Ex DOJ Voting Rights Chief: “It’s Going to Take a Long Time to Cleanse” Department

October 17, 2008 5:34 p.m.

A former top Department of Justice voting rights official — who once worked with John McCain in defense of the senator’s campaign-finance reform bill — has added his name to the growing chorus that is denouncing the department’s investigation of ACORN as a shameful and inappropriate politicization of Justice along the lines of the US attorney firings.

Speaking to TPMmuckraker, Gerry Hebert described the investigation, word of which was leaked off the record to the Associated Press less than three weeks before the election, as “a continuation of injecting DOJ into what has clearly become a political issue.”

He continued: “That’s really not the proper role for the DOJ, and why their policies counsel otherwise.”

To demonstrate that point, Hebert provided TPMmuckraker with a copy of the department’s Manual on Federal Prosecution of Election Offenses.

Under a section headlined “Investigative Considerations in Election Fraud Cases”, the manual reads:

When investigating election fraud, three considerations that are absent from most criminal investigations must be kept in mind: (1) respect for the primary role of the states in administering the voting process, (2) an awareness of the role of the election in the governmental process, and (3) sensitivity to the exercise of First Amendment rights in the election context. As a result there are limitations on various investigative steps in an election fraud case.

In most cases, election-related documents should not be taken from the custody of local election administrators until the election to which they pertain has been certified, and the time for contesting the election results has expired. This avoids interfering with the governmental processes affected by the election

Another limitation affects voter interviews. Election fraud cases often depend on the testimony of individual voters whose votes were co-opted in one way or another. But in most cases voters should not be interviewed, or other voter-related investigation done, until after the election is over. Such overt investigative steps may chill legitimate voting activities. They are also likely to be perceived by voters and candidates as an intrusion into the election. Indeed, the fact of a federal criminal investigation may itself become an issue in the election.

Although it is unclear whether the FBI has taken information or interviewed voters, Hebert argued that the new ACORN investigation clearly violates the manual’s guidelines, both in terms of its timing — initiated so close to election day — and in terms of the off-the-record leak by which it was publicized.

Hebert served 21 years at DOJ’s civil-rights division, including a stint as acting head of the voting rights section.* He left in 1994 and now heads a public interest legal non-profit. In 2003, he represented McCain and Sen. Russ Feingold, when the campaign-finance reform legislation authored by the two senators was challenged by conservative activist groups.

Hebert, noting that he had been at DOJ during the administrations of Richard Nixon and Ronald Reagan, added: “During the twenty-one years I was there, even though there were political appointees who I worked with, never did we inject partisan considerations into our law-enforcement responsibilities. That has clearly not been the case in recent years under this administration. And it’s going to take a long time to cleanse the Department of Justice.”

The Obama campaign, House Judiciary chair John Conyers, and, in an interview with TPMmuckraker, former US attorney David Iglesias, have all also connected the FBI’s ACORN investigation to the kind of politicization exposed in the firings saga.

* This sentence has been corrected from an earlier version.

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