the allegation relates." (emphasis added).

The rationale for such a rule is clear - federal prosecutors should not, absent the most extraordinary circumstances, conduct investigations or bring indictments against political actors timed in such a way, or apparently timed in such a way, as to influence an election. The rare exception should be when either the integrity of the election process itself or the rights of voters to participate in the political process are at stake. The newly revised version of the DOJ manual contains no such mandatory restrictions on DOJ investigators and prosecutors.

While the former DOJ policy manual made it clear that "most, if not all" election eve investigations have the possibility of affecting the election, the new policy manual says merely "most" election eve investigations would have such an effect. In making this change, the DOJ fails to acknowledge that nearly all election fraud investigations will likely affect elections and should, therefore, wait until after the election is over before being launched. As you know, federal investigations of vote fraud often involve interviews of voters and/or election officials, and thus any action taken by the Department in this regard will likely receive media attention. More importantly, the manual changes what had previously been a mandatory prohibition of pre-election investigations and indictments (absent extraordinary circumstances that go to the actual integrity of conducting the election itself) to discretionary guidelines that prosecutors may or may not choose to follow.

2. The new federal prosecutor's manual no longer cautions against pursuing isolated instances of individual voter fraud (as compared to mass cases of voter suppression).

The former prosecutors' manual contained this language: "The Justice Department generally does not favor prosecution of isolated fraudulent voting transactions. This is based in part on constitutional issues that arise when federal jurisdiction is asserted in matters having only a minimal impact on the integrity of the voting process. To be prosecuted federally, an election fraud must usually involve a systematic and organized pattern of abuse." The new manual deletes this passage.

The Department's new policy, which would allow for a focus on individual voter fraud, is a tactic that has been used to intimidate minority voters. Minority voters are often the targets of those who use law enforcement machinery for partisan gain. The new policy no longer discourages prosecution of individual cases of voter fraud and instead, without any policy in place, will allow the federal government to use its vast resources to prosecute individuals. As the former manual noted, this policy will not only have a minimal impact on the integrity of the voting process itself, but it raises serious constitutional issues. Individual cases of voter fraud are most often pursued by local law enforcement authorities, and the federal government's decision to step into this area would not only pre-empt local law enforcement authority, but raises serious federalism issues.

Without a policy in place that discourages prosecution of isolated cases of voter fraud, federal prosecutors can indict individual voters or political actors on the eve of an election and such indictments can then be used to advance partisan gains. This raises the specter of cases in 2008 when individual voters might be indicted in the days just before the election, with the indictments highlighted by a DOJ press release, and immediately followed by a press release of a political party championing the indictments. Indeed, this is precisely what happened in Kansas City in 2006 when former U.S. Attorney Brad Schlozman indicted ACORN contractors who were registering people to vote. Immediately following Mr. Schlozman's announcement of the indictment, the state Republican Party issued a press release of its own and held a press conference trumpeting the vote fraud indictments, with all of this then reported by the media. The fact that Mr. Schlozman later acknowledged that he could have waited until after the election was over to announce the indictments, and further that the alleged voter fraud activities did not affect the integrity of the election process, is strong proof that this change in DOJ policy has the potential for abuse. DOJ's long history of even-handed law enforcement will surely be undermined if there is a change in policy that creates the potential for federal law enforcement power to be used as a tool for partisan gain. And that is precisely the effect of this change.

3. The new manual significantly narrows the list of pre-election investigations to be avoided by prosecutors, leading to potential interference with future elections.

Specifically, the old rules stated that the types of pre-election investigations to be avoided applied to all "election fraud matters." The new rules only apply to cases involving vote counting. Thus, voter fraud cases involving voter registration issues - the precise type of indictment brought by Mr. Schlozman - are no longer cases to be avoided. The federal prosecution of individual cases of voter fraud involving voter registration should be pursued at the local level. The Department of Justice should not inject itself into such matters because such prosecutions have often been used for partisan gain and have a chilling effect on voters and party activists in the minority community.

The specter of politicization of law enforcement does great damage not only to the Department of Justice, but also to our democracy. The credibility of our nation's leading law enforcement agency is further demeaned when it fails to operate with sufficient transparency and retreats into obfuscation in the face of public and congressional inquiries into serious and credible allegations of politicization. As head of the division, you have the responsibility to review the changes made to the DOJ policy manual to ensure they are commensurate with the best public policy. In its current form, the changes made to the policy manual identified above make things worse, not better. I also believe you have a duty to ensure that a full and accurate record is made publicly available, so that changes made in this important area can be reviewed and analyzed based on all relevant information.

The Legal Center urges you to begin addressing these concerns immediately by providing a full public explanation of the revisions to the manual, including both a full disclosure of all records relating to this matter. We also urge you to provide a complete and timely response to Senator Feinstein's letter which also raised serious concerns about the changes to the DOJ prosecutors' manual.

Sincerely,

J. Gerald Hebert
Executive Director and Director of Litigation
The Campaign Legal Center

cc: Chairman Patrick Leahy
Ranking Member Arlen Specter
Senator Dianne Feinstein