Today, Congressman Jerrold Nadler (D-NY), Ranking Member of the Judiciary Subcommittee on the Constitution and Civil Justice, opposed the GOP’s ongoing attacks on Tom Perez, the current Assistant Attorney General of the Justice Department’s Civil Rights Division and President Obama’s nominee to be the next Secretary of Labor.  At a Joint Hearing of the Committee on Oversight and Government Reform’s Subcommittee on Economic Growth, Job Creation and Regulatory Affairs and the Committee on the Judiciary’s Subcommittee on the Constitution and Civil Justice on “DOJ’s Quid Pro Quo with St. Paul: A Whistleblower’s Perspective,” Nadler spoke in defense of Perez and lambasted the Republicans’ politically-motivated attack on the Obama administration.

“Assistant Attorney General Perez has done a tremendous job leading the Civil Rights Division, and it is long past time to end the smear campaign against him,” said Nadler.  “We should all be thankful for his service and look forward to his stewardship as Secretary of Labor.  We do not serve the public interest by holding this hearing as part of a shameful smear campaign.”

Below is Nadler’s complete opening statement, as prepared:

“Today’s hearing is not about Mr. Newell or about protecting legitimate whistleblowers.  It is about attacking Tom Perez, the current Assistant Attorney General of the Justice Department’s Civil Rights Division and President Obama’s nominee to be the next Secretary of Labor.  Tomorrow is the Senate mark-up of Assistant AG Perez’s nomination.  The entire purpose of this hearing is to attack the leadership and reputation of one of this nation’s best public servants, Tom Perez.

“Of course, the Constitution grants the Senate – not the House – the role of providing advice and consent to the President on nominees.  Whatever input into that process we might wish to have, it should not devolve into the type of partisan attack that this hearing represents.

“My Republican colleagues have declared that Assistant AG Perez ‘manipulated justice and ignored the rule of law’ by successfully negotiating an agreement with the City of St. Paul, Minnesota to withdraw its appeal to the Supreme Court in Magner v. Gallagher.  But Assistant AG Perez has done nothing wrong here; in fact, he did what any good lawyer would do and certainly what the steward of the Justice Department’s Civil Rights Division should have done to serve the best interests of the United States. 

“The Magner case challenged the use of disparate impact theory to enforce our housing laws.  Disparate impact theory allows the government to challenge policies or practices that, though seemingly neutral on their face, in practice, result in discrimination against a protected class.  It is a critical tool for weeding out all forms of discrimination – whether intentional or not – and ensuring equality of opportunity for all.  It has long been used by Republican and Democratic administrations to attack discriminatory lending, employment, and housing practices. 

“An adverse ruling from the Court in Magner could have eliminated use of this critical civil rights enforcement tool. 

“Assistant AG Perez viewed Magner – where landlords of low-income housing were making the novel argument that disparate impact theory prevented St. Paul from enforcing its housing codes – as an extremely poor factual vehicle for presenting this critical theory to the Court.  Rightly concerned that ‘bad facts made for bad law,’ he seized the chance to reach an agreement with the City to withdraw Magner and avoid the risk of an adverse ruling.

“My Republican colleagues are unhappy that the Court did not get the opportunity to eliminate disparate impact theory.  After all, they dispute the use of disparate impact and dislike the robust enforcement of civil rights laws.  And they are unquestionably angry at Mr. Perez for his role in convincing St. Paul to withdraw it Magner appeal.  But their complaints, and the accusations that they have leveled against Assistant AG Perez, have no legitimate legal, ethical, or professional responsibility basis.

“In fact, when the City of St. Paul suggested that it would withdraw its Magner appeal if the Civil Right Division declined to intervene in Mr. Newell’s False Claims Act case, Assistant AG Perez sought and received clearance from ethics and professional responsibility experts who approved such an agreement and his role in negotiating it.  This, alone, debunks any claim of improper conduct.  Even accepting the Republicans’ characterization of the agreement as a ‘quid pro quo,’ whereby the City withdrew its appeal ‘in exchange’ for the decision against intervention in Mr. Newell’s case, there is nothing unethical or improper with reaching or brokering such an agreement. 

“Nor did Assistant AG Perez pressure career DOJ Lawyers into recommending against intervention in Mr. Newell’s case or somehow manipulate the Civil Division’s decision-making process.  As the documents and testimony reviewed over the course of the Committee’s 18-month investigation of this matter confirm, the decision not to intervene in Mr. Newell’s case was made by the Civil Division, based on its independent evaluation of the evidence, witnesses, litigation risks, lack of HUD support for intervention, burden on the St. Paul taxpayers, and anticipated withdrawal of the City’s Magner appeal. 

“At the end of the day, the Justice Department’s top career lawyers disagreed with earlier recommendations of more junior colleagues because they concluded that Mr. Newell did not have a strong False Claims Act case on its merits.

“My colleagues are free to disagree with the Civil Rights Division’s final decision in Mr. Newell’s case, just as they are free to disagree with Assistant AG Perez and the Division’s desire to protect disparate impact theory.  But let’s not pretend that this disagreement has any legitimate ethical or professional responsibility basis.  This is, at best, a policy disagreement; at worst, simply partisan politics.

“Senator Harkin recognized this when he canceled a hearing on occupational health and safety to which Mr. Newell had been invited to testify.  Of course, Mr. Newell’s complaints have nothing to do with that subject.  And Senator Harkin, who is overseeing Assistant AG Perez’s nomination as Chair of the Senate HELP (Health, Education, Labor and Pensions) Committee, appropriately dismissed that effort as a transparent ‘attack on the President’s nominee for Secretary of Labor, Thomas Perez,’ and refused to allow what he deemed an ‘abuse of process’ to go forward.

“It is unfortunate that our Committee Majority did not follow Senator Harkin’s lead.  It is also unfortunate that Mr. Newell has been dragged into this partisan fight.  His disappointment that the United States declined to intervene in his False Claims Act case is understandable.  But that decision was never Assistant AG Perez’s to make and he did not make it.  The decision against intervention in the Newell case by the Civil Rights Division’s top False Claims Act lawyers was the right choice, as is confirmed by the testimony that we will hear from Shelley Slade today, as well as by the letters that we have received from other career False Claims Act lawyers, who similarly view Mr. Newell’s case as a weak candidate for government intervention.  I would ask unanimous consent to have the letters that we’ve received made part of the record of this hearing.

“Assistant Attorney General Perez has done a tremendous job leading the Civil Rights Division, and it is long past time to end the smear campaign against him.  We should all be thankful for his service and look forward to his stewardship as Secretary of Labor.  We do not serve the public interest by holding this hearing as part of a shameful smear campaign.”

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