Last night I read an article on The American Prospect by Adam Serwer that cast some doubt on the premise that Eric Holder’s Department of Justice was responsible for letting cracker hater King Samir Shabazz off with a slap on the wrist.

Serwer wrote:

there’s a specific data point that has been lost in all the breathless coverage of this case and whether or not it represents a racist agenda from the Obama administration: The decision not to file a criminal case occurred before Obama was even in office.

From the testimony of Thomas Perez, head of the Civil Rights Division, before the U.S. Commission on Civil Rights in May:

This means that the case was downgraded to a civil case 11 days before Obama was inaugurated, 26 days before Eric Holder became attorney general, and about nine months before Thomas Perez was confirmed as head of the Civil Rights Division.

Serwer referenced Media Matters on this. There was a time when I would have thrown in the towel. Game over.

Not anymore. I sat on this because I knew I didn’t know enough about the specifics and hoped today there would be someone who did that could clarify Serwer’s claims.

Enter Hans A. von Spakovsky, “a former commissioner on the Federal Election Commission and a former counsel to the assistant attorney general for civil rights at the Justice Department.”

He rebuts:

This “downgrade” talking point is apparently supposed to excuse the Obama administration’s decision to dismiss virtually the entire civil voter intimidation case and to neuter the injunction sought against the one remaining defendant so substantially that what was left was little more than a minor annoyance.

These claims by a nonlawyer betray a fundamental ignorance of the difference between civil and criminal prosecutions and a total misunderstanding of how things work at the Justice Department and the Civil Rights Division. First of all, although the Civil Rights Division has a Criminal Section, the vast majority of its voting-rights prosecutions are civil cases conducted by the division’s Voting Section. Whenever someone violates the Voting Rights Act and does so in a way that is potentially both a civil and a criminal violation, the division must decide whether to proceed first with a civil or a criminal case. With most voting cases, the decision is usually to go with a civil case, particularly if there are elections coming up in the near future. That is because civil cases have a lower burden of proof and give the government the opportunity to obtain almost immediately a temporary injunction to stop the defendants from engaging in the same wrongful behavior as the case winds its way through the federal courts.

Criminal cases can take longer to develop, particularly since the government usually has to convene a federal grand jury to return an indictment. Also, criminal cases focus like a laser beam on individual defendants, whereas civil cases can include an organizational defendant (like the NBPP).

The focus for the Civil Rights Division is always on the best way to get the remedy that is needed to stop and prevent the recurrence of the voter intimidation or other wrongful behavior as soon as possible. In this particular case, when the decision was being made in January of 2009, the division knew there was going to be another election in May in Philadelphia. The fastest to way to make sure there would be no thugs in paramilitary uniforms and jackboots smacking batons into their fists at polling places in the upcoming election was to file a civil complaint and obtain a restraining order against the individual defendants and the New Black Panther Party. In fact, one of the defendants dismissed from the case was once again credentialed as a Democratic poll watcher in the May election.

Once the division obtained a judgment and an injunction in the civil case, they could have decided to further pursue a criminal prosecution against the individual New Black Panthers, but the number one priority had to be getting a civil injunction as expeditiously as possible before the next election.

…

So, this left-wing excuse (that criminal charges weren’t also brought) may strongly support what the Civil Rights Commission is now trying to focus on — and what the DOJ is desperately trying to cover up.

Indeed, the person who would have been responsible for making a recommendation on whether to file a subsequent criminal charge against the individual New Black Panther defendants was Mark Kappelhoff, the “career” chief of the Criminal Section and a former ACLU lawyer. Besides being a big contributor to Democratic candidates like Barack Obama and John Kerry, as well as the DNC, Kappelhoff was considered such a liberal loyalist that he was moved into the political position of chief of staff to the acting assistant attorney general for civil rights by the Obama transition team almost as soon as they came in the door.

Sources tell me that Kappelhoff never recommended a criminal case against the baton-yielding thugs, so the claim that the Bush administration is somehow responsible for “downgrading” this case is complete nonsense.