WASHINGTON Lawyers in the Justice Department’s Civil Rights Division a branch President Barack Obama rejuvenated after the Bush administration neglected many of its key duties are worried that President-elect Donald Trump’s administration might dismantle the work they’ve done over the past eight years.
Under Obama, the Civil Rights Division has fought Republican-backed voting restrictions, prosecuted anti-gay hate crimes for the first time, and mounted major investigations of police departments in Chicago and Ferguson, Missouri.
Trump who once suggested he’d instruct his attorney general to investigate the Black Lives Matter movement but has called himself “the least racist person” around has different priorities. He subscribes to the notion that there’s a “war on police,” has called police “the most mistreated people in America” and spoke about the need to “give power back” to law enforcement.
Now the government’s top civil rights attorneys face a choice: Fight for what they believe in under an administration that shows every indication of being hostile to their division’s mission, or quit.
“There are a whole lot of career attorneys who are determined not to let their work get dismantled, by working twice as hard, by just being total pains in the butt if people try to undo their work,” said one DOJ official speaking on the condition of anonymity. “People recognize that the resources aren’t going to be there and that the support isn’t going to be there. But people really recognize that the importance of career line attorney in the Civil Rights Division has never been greater.”
Former DOJ official Jonathan Smith, whose work included the Civil Rights Division’s investigation into widespread unconstitutional behavior by the Ferguson Police Department, said he suspects many attorneys within the division are already preparing to depart.
“My guess is that [Wednesday], half the division spent the day fixing up their resumes,” he said. “I expect that you’re going to see, starting almost immediately, an outflow of very committed lawyers who are going to look for other ways to make a contribution and to not stick through a Trump administration.”
“I’m very concerned about what’s going to happen to the Civil Rights Division and the progress that’s been made on critical issues around criminal justice,” he added. “It’s really quite terrifying.”
Significant departures are virtually guaranteed, and it’s too early to say just how many career civil rights lawyers at DOJ will stick around for the Trump administration. Civil Rights Division chief Vanita Gupta recently told hundreds of employees that she’s planning to stay on until Trump’s inauguration on Jan. 20.
As of Tuesday afternoon, the Trump transition team had not contacted anyone at the Justice Department, and DOJ officials hadn’t been told the names of the individuals on the Trump team.
Many career attorneys are anxiously awaiting Trump’s attorney general pick, which will give them a better sense of the president-elect’s priorities and help them decide whether they could be more effective inside a Trump DOJ or fighting for civil rights from the outside. Opponents of the Civil Rights Division’s work during the Obama administration, meanwhile, are salivating over the changes a Trump administration could bring about.
The Civil Rights Division, which was founded in 1957, is one of the sections of the Justice Department that experiences the biggest changes during a presidential transition. Its work is often controversial, and its priorities reflect the politics of the administration in power. There are parts of the division’s mission such as investigating unconstitutional policing practices in local police departments that many Republicans don’t believe are part of the role of the federal government.
In 2009, Obama’s transition team found the Justice Department’s Civil Rights Division “demoralized and damaged” by “oppressive” political appointees who were “hostile” to civil rights enforcement, according to a transition team report previously obtained by The Huffington Post. The report found the administration of former President George W. Bush had “abandoned the Division’s traditional mission and goals, consistently sacrificed sound law enforcement principles for political ends, and waged an internal war against career employees.”
One Bush official, Bradley Schlozman, was found to have packed the Civil Rights Division with conservatives he labeled “right-thinking Americans.” This was part of his plan to “gerrymander all of those crazy libs” who he also referred to as “commies” and “pinkos” in the division. In one email, Schlozman said that “bitchslapping” Civil Rights Division attorneys “really did get the blood pumping and was even enjoyable once in a while.” He jokingly suggested the DOJ should create an award in his honor, the “Brad Schlozman Award for Most Effectively Breaking the Will of Liberal Partisan Bureaucrats.”
Under Bush, the section that investigates police departments had been “micromanaged in a way that has prevented it from formulating or pursuing a meaningful agenda” and had “not used its authority to address systemic problems of police misconduct,” according to the transition report.
Much of that changed under Obama. The division has opened 23 investigations since the administration took office in 2009, and currently has 19 agreements with law enforcement agencies. It has conducted high-profile investigations of unconstitutional policing practices in cities including New Orleans, Ferguson and Baltimore where police routinely performed unconstitutional searches and where officers who engaged in misconduct weren’t held accountable, according to an August report.
The biggest open question is what will happen to the ongoing investigation into the Chicago Police Department, which began 11 months ago. The investigation is the largest the division has ever conducted, and the DOJ has been telling residents of the city that the federal probe can finally make a difference in policing practices. It would be a heavy lift for the Justice Department to complete that probe before Trump takes office, and it hasn’t been determined if the results of the investigation will be announced before his inauguration.
Trump suggested during a debate this year that the ability of people to sue when they experience excessive force was enough: “Everybody sues, right?” (Individual civil rights lawsuits, even when successful, often fail to address widespread misconduct and prevent future unconstitutional arrests, injuries and deaths.)
If there’s any glimmer of hope for civil rights advocates, it’s that Trump hasn’t been very specific about his policy beliefs on civil rights, even as he has used rhetoric that makes them cringe. Former Democratic presidential nominee Hillary Clinton had pledged to beef up federal oversight of police departments across the country by pumping resources into the Civil Rights Division. Trump, however, hasn’t really laid out a detailed policy, beyond saying that that the federal government “should not dictate to state and local law enforcement or interfere unless invited in by appropriate authorities or when verifiably improper behavior is clearly demonstrated.”
High-profile Trump supporters with backgrounds in law enforcement don’t give civil rights advocates much hope. Rudy Giuliani, who has been mentioned as a potential attorney general pick, has called the Black Lives Matter movement racist and anti-American. Another potential nominee, Sen. Jeff Sessions, had called groups like the American Civil Liberties Union and the NAACP “Communist-inspired” and “un-American” in addition to reportedly making racist comments that led to his rejection as a federal judge in the 1980s.
Trump has been surrounded by law enforcement surrogates like Sheriff Joe Arpaio of Arizona and Sheriff David Clarke of Wisconsin, whose records on civil rights leave advocates concerned, to say the least. Steve Bannon, Trump’s chief strategist and senior counselor, does not believe there’s a systemic race problem in the United States.
There are many ways that members of the Trump administration could blunt the impact of civil rights attorneys. They could starve the division of resources. They could shift their work (during the Bush administration, lawyers were assigned immigration cases instead of civil rights work). And they could flat-out overrule them.
Rather than having an ally in the Justice Department, it will be an opponent. Former DOJ official Jonathan Smith
“You can kill the civil rights agenda in a lot of ways that still allow you to still have a public face and a propaganda face that gives you cover,” Smith said. “It’s a scary time coming up.”
Opponents of the Civil Rights Division’s recent work are already making plans. Robert Romaro of Americans for Limited Government said that a Trump administration could end what he characterized as a “takeover” of police departments.
“The rule of law starts at the top, and with a President Trump, you can bet police will get a green light to get back to work and make America safe again,” he wrote. “No more putting targets on cops.”
Former Civil Rights Division attorney J. Christian Adams one of the “right-thinking Americans” Schlozmann hired wrote that there are “few places as swampy” as the Civil Rights Division. He encouraged Trump’s team to take a number of steps to crack down on the division and to use civil service laws to go after its members.
There are some areas where civil rights experts don’t expect to see such a dramatic shift, such as in prosecutions of individual law enforcement officials on civil rights charges. The criminal section of the Civil Rights Division has brought more than 480 civil rights cases against law enforcement officers under the Obama administration, compared to 468 during the Bush administration.
But outside groups already consigned to the fact that they’re about to lose a key ally within the federal government. It’s hard to imagine the Trump administration, for example, arguing that cash bail is unconstitutional when it fails to account for poverty, as the Obama administration did in August. Several other DOJ initiatives including a letter meant to curb the illegal enforcement of fines and fees in municipal courts around the county would have never happened under an attorney general like Giuliani, wrote Thomas Harvey, the executive director of the St. Louis-based organization ArchCity Defenders, in a recent blog post.
Kristen Clarke, the president and executive director of the national Lawyers’ Committee for Civil Rights Under Law, said there was a “deep and dangerous” politicization of civil rights work during the Bush administration, and it was crucial to stop that from happening again.
“We will work to ensure that we do not revisit that dark era, and we will push to ensure that there is continued enforcement of our nation’s civil rights laws,” Clarke said. “It took years to undo the damage that resulted from the politicization of the Civil Rights Division’s work between 2000 and 2008. Our nation will not benefit and our democracy will suffer if we were to return to that era again.”
Smith, now the executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, sees dark times ahead within the Civil Rights Division. Although he’s somewhat hopeful that the protest movement is going to inspire the “changing social conditions” needed to help civil rights lawyers bring about change through courts, the Civil Rights Division under Trump will not be the same.
“Rather than having an ally in the Justice Department,” Smith said, “it will be an opponent.”
Dana Liebelson contributed reporting.