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When I was a small boy confronted about misbehavior, I often resorted to some explanation so far-fetched that I immediately lost all credibility. My mother used my incriminating answers to teach me the dangers of not being honest and not taking responsibility. I was reminded of this lesson when I recently saw some implausible explanations from the Department of Justice. In particular, what caught my eye was the explanation to The Boston Globe about why Bradley Schlozman, the U.S. attorney in Missouri, was permitted to deviate from department policy and indict political activists just before the 2006 election. And that’s not to mention the justification that Schlozman himself gave to Congress last Tuesday. Now, I must confess that I read these accounts with little respect for Schlozman. In 2003, Schlozman, a political appointee at the Justice Department, and his assistant Hans von Spakovsky had approved a controversial congressional redistricting plan pushed through the Texas Legislature by then-Rep. Tom DeLay. This was done despite clear evidence that the plan would harm minority voters and despite a unanimous staff recommendation by more than half a dozen career attorneys in the department’s voting section that the plan should be rejected. It seemed clear to me that Schlozman and von Spakovsky’s decision to approve the plan was motivated by a desire to help DeLay gain more GOP congressional seats from Texas. Given this and a number of other actions Schlozman had taken at Justice Department headquarters, I was not really surprised when I heard that his U.S. attorney’s office had announced indictments of Democrats just before the November 2006 elections. What struck a nerve, however, was that the indictments ran contrary to Justice Department policy as I well understood it. I spent more than 20 years as a Justice Department attorney prosecuting voting rights cases, and I knew the department had an express policy of not bringing voting or election-related indictments just before an election. As the May 6 Globe article correctly notes: “A 1995 Justice election crime manual says ‘federal prosecutors … should be extremely careful not to conduct overt investigations during the pre-election period’ to avoid ‘chilling legitimate voting and campaign activities’ and causing ‘the investigation itself to become a campaign issue.’” The investigations, either in reality or in perception, should not be allowed to sway the outcome of elections. The manual, known as the “little red book,” makes abundantly clear that department attorneys are not to take any action that could affect an election. Indeed, the manual emphasizes: “Most, if not all, investigation of alleged election crime must await the end of the election to which the allegation relates.” The indictments from Schlozman’s office did not involve a stolen truckload of absentee ballots or a complicated plot aimed at compromising the election. Rather, those charged registered a handful of citizens without their knowledge, though there was no apparent plot to have others vote in the name of these new registrants. In my experience, false registrations occur very infrequently � and almost exclusively when individuals are being paid per registration or are trying to meet quotas. Such behavior is illegal and should be punished, but it does not justify undermining the fairness of the election process by issuing indictments right before an election. Here, the voter registration process had closed when the indictments were announced, so there was no ongoing allegedly illegal registration. Schlozman himself acknowledged last week that waiting to indict until after the election would not have affected the cases. So how is it that Schlozman could bring his indictments just before the election? A Justice Department spokesperson told the Globe that Schlozman’s office got permission from headquarters for the election-eve indictments. The spokesperson added that, in the words of the Globe, “the department interprets the policy as having an unwritten exception for voter registration fraud.” An “unwritten exception” for voter registration fraud? That doesn’t even pass the straight-face test. The department goes to great pains to put its policies in writing. Rules about lawyer conduct and procedures that federal prosecutors have to follow go through dozens of rounds of drafting. They are then explained to lawyers in meetings, and questions are asked and answered. If any exceptions to a rule are carved out, they are always put in writing. Significantly, the ridiculousness of the explanation almost exceeds the spuriousness of the exception itself. The Justice Department spokesperson told the Globe that the exception existed because investigators need not interview voters for such cases. Now think about it. You have an allegation that someone has sent in registration forms for people either who do not exist or who live at fictitious addresses. Wouldn’t it make sense to send FBI agents to the addresses listed on the allegedly fraudulent forms to see who answers the door? Of course, you would start by reviewing the documents at the elections office and meeting with local election officials. But if the allegation is that Voter X doesn’t live at Address Y, wouldn’t it be helpful to have testimony from an agent who went to Address Y and confirmed that Voter X doesn’t live there? One of the persons indicted by Schlozman was Dale Franklin, who was accused of furnishing the Kansas City (Mo.) Board of Election Commissioners with a voter registration application on which Franklin had forged the signature of the applicant and that listed a false address and telephone number. Franklin pleaded guilty in February 2007. Wouldn’t an investigation of such a matter produce at least one voter being interviewed? Just a wild guess here, but I am thinking that maybe the voter whose signature had been allegedly forged might have some relevant information, such as “No, that is not my signature,” or “Yes, it is.” Further, even if an investigation into fraudulent voter registration could be undertaken without interviewing voters (a dubious proposition), the only other likely investigatory technique would require sending FBI agents into an elections office just before an election to gather the records. This is hardly a low-profile technique unlikely to become public, concern voters and potentially affect elections. But apparently under the new unwritten-exception policy, the Justice Department may take this step even if it will have an obvious effect on the election, so long as the agents don’t interview any voters. Does this explanation make sense to anyone? Both of these factors � the obvious need to interview voters with respect to voter registration fraud claims, and the likely chilling effect of sending FBI agents into elections offices right before an election � explain why Justice Department lawyers should wait until after an election to scrutinize all such allegations. Exceptions are so rare that I don’t recall any from my 21 years at the department. In his testimony on June 5 to the Senate Judiciary Committee about the indictments, Schlozman said, “I didn’t think this was going to have any effect on the election.” Never mind that after the indictments were announced, the Missouri Republican Party promptly issued a press release accusing the Democrats of trying to “steal” the election. Or that Schlozman also issued a press release (though it has now been removed from the U.S. attorney’s Web site). On its face, who can find plausible Schlozman’s claim that he didn’t think an indictment would influence the imminent election at all? The inevitable media coverage of such indictments right before an election serves no purpose but a political one. Such conduct is inexcusable and undermines the integrity of our democratic process and the public’s confidence in nonpartisan law enforcement. I was shocked and dismayed that even a political appointee like Schlozman would exhibit such contempt for our democratic process. An initial, vital step to healing the reputation of the Justice Department � especially after the beating it has taken at the hands of political commissars � will be to again embrace the written policy against election-eve indictments. As for the department’s tall tales about unwritten exemptions: I’m sure my mother would be willing to take the time to set certain officials straight about the importance of honesty and responsibility. J. Gerald Hebert is executive director of the Campaign Legal Center in Washington, D.C. He served for more than two decades as a prosecutor in the voting section of the Justice Department’s civil rights division. This piece originally appeared in Legal Times , a Recorder affiliate.

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