When Prosecutors Get Political

The Nation
posted online on June 6, 2007

When Prosecutors Get Political
by Justin Levitt

Thanks to fine print in the renewed USA Patriot Act, 35-year-old Bradley Schlozman, the man presiding over the partisan reshaping of the Justice Department’s Civil Rights Division, was the first federal prosecutor installed without Senate confirmation. He arrived in Missouri eight months before the 2006 election, with one of the closest Senate races in the country on the line.

His timing was remarkable.

Schlozman spent some uncomfortable hours Tuesday before the Senate Judiciary Committee, defending the curious use of his prosecutorial privilege. Seems that scant weeks after a few renegade workers for the nonpartisan community organizing group ACORN submitted fake voter registration forms, Schlozman rushed through four federal indictments, even getting one of the names wrong in the hurry. The indictments were announced five days before the election.

Schlozman’s handiwork fed a predictable partisan flurry. His press statement cited ACORN, which was registering voters in Missouri’s poor and minority communities, and announced a vague national investigation that was “very much ongoing.” Local partisans took up the call, attempting to tie the Senate campaign of Democrat Claire McCaskill to the alleged criminal activity. And the Wall Street Journal editorial page took its outrage over ACORN national.

Schlozman knew better.

Specifically, he knew that more experienced prosecutors had long ago set Justice Department policy, forbidding election-eve charges for exactly this reason. As the department’s reference guide explains: “It should…be kept in mind that any investigation undertaken during the final stages of a political contest may cause the investigation itself to become a campaign issue.” And therefore “most, if not all, investigation of an alleged election crime must await the end of an election to which the allegation relates.”

That last sentence is underlined in the guide. And if investigations are prohibited—with an underline—you’d better believe that high-profile election-eve indictments are off-limits.

In yesterday’s hearing, Schlozman claimed that the policy didn’t apply, offering a tired and conclusively debunked excuse.

More crippling, however, is Schlozman’s own demonstration in Tuesday’s hearing that he was familiar with the utility of pre-election restraint when it suited him. Witness his explanation of why, without his say-so, federal civil rights attorneys could not investigate disenfranchisement of Native Americans through restrictive ID laws in October 2004: “Well, any time we’re dealing in a pre-election period and any time the Civil Rights Division is going to be going in… I mean, those things make the newspaper, it gets the attention. And we wanted to make sure that we were not going off half-cocked in any jurisdiction.”

Indeed.

It is good that Tuesday’s Senate panel spent so much time on Schlozman-of-October-2004 and Schlozman-of-October-2006. These are vivid and troubling examples of the refusal to protect election integrity on the one hand and a direct threat to election integrity on the other.

Unfortunately, the hearing left comparatively unprobed Schlozman’s tenure between 2004 and 2006. 2005 revealed a few other instances of noteworthy timing that should not be overlooked.

For example, on August 25, 2005, career civil rights attorneys submitted a fifty-one-page report recommending that Georgia’s new photo ID law be blocked under the Voting Rights Act due to likely harmful effect on African-Americans. The next day that recommendation was overruled by staff under Schlozman’s direction, and the photo ID law went into effect.

On November 2, 2005, Schlozman trumpeted a new agreement with California as a “model” for other states across the country. The agreement called for the state to reject registration forms that did not match other government information; simple typos soon began to disenfranchise eligible citizens. By the time registration had closed, four months later, for the election to fill the seat vacated by convicted Representative Randy “Duke” Cunningham, 26 percent of new registrants statewide had been blocked.

On November 22, 2005, Schlozman’s voting rights attorneys sued Missouri to force the state to purge its registration list more aggressively. The suit was filed despite the ongoing construction of a database that would allow effective maintenance of the rolls. It also revealed Schlozman’s limited sense of history: Just four years earlier, DOJ had filed a mirror-image suit against St. Louis, based on the overly aggressive purge that had wreaked havoc on the 2000 elections.

The public may yet get some help connecting these disturbing dots. Schlozman’s time on the Senate floor may be over for now, but he did not act alone. Fortuitously, one of his principal colleagues and advisers at DOJ, Hans von Spakovsky, appointed by President Bush to the Federal Election Commission, comes up for a long-overdue confirmation hearing in the Senate next Wednesday. Just eight days after Schlozman’s testimony, senators will have another chance to seek explanations for the time that the Justice Department has spent working against its constituents.

Now that’s a bit of remarkable timing we can all feel good about.