Hearing of the House Committee on the Judiciary - "Joint Hearing on Allegations of Selective Prosecution Part II: The Erosion of Public Confidence in Our Federal Justice System"

Statement

REP. SANCHEZ: (Sounds gavel.)This joint hearing of the Committee on the Judiciary, Subcommittee on Commercial and Administrative Law and Subcommittee on Crime, Terrorism, and Homeland Security will now come to order. Without objection, the chair will be authorized to declare a recess of the hearing at any point. I will now recognize myself for a short statement.

During a March 6, 2007, Commercial and Administrative Law Subcommittee hearing on a measure regarding the appointment of U.S. attorneys, we posed the following question: Are important decisions about our justice system being made for political reasons? Seeking answers, the Judiciary Committee has investigated whether department -- whether the Department of Justice has allowed politics to seep into its decision-making.

The investigation initially focused on the firings of several United States attorneys for their reluctance to bring politically based prosecutions. Gathered evidence led the Judiciary Committee to look into other activities of the Justice Department namely, whether the Justice Department's hiring of career employees was based on the illegal criterion of political affiliation.

We also began examination of whether the Justice Department brought federal prosecutions based on political motivations. Today, we continue this investigation and focus on another aspect of the Justice Department's action. If the Justice Department prosecuted individuals for political expediency, did it refrain from prosecuting individuals for political purposes?

Today's hearing is a second joint hearing by the Commercial and Administrative Law Subcommittee and the Crime, Terrorism, and Homeland Security Subcommittee on allegations of selective prosecution. At our first joint hearing in October of 2007, we heard testimony about Democrats being disproportionately targeted for federal prosecutions under the current administration.

This joint hearing will focus on limited federal prosecutions against Republican-leaning individuals and groups. Under this administration, the Department of Justice has investigated allegations of voter fraud, but has seemingly turned a blind eye to investigating allegations of vote suppression.

On Election Day in 2002, Republican Party members and a Republican political operative impeded the New Hampshire Democratic Party and the Manchester Firefighters Association in their efforts to get out the votes. A Department of Justice investigation into the incident led to four individuals being indicted or pleading guilty for their involvement in suppressing voter turnout.

However, there are allegations that senior Justice Department officials limited the inquiry, possibly to prevent the investigators from determining whether White House officials and top Republican National Committee personnel were involved.

As a result, the Judiciary Committee was requested to investigate allegations of vote suppression in New Hampshire. We do not know if the investigators were able to determine why there were many phone calls between one of the indicted individuals, James Tobin, and the White House on the day of the election.

However, we have learned that the RNC has paid the legal fees to defend Mr. Tobin, a decision apparently approved by the White House. If there are indications that more senior officials in the RNC or even the White House were involved, why did the Justice Department appear to limit the investigation? We also have learned that the Justice Department did not fully investigate another troublesome allegation of vote suppression.

Media reports in 2004 revealed that employees of Sproul & Associates, a Republican-connected voter registration firm, were apparently trained to falsely identify themselves as non-partisan, and then register Republicans to vote while discouraging Democratic- leaning individuals from registering to vote.

For those Democratic-leaning voters who completed registration cards, Sproul employees in Pennsylvania, Oregon, and West Virginia allegedly destroyed those registration cards. Although these activities are clearly aimed to suppress the Democratic vote and to favor Republican candidates, the Justice Department quickly determined that there was insufficient evidence to prosecute Sproul & Associates.

If the media alleged vote suppression efforts by a Republican- connected firm, why did the Justice Department not fully investigate these activities? On three separate occasions, the Judiciary Committee has requested from the attorney general answers to a series of questions and documents about the Justice Department's handling of these cases.

The Justice Department has failed to address our specific questions, and has only provided cursory responses. We have also invited the Department of Justice to send a witness to testify at this hearing, but it has chosen not to present a witness.

That is unfortunate, because the American people need to be assured that political considerations play no role in determining whether a Justice Department investigation is pursued or whether an individual is prosecuted.

Finally, although some may allege that we are wasting time holding this hearing, I question whether those critics would tell the American people that an investigation into efforts to suppress their right to vote is a waste of time.

The American people want to be secure in the knowledge that the federal government will protect their right to vote, and will prosecute individuals who seek to limit that constitutional right. There is simply no place for partisan politics in a prosecutor's decision to move forward with a prosecution or to end an investigation. Accordingly, I look forward to the testimony of our witnesses today.

Before I conclude, I'm going to ask unanimous consent to enter into the record two documents relevant to this hearing today.

The first document is a September 18, 2007 request from Representative Paul Hodes who is here with us this afternoon to Chairman Conyers to investigate allegations of phone jamming in New Hampshire on Election Day in 2002.

The second document is a letter from Holly McCullough, the manager of Carnegie Library of Pittsburg, Squirrel Hill, dated April 29, 2008. In the letter, Ms. McCullough documents evidence from fall of 2004 involving voter registration efforts by Sproul & Associates.

I now at this time would like to recognize my colleague, Mr. Cannon, the distinguished ranking member of the subcommittee, for his opening remarks.

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REP. SANCHEZ: Thank you, Professor Miller.

We will now begin our round of questioning. And I will begin by recognizing myself for five minutes of questions. My first question is for Mr. Twomey.

Do you think that it's appropriate for the Bush administration to refuse to explain key questions in the jamming scheme such as who knew about the scheme at the White House and when they were aware of that?

MR. TWOMEY: In one word, no. We sought to get information from the White House about all the calls to the White House. There can be innocent explanations of those calls that this was -- those calls -- this was during election.

But if we could see a pattern of who Tobin called -- Tobin being the RNC Bush/Cheney guy who made the calls -- and what those people next did, we could have determined whether or not those were innocent calls or whether those were calls that they were part of the conspiracy.

We sought those, the White House refused to provide them. My understanding is that they -- this committee hasn't been able to get any information on any of --

REP. SANCHEZ: That's correct.

My second question is also for you. Do you think the Department of Justice had a conflict of interest in investigating the phone jamming case?

MR. TWOMEY: I think that those at the higher levels of the Department of Justice has an absolute and clear conflict of interest, that the two attorney generals, Ashcroft and Gonzales, had obvious connections. Mr. Gonzales was in the White House when this occurred. He was White House counsel. There is question about the White House political office having been part of it. That's an obvious conflict.

Mr. Ashcroft was a member prior to his becoming attorney general of the Republican Senatorial Committee. That's where Mr. Tobin worked, one of the places he worked besides the Republican National Committee. Those are obvious conflicts. They should have taken themselves out of this, out of the chain of command making these decisions.

I do not believe the trial-level attorneys themselves had a conflict, but the problem was they couldn't make the decisions on the case. We were told several times that the reasons things took so long and the reasons that certain things didn't happen such as indicting Mr. Tobin in a timely basis was because of orders from above.

REP. SANCHEZ: Thank you.

Mr. Raymond, you indicate in your book how to rig an election, that your case went all the way to the top of the Department of Justice and was on John Ashcroft's desk. Do you think it was an unusual circumstance that the attorney general was personally looking into your case? And do you think the attorney general made selective decisions on which individuals to go after, and that you were particularly targeted?

MR. RAYMOND: I can't speak for the attorney general I have no --

REP. SANCHEZ: Is your microphone on? I'm sorry.

MR. RAYMOND: Yes -- is that better?

REP. SANCHEZ: That's much better.

MR. RAYMOND: I can't speak to the motives of the Attorney General Ashcroft. I've never worked at the Department of Justice. I can't say that a number of aids to Mr. Ashcroft have political backgrounds. That's how I met some of them. One had formerly been a political director of the Republican National Committee.

And in fact, I think he had been Mr. Tobin's superior at the time. So I certainly think that those calculations could have come into effect. I can't speak to whether or not they did in fact.

REP. SANCHEZ: Do you think it was wrong for Mr. Tobin to continue to serve as a Bush campaign official when the Department of Justice had evidence that he was a clear participant in the jamming scheme?

MR. RAYMOND: Well, my understanding is once he was indicted and it was made public he was on. So it's a question of who knew what went and coin a silly term. But I think that if his peers had no idea it was going on, I think it was fine. If they did, then that's another matter entirely.

REP. SANCHEZ: Thank you.

Professor Miller, have you heard of any other instances -- was any other voter registration firm where people were trained to register only voters of a certain party?

MR. MILLER: I have not.

REP. SANCHEZ: So to your knowledge that was a unique circumstance?

MR. MILLER: No. That's unique. It's worth noting also that Sproul's people often represented themselves as being with a group called "America Votes," which is a well established and respected and nonpartisan voter registration operation.

And the people from America Votes eventually complained about this, because this was clearly a partisan effort. And I -- to answer your question, I don't -- can't think of any other examples of that happening on either side.

REP. SANCHEZ: Okay. Can you describe in detail some of the other voter suppression strategies that might have been employed in the 2004 or the 2006 elections?

MR. MILLER: God! That's a very big question. There are a number of books on the subject. And I would respectfully suggest that this should be, you know, a matter for a full investigation on its own. There has been a great deal of such activity.

And let me answer ranking member's -- one of his earlier questions in this regard. I don't believe that this kind of investigation should be restricted to what Republicans do. I do indeed believe that Democratic vote suppression and election fraud should be prosecuted as well. I'm kind of a purist on this matter, and what's good for the goose is good for the gander.

I also would agree that this -- there has been election fraud in our history, sadly, forever. It goes way back, but I -- having studied this and written extensively about it, I must conclude -- and I'm not the only one to draw this conclusion, that what has happened over the last seven years is unprecedented in our history both for its scale and for its technological specification.

The use of electronic voting machines of any kind seems to me quite perverse, because what you have there is in essence a secret vote count. To have electronic machines on which you either vote or which count your vote is to use a technology that's tantamount to having somebody take the ballot home, pull the blinds, and then come out in the morning and say here's the number, take it or leave it.

Moreover, the companies that make the machines are private companies, and are therefore unaccountable. So this represents something new. And even at the moment -- even as we speak, there are things happening such as the veterans' administration now refusing to help wounded veterans register to vote, which was a policy they had briefly promised to change, and now we hear that they're not going to do it after all.

I think that if we believe in universal suffrage and we believe in the right to vote, we should do everything we can to make that possible. Voter fraud is a problem, a very, very minor problem, but it seems to me that we could much more easily solve it by, for example, putting video surveillance in polling places than in passing laws that disenfranchise tens of thousands of people. That's like treating a minor headache by getting a lipotomy, you know.

So again, I appreciate your question and want to repeat that this matter is far too important, I think, to be left to either party, and one that a committee like this one should plan future investigations of.

REP. SANCHEZ: Okay. And the committee will indulge one final question, which hopefully would be instructive, but as I am sure you are aware this is an election year, what do you think that we could do now to prevent situations like the New Hampshire phone jamming or Sproul's destruction of voter registration cards, or any other attempt to suppress the vote. Prospectively looking ahead, what would be some suggestion --

REP. CONYERS: Would the gentle lady yield?

REP. SANCHEZ: I would yield.

REP. CONYERS: I suspect the fact that three guys, two guys who have gone to jail and third might go to jail, actually work its wonders in dissuading people from illegal activity.

REP. SANCHEZ: I would tend to agree to some extent, but no doubt there are further steps I am sure that could be probably be taken to try to prevent those types of things from repeating themselves.

MR. MILLER: Well, --

REP. SANCHEZ: Any ideas Professor Miller?

MR. MILLER: Yes, I mean, there have been grassroots movements all over the country, which are bipartisan by the way to try to either get rid of paperless voting machines and replace them with optical scanners, or to get rid of both types of machinery, and go back to hand-count paper ballots. Those movements have failed.

A lot of reformists' movements have failed for pretty complicated reasons. I think that the best thing that people can do now is to plan to monitor the election process aggressively. And to make sure, which ever party they belong to, make sure that they are registered because a lot of people are now turning up at the polls to find their names have been expunged.

This is something that is often a result of voter caging, often a result of the improper use of felons lists, but is also some times, it's kind of summary action that relates to the fact that now we have electronic voter roles I mean, this is a terrible idea.

So basically what I am suggesting is people have to become informed about the issue, know what their rights are, make sure they are registered, monitor the process, and make a tremendous racket, if they see improprieties and so on.

And understand that it doesn't matter which party wins. It really doesn't, if people are prevented from voting in an election, even if their chosen party wins, a terrible wrong has been done here. And there are people on the Republican side, who agree with me very strongly about this.

REP. SANCHEZ: I agree that it's not a part of an issue, and I think with respect to an individual right to vote. Just very quickly, Mr. Twomey's suggestions prospectively, looking ahead that might prevent some more types of incidents.

MR. TWOMEY: I don't think there's anything that you can do in a general sense that it will stop everybody from trying to gain an unfair dimensions in an election, but I can tell you one thing, that if you cut off elections, and you cut off investigations you don't engage in oversight of the Department of Justice, people will be encouraged to do it on a large scale basis.

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