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Trump’s Justice Department isn’t enforcing civil rights

A VICE News analysis of cases and investigations shows enforcement is at its lowest level in two decades.

by Rob Arthur
Feb 23 2018, 5:45pm

The Trump administration is pursuing far fewer civil rights cases than its predecessors, a VICE News review of Justice Department records shows. Total activity in the agency’s civil rights division is at a 17-year low, falling well below levels seen in the last two administrations. One DOJ section charged with enforcing laws on police department misconduct has been completely inactive.

The Justice Department’s civil rights office has prosecuted some of the most important civil rights cases in United States history, including dismantling Jim Crow and maintaining the rights of people with disabilities. In interviews, former DOJ officials and civil rights experts expressed frustration with the office’s current lack of activity and said they were worried about the potential consequences.

“There’s a level of activism and inconsistency with core rule-of-law principles that I see from DOJ and across the administration that I worry will take us back to a dangerous prior point in our history where people like me — black people, women — find themselves without protection from the government,” said Catherine Lhamon, the chair of the U.S. Commission on Civil Rights, an independent federal watchdog agency.

In the year since Donald Trump took office, six civil rights sections VICE News tracked have sent an average of about two letters opening cases per month. That’s the lowest monthly average for any yearlong period since at least 2000; under President Obama, the same sections together averaged more than a half-dozen cases a month.

Cases begin when the Justice Department starts investigating whether a person or organization violated the law. Following the investigation, DOJ attorneys send a letter or complaint detailing the allegations against them and their findings. For example, after Freddie Gray’s death in Baltimore police custody in 2015, the division initiated an investigation into the department, which resulted in a findings letter the next year.

Another way to measure the Justice Department’s civil rights enforcement activity is to look at legal agreements reached with people, companies, and organizations accused of discrimination. These agreements are one of the most common ways a case ends, and they typically come with fines or concessions. In Baltimore, the Justice Department imposed a court-monitored consent decree that listed goals for the police to meet before it could be lifted.

Under Trump, the division has reached about six of these kinds of agreements per month, on average, the fewest since at least 2000.

(The Justice Department’s civil rights division is divided into 11 sections covering matters including employment litigation and immigrant rights. Six of those sections provide public information about their legal proceedings. The other five provide only a sample of their cases or aren’t directly comparable to the sections we examined. An analysis of the available cases and briefs in those sections showed the same overall decrease under Trump.)

Beyond the complaints and agreements, it’s unclear how many active civil rights investigations the Justice Department is currently pursuing. The agency announced a review of the 2017 white supremacist violence and protests in Charlottesville, Virginia, but has otherwise provided little detail about its ongoing activities. A spokesman declined to comment or provide the number of active investigations.

Lhamon said she was surprised the DOJ failed to disclose the number of open investigations. “There’s no reason not to say,” she said. “What are they hiding?”

The steep drop in the civil rights division’s activity — both complaints and agreements — represents a major reversal from the Obama administration. Obama expanded the division’s staff in an effort to more aggressively prosecute civil rights violations and pursued high-profile cases, including the consent decree in Baltimore.

The falling number of cases isn’t the only evidence that the Trump administration is deemphasizing civil rights enforcement. In December, the Justice Department rescinded 25 guidance documents spelling out specific ways governments and companies must comply with existing civil rights laws and reversed positions on key cases defending voting and transgender rights.

Read: Justice Department launches strange investigation into affirmative action

Trump’s proposed budget would eliminate more than 100 positions within the civil rights division, about 14 percent of its workforce. In his role as attorney general, Jeff Sessions has voiced opposition to some of the division’s work, particularly its cases targeting police departments for allegedly biased behavior.

Lhamon’s agency launched an investigation last June into the federal government’s civil rights enforcement activity, citing Trump’s proposed budget.

Outside the Department of Justice, ProPublica reported that the Education Department was scaling back civil rights investigations. Since other parts of the federal government frequently refer civil rights cases to the Justice Department for prosecution, the lower caseload could be partly due to reduced activity outside of the civil rights division.

The necessity of civil rights enforcement used to be an issue of bipartisan agreement. The civil rights division of the Department of Justice was established under the Civil Rights Act of 1957 and has been one of the most celebrated offices in the federal government. George H.W. Bush signed the Americans with Disabilities Act into law, and previous administrations supported and funded activity within the civil rights division. Former Attorney General Eric Holder referred to it as the “crown jewel” of the department.

But both liberal and conservative groups have charged previous administrations with politicizing its activities, and the division has come under scrutiny before for partisan activity. Most major cases must get approval from a political appointee (typically the assistant attorney general). A 2009 Government Accountability Office report showed that Bush appointees suppressed civil rights cases and made hiring decisions based on political affiliation rather than merit. Conservatives then charged the Obama administration with the same behavior.

The division's current level of activity is lower than any seen even in the Bush years. The drop spanned the six sections we examined but was more severe in some. While activity in the Housing section is down only moderately, Education has produced four agreements over the past year. There was only one legal agreement in Voting Rights (ending a voter registration case begun under Obama). And there hasn’t been a single new case or agreement in the Special Litigation section, which handles investigations of police departments and jails, among other matters.

Read: What Trump and Sessions mean for police reform

Former officials said that a decline in activity in those sections is expected, because their priorities tend to shift the most in going from a Democratic to Republican administration or vice versa. “Those sections tend to be the most politicized,” said Anurima Bhargava, the former chief of the Education section under Obama.

Each section has a different portfolio of ongoing and new litigation. In Education, much of the work is enforcing previously existing desegregation cases, so the drop in new filings may not be as significant. And in both Education and Voting Rights, cases begun under the Obama administration appear to have continued normally.

In contrast, former officials said that the lack of new cases in Special Litigation is a major problem. “This isn’t just about a slight difference in emphasis or ideology — [the failure to open any new cases] is a complete abdication of the responsibility to enforce the statute to prevent systemic police misconduct,” said Christy Lopez, who served as the section’s deputy chief under Obama and handled many police misconduct cases.

Multiple officials said the cutback in enforcement could have significant consequences. Chiraag Bains, a former official in the assistant attorney general's office, singled out voting rights and policing as the areas of the most impact. “People are going to be denied the right to vote on the basis of their race,” he said.

Some conservatives, however, disagreed with the idea that fewer cases indicates less interest in civil rights enforcement. They argued that Obama’s Justice Department stretched civil rights law to cover situations where it was never meant to apply, such as cases in which a statistical pattern of discrimination was present without direct evidence of discriminatory intent.

“It may be that the Trump administration is going to be hostile to enforcing the civil rights laws under the more dubious and exotic theories of the Obama administration, but that’s not fairly characterized as being hostile to civil rights laws more broadly,” said Roger Clegg, an attorney who served in the Justice Department under Presidents Reagan and George H.W. Bush.

Clegg suggested that Republicans may be interested in bringing different, rather than fewer, kinds of cases than Democrats would pursue. For example, he said, the Trump administration may challenge affirmative action policies — something the Justice Department may be preparing to do.

Clegg also said the slow pace of civil rights enforcement may be due in part to the combination of a new administration and the lack of a permanent assistant attorney general for the division. (John Gore is the acting head.)

Clegg placed some of the blame for that on the slow pace of Senate confirmations and some on the administration’s delay in selecting a nominee. The current nominee, Eric Dreiband, a lawyer who has worked on both sides of civil rights law, is widely opposed by civil rights groups.

Read: Trump’s civil rights pick has made a career fighting for corporate rights

Former division officials noted that many career attorneys remain in the department and that work usually can progress without a confirmed assistant attorney general. “There is no other explanation for why nothing has happened except that they’re not being allowed to open new cases,” Lopez said.

The full toll of a lack of enforcement may not be felt for some time. One former official likened the Justice Department to a battleship: an incredibly powerful tool to enforce civil rights statutes, but also very slow to change direction. While litigation may be significantly lower now, a lack of new investigations or monitoring of civil rights violations could result in a drop in enforcement for many years to come.

Correction (Feb. 23, 11:38 a.m.): An earlier version of this article incorrectly referred to the section of the Justice Department's civil rights division where Chiraag Bains worked.

Cover photo: President Donald Trump with Attorney General Jeff Sessions at the FBI National Academy graduation ceremony, Friday, Dec. 15, 2017, in Quantico, Virginia. (AP Photo/Evan Vucci)