The incoming Justice Department civil rights chief has a history of opposing civil rights prosecutions of black defendants, opposing a complaint against an African-American Democratic leader who discriminated against white voters.
As an NAACP lawyer, Kristen Clarke lambasted the Justice Department for bringing a complaint against an African-American party boss in Mississippi who worked to suppress white votes, according to a federal probe. On a separate occasion, a federal oversight commission investigated claims that Clarke worked with allies at the Justice Department to quash the prosecution of the Black Panthers who menaced voters outside a Philadelphia precinct in 2008.
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Clarke's nomination to an influential Justice Department post will test the Biden administration's commitment to "equity-based" policy making, which purportedly promotes racial justice by giving special attention to marginalized groups. Clarke's professional history suggests a staunchly ideological approach to civil rights enforcement where touchstone civil rights laws are applied to advantage some demographic groups but not others.
Clarke made waves in 2007 as an outside critic of the Justice Department's civil prosecution of a corrupt party leader in Mississippi. A federal judge found that the leader, Ike Brown, violated the Voting Rights Act by suppressing white votes in a rural Mississippi county where whites are the minority. He was found to have pushed election workers to count deficient absentee ballots from blacks but disqualify ballots from whites with the same problems and held rigged caucuses in the homes of friends and supporters.
Then legal director of the NAACP's Legal Defense Fund, Clarke opposed the Justice Department's decision to prosecute him, according to 2010 testimony from Justice Department official Christopher Coates before the U.S. Civil Rights Commission.
Coates described a 2008 meeting with Clarke in which she "spent a considerable amount of time criticizing the division and the voting section for bringing the Brown case," and identified Clarke as part of a coterie of civil rights litigators who "believe incorrectly but vehemently that enforcement of the protections of the Voting Rights Act should not be extended to white voters but should be extended only to protecting racial, ethnic, and language minorities."
Unanswered questions also linger over Clarke's role in the Justice Department's abrupt retreat from the 2009 prosecution of two uniform-clad Black Panthers intimidated voters and poll workers outside a Philadelphia voting precinct. An internal Justice Department report said that the pair intimated voters, shouted racial epithets, and castigated a black couple serving as poll watchers for the Republican party. One of them carried a billy club.
Federal prosecutors brought a civil complaint against the two Black Panthers in 2009, alleging violations of the Voting Rights Act. The defendants never responded to the complaint—effectively a forfeit—so the government was poised to win its case by default. But on the cusp of victory, in May 2009 the Justice Department dismissed its case against one of the panthers and recommended reduced sentencing for the other.
USCCR began investigating her involvement following a press report that she was in touch with DOJ lawyers about the case.
In a deposition before the Civil Rights Commission the following year, Clarke acknowledged contact with two Justice Department lawyers about the case but denied those contacts were substantive. Coates, the Justice Department official, revealed a third alleged contact, testifying in September 2010 that Clarke approached one of his subordinates about the case in 2009.
That approach, Coates said, "led me to believe in 2009 that the Legal Defense Fund political participation director, Ms. Clarke, was lobbying for the dismissal of the New Black Panther Party case before it was dismissed."
At the time, Clarke was director of political participation for the NAACP Legal Defense Fund, which denied any role in back-channel communications that led to the case's dismissal. "LDF played no role in, and conducted no advocacy around, DOJ's New Black Panther Party litigation," the group said in a letter to the Civil Rights Commission. "Statements that LDF, or any of its staff, sought to influence the manner or to limit the scope of the litigation in any respect are false.
Clarke, whose post requires Senate approval, has also faced criticism for promoting pseudoscientific theories of black racial superiority as a student at Harvard, and hosting an avowed anti-Semite on campus.
A hearing on Clarke's nomination before the Senate Judiciary Committee has not yet been scheduled. A White House spokesperson did not respond to requests for comment.