Top Ten Errors, Mischaracterizations, and Omissions

TOP TEN ERRORS, MISCHARACTERIZATIONS, AND OMISSIONS

IN PARTISAN REPUBLICAN STAFF REPORT ON TOM PEREZ

On April 14, 2013, House Oversight Committee Chairman Darrell Issa, House Judiciary Committee Chairman Bob Goodlatte, Representative Patrick McHenry, and Senate Judiciary Committee Ranking Member Charles Grassleyissued a partisan staff report alleging that Assistant Attorney General Tom Perez, the head of the Civil Rights Division at the Department of Justice, “manipulated justice and ignored the rule of law.” The report was riddled with numerous factual errors, broad mischaracterizations, and stark omissions, however, and the ten most egregious examples are set forth below.

Erroneous Claim That Perez’s Actions Were “Inappropriate”

The Republican report argues that Mr. Perez’s actions were “inappropriate and potentially violated Perez’s duty of loyalty to his client, the United States.” To the contrary, the evidence demonstrates that Mr. Perez sought and received approval from a DOJ ethics official, a DOJ professional responsibility official, and the head of the Civil Division before proceeding. As one ethics official concluded in writing, “there is no ethics rule implicated by this situation and therefore no prohibition against your proposed course of action.” Far from supporting allegations that Mr. Perez brokered an unethical arrangement with St. Paul, the overwhelming evidence obtained during the investigation indicates that he was properly performing his role as head of the Civil Rights Division, effectively representing the position of the United States government, and advancing the national interest in combating discrimination.

Erroneous Claim that Perez was Defending a Weak Legal Theory

The Republican report disparages the “disparate impact” legal standard for combating discrimination based on race, religion, sex, national origin, familial status, and disability under the Fair Housing Act as “inchoate.” Similarly, Republican Members sent a letter to the Justice Department on September 24, 2012, attacking this legal standard as “questionable” and condemning Mr. Perez for defending it as counter to the “ends of justice.”To the contrary, the “disparate impact” standard has been used by the Justice Department for decades to combat discrimination, has been upheld by 11 federal courts of appeal, and has resulted in the award of millions of dollars to injured victims.

Erroneous Claim That the Department Violated the “Rule of Law”

The Republican report claims that the Department violated “the rule of law to exert arbitrary authority to jointly resolve two wholly unrelated matters, including one in which the United States is not even a party.” To the contrary,Assistant Attorney General Tom Perrelli explained: “[T]here are all manner of situations where the United States—or where parties or the United States will resolve things on multiple fronts at the same time, you know, recognizing that some claims maybe connected, some claims may be unconnected. So I don’t think that’s atypical.” DOJ ethics officials and Tony West, the head of the Civil Division, agreed that because the United States is a “unitary actor” seeking the best overall results for the nation, it was proper for Mr. Perez to negotiate both the Magner case and False Claims Act cases.

Erroneous Claim that the Political Appointees “Overruled”Career Attorneys

The Republican report claims that “political appointees overruled trial-level career attorneys.” To the contrary, the decision not to intervene in the Newell case was made by Tony West, head of the Civil Division, based on the recommendation of then Deputy Assistant Attorney General Michael Hertz and then head of the Fraud Division, Joyce Branda. Mr. Hertz, who passed away in 2012, had been a career employee for more than 30 years and was widely regarded as the Department’s preeminent career expert on False Claims Act cases. Mr. Hertz’s opposition to intervening solidified after a meeting with the Mayor of St. Paul and other City officials on December 13, 2011, after which he pulled Ms. Brandaaside and told her “this case sucks.”

Erroneous Claim that Perez Sought to “Pressure” HUD and DOJ

The Republican report argues that the agreement was reached as “a direct result of Assistant Attorney General Perez’s successful efforts to pressure the Department of Housing and Urban Development, the U.S. Attorney’s Office in Minnesota, and the Civil Division within the Department of Justice.” To the contrary, all three offices agreed with the recommendation to decline intervention, and none stated that they were pressured. Helen Kanovsky, HUD General Counsel, stated that “we sent the memo that said on the merits of the Section 3 claim, which is the basis for the False Claims Act claim, we do not think that the government should go forward.” Similarly, the U.S. Attorney stated that he concurred with all of the recommendations in the declination memo and agreed with “all of the rationale, including the Magner v. Gallagher factor.”Finally, Mr. West, the head of the Civil Division, stated: “[T]here was a consensus that had coalesced in the Civil Division that we were going to decline the Newell case. … My understanding is that certainly that was Mike Hertz’ view, it was Joyce Branda’s view, and that represented the view of the branch, U.S. Attorney’s Office. Also, I think around that time period would be included in that consensus, it was my view too. It was the view of the client agency, HUD. And this was a view that we had all arrived to having taken into consideration the numerous factors, including the Magner case, as really as reflected in our memo.”

Erroneous Claim That Perez Exceeded the “Authorityof His Office”

The Republican report claims that “Perez exceeded the scope and authority of his office, manipulated the protocols designed to preserve the integrity of intervention decisions, worked behind the scenes—andat times behind the backs of his colleagues at the Department with whom decision-making authority rested—andtook it upon himself to strike an agreement with the City.” To the contrary, Tony West, who led the Civil Division and had authority to decide whether to intervene in the False Claims Act cases, said: “I wanted to make sure that we employed our normal, regular process in assessing whether or not intervention was appropriate in this case, and that’s what we did.” Mr. West also explicitly approved of Mr. Perez negotiating with St. Paul. There was no dispute among any witnesses interviewed by the Committees that it was appropriate for Mr. Perez, as head of the Department’s Civil Rights Division, to handle the Magner matter and contact St. Paul to urge the City to withdraw the case.

Erroneous Claim That Agreement “Exposed Serious Management Failures”

The Republican report claims that the agreement with St. Paul “exposed serious management failures within the Department of Justice, with senior leadership—including Attorney General Holder and then-Associate Attorney General Perrelli—unaware that Assistant Attorney General Perez had entered into an agreement with the City of St. Paul.” The Republican report ignores the fact that Tony West, then head of the Civil Division, was responsible for the intervention decision, which did not require approval from the Associate Attorney General or Attorney General. Career experts in the False Claims Act,including Ms. Branda, who was then the career Director of the Fraud Division,concluded that it was appropriate to consider Magner and the civil rights equities in this intervention decision.

Erroneous Claim That Perez Attempted to “Cover Up” the Agreement

The Republican report claims that Mr. Perez “attempted to cover up the presence of Magner as a factor in the intervention decision” by leaving a voicemail for an attorney in the U.S. Attorney’s Office saying that he “wanted to make sure that the declination memo … doesn’t make any mention of the Magner case.” The Republican report disregards Mr. Perez’s explanation, which is that he was becoming “impatient” because of the delay and was concerned that St. Paul would raise additional demands. He explained: “[I]f the only issue that is standing in the way is how you talk about Magner, then don’t talk about it.” The Republican report also disregards the fact that the attorney in the U.S. Attorney’s office returned his call within one day to fully resolve the matter, and that Magner was explicitly included in the declination memo.

Erroneous Claim that HUD’s Reason for Opposing Intervention Was a “Pretext”

The Republican report claims that HUD’s reason for returning to its original position opposing intervention is “unsupported by the evidence and suggests a pretext for a politically motivated decision to prevent the Supreme Court from hearing Magner.” To the contrary, Helen Kanovsky, HUD General Counsel, explainedthat HUD would not benefit from intervention because it had already entered into a Voluntary Compliance Agreement (VCA) with St. Paul: “HUD had no equities in this issue any longer. All of our programmatic goals had already been met.” Sara Pratt, HUD’s career Deputy Assistant Secretary for Enforcement and Programs, confirmed this account, stating: “HUD’s programmatic concerns had been fully resolved with the VCA and other activities by the City of St. Paul.” Noevidence obtained by the Committeesprovides any basis to question the truthfulness of Ms. Kanovsky or Ms. Pratt.

Erroneous Claim that Department Made a “Secret Deal”

The Republican report claims that Mr. Perez made a “secret” deal. To the contrary, the memo officially declining to intervene in the Newell casewas signed by then Assistant Attorney General for the Civil Division Tony West on February 9, 2012, based on the advice of career officials with decades of experience. The memo set forth “a number of factual and legal arguments that support a decision not to intervene,” including St. Paul’s withdrawal of the Magner case. It stated: “[T]he City is dismissing a Supreme Court appeal in the Gallagher v. Magner case, a result the Civil Rights Division is anxious to achieve. Declination here would facilitate that result which, we are advised, is in the interests of the United States.”