The House Committee on Oversight and Government Reform and the Judiciary Committees for both the House and Senate released a lengthy 68-page report on Labor Secretary nominee Thomas Perez this week. The report focuses on a highly unusual quid pro quo deal Perez struck with the city of St. Paul, Minn., to get it to drop a case bound for the Supreme Court.
Perez, who is currently the Justice Department top civil rights enforcer, arranged to get the federal government to drop out of two cases pending against city. In exchange, the city dropped a case it was pursuing that could have let the Supreme Court clarify when the theory of “disparate impact” could be used in civil rights cases. Perez is a staunch advocate of the theory, which holds that it is not necessary to show an intent to discriminate to prove a discrimination case.
Rep. Darrell Issa, R-Calif., chairman of the House Oversight and Government Report Committee, said in a statement:
After a year of investigation by three congressional committees, we have found that Mr. Perez inappropriately used a whistleblower as bargaining chip and passed on an opportunity to collect $200 million for taxpayers. This occurred as part of a deal he arranged to ensure an ideological pet policy of the Obama Administration would avoid Supreme Court scrutiny. In addition, Perez took steps attempting to cover-up his involvement in the quid pro quo and offered numerous misleading statements to investigators that are contradicted by the evidence. Mr. Perez’s conduct has stained the integrity of the Justice Department and created serious doubt about its commitment to protecting the legal rights of whistleblowers who come forward with legitimate information about abuses of taxpayer funds.
Perez will presumably offer his take on the matter when he appears before the Senate Health, Education, Labor and Pensions Committee tomorrow morning.
There is much to digest in the committees’ report. In the following section, the report alleges that Perez tried to hide the fact that he was arranging a quid pro quo from others in the government.
On the morning of January 10, 2012, Assistant Attorney General Perez left a voicemail for Greg Brooker, the Civil Division Section Chief in the U.S. Attorney’s Office in Minnesota. In that voicemail, Perez said:
Hey, Greg. This is Tom Perez calling you at – excuse me, calling you at 9 o’clock on Tuesday. I got your message. The main thing I wanted to ask you, I spoke to some folks in the Civil Division yesterday and wanted to make sure that the declination memo that you sent to the Civil Division – and I am sure it probably already does this – but it doesn’t make any mention of the Magner case. It is just a memo on the merits of the two cases that are under review in the qui tam context. So that was the main thing I wanted to talk to you about. I think, to use your words, we are just about ready to rock and roll. I did talk to David Lillehaug last night. So if you can give me a call, I just want to confirm that you got this message and that you were able to get your stuff over to the Civil Division. 202 [redacted] is my number. I hope you are feeling better. Take care.
A career line attorney’s notes from a subsequent phone conversation between Brooker and attorneys in the Civil Fraud Section and the U.S. Attorney’s Office confirm Perez’s request. The notes describe a Tuesday morning “message from Perez” in which he told Brooker “when you are working on memos – make sure you don’t talk about Sup. Ct. case.” Brooker told those on the call that Perez’s request was a “concern” and a “red flag,” and that he left a voicemail for Perez indicating that Magner would be an explicit factor in any declination memo.
During his transcribed interview, the Committees asked Perez about this voicemail. Perez maintained that the voicemail was merely an “inartful” attempt to encourage Brooker to expedite the preparation of a concurrence memo by the U.S. Attorney’s Office. Perez testified:
So I was – I was confused – “confused” is the wrong term – I was impatient on the 9th of January when I learned that the U.S. Attorney’s Office still hadn’t sent in their concurrence, because I had a clear impression from my conversation with Todd Jones that they would do that. So I called up and I was trying to put it together in my head, what would be the source of the delay, and the one and only thing I could really think of at the time was that perhaps they hadn’t – they didn’t write in or they hadn’t prepared the language on the Magner issue, and so I admittedly inartfully told them, I left a voicemail and what I meant in that voicemail to say was time is moving. . . . And so what I really meant to communicate in that voice message, and I should have – and what I meant to communicate was it is time to bring this to closure, and if the only issue that is standing in the way is how you talk about Magner, then don’t talk about it.
When pressed, however, Perez stated that he never asked Brooker about the reason for the delay and that he only assumed through “the process of elimination” that the presence of Magner as a factor in the decision was delaying the preparation of the memo. He also testified that he believed the memos had not been transmitted to the Civil Division at the time he left the voicemail.
When presented with a transcription of the voicemail and asked why he used the past tense verb “sent” if he believed the memos had not be transmitted to the Civil Division, Perez stated that he disagreed with the transcription of the voicemail. After the Committees played an audio recording of the voicemail for Perez, he suggested that he was unable to ascertain what he had said. He stated: “Having listened to that, I don’t think that – I would have to listen to it a number of additional times.” However, later in the voicemail Perez again used the past tense, saying he wanted to confirm with Brooker “that you were able to get your stuff over to the Civil Division.” Perez did acknowledge that his voicemail for Brooker did not mention anything about a delay.
The words that Perez spoke in his voicemail speak for themselves. Perez said: “I . . . wanted to make sure that the declination memo that you sent to the Civil Division . . . doesn’t make any mention of the Magner case. It is just a memo on the merits of the two cases that are under review in the qui tam context. So that was the main thing I wanted to talk to you about.” No other witness interviewed by the Committees has indicated that there was any delay in the preparation of a concurrence memo from the U.S. Attorney’s Office. Indeed, the U.S. Attorney’s Office did not even prepare a concurrence memo for the Newell case [Note: Newell is one of the cases the Justice Department would drop out of as part of the deal] instead, it communicated its concurrence in an email from Greg Brooker to then-Civil Fraud Section Director Joyce Branda on February 8, 2012.
Moreover, in a contemporaneous email to Brooker – sent less than an hour after the voicemail – Perez wrote to him: “I left you a detailed voicemail. Call me if you can after you have a chance to review [the] voice mail.” This email does not mention any concern about a delay in transmitting concurrence memos. Instead, the email suggests that Perez intended to leave instructions for Brooker, which matches the tone and content of the voicemail to omit a discussion of Magner from the declination memos. Later the same day, at 1:45 p.m., Perez again emailed Brooker, asking “[w]ere you able to listen to my message?”
The report concludes:
The only reasonable interpretation of the words spoken by Assistant Attorney General Perez in his January 10 voicemail is that he desired the Newell and Ellis [The other case the Justice Department drooped out of in the deal] memos to omit a discussion of Magner. Acting Associate Attorney General West told the Committees that it would have been “inappropriate” to omit a discussion of Magner in the Newell and Ellis memos. U.S. Attorney B. Todd Jones also told the Committees that it would have been inappropriate to omit a discussion of Magner. Thus, even other senior DOJ political appointees felt that Perez was going too far in his cover-up attempt. In addition, the fact that the quid pro quo was not reduced to writing allowed Perez to cover up the true factors behind DOJ’s intervention decision. When asked by career Civil Fraud attorneys about whether the deal was in writing, Perez responded: “No, just oral discussions; word was your bond.” Thus, with nothing in writing, only the fortitude of Assistant U.S. Attorney Greg Brooker in resisting the voicemail request prevented Perez from inappropriately masking the factors in the Department’s decision to decline intervention in Newell and Ellis.