Leave Jeff Sessions Alone!
January 5, 2017 (Fault Lines) – There is an old saying in politics, “To the victor belongs the spoils.” While it can refer to the patronage system of trading jobs for political favors, it can refer more broadly to the idea that the winner gets to direct policy, and the loser watches from the sidelines. Another famous phrase comes to mind, “Elections have consequences.”
As you may recall, when newly elected President Obama crowed about winning and told Republicans, ‘I won shove it,’ a headline was “President Obama Works to Be Bipartisan But Shows There Are Clear Limits.” That’s certainly one way to look at it. But what a difference eight years makes in a journalist’s love of Realpolitik.
President-elect Trump, like every President before him, intends to put his stamp on the Executive Branch and propose legislation that he feels is best. Spoiler alert: it’s not what Obama or progressives want. Among the early decisions Trump made was to nominate Senator Jeff Sessions to be Attorney General. This has led to a gnashing of teeth and rending of garments. In the fashion of Anita Alvarez, Tim McGinty, and Judge Persky before him, Senator Sessions will get a Fault Lines defense—free of charge.
According to Sessions’s detractors, their reasons for despising resisting him are legion. But let’s take a step back, catch our breath, and reflect on previous Attorneys General. Janet Reno oversaw the tragic raid on the Branch Davidians, supported the Crime Bill, and famously sent Elian Gonzales back to Cuba at gunpoint. John Ashcroft’s Department of Justice famously wrote a memo in support of torture and backed the 9-11 expansion of federal power. Alberto Gonzales politicized the U.S. Attorneys’ Offices, by purging those without sufficient loyalty. Eric Holder supported domestic drone strikes on U.S. citizens. And Loretta Lynch doubled down on using dubious forensic science to deprive citizens of property and liberty.
Some real Cleveland Browns moments in there. So why then are so many people worked up about Sessions? Let’s address some of the bigger issues.
Many in media accuse Sessions of being a racist. You see in 1986, when he was being considered for appointment as a district judge, he was accused of being a racist. Bear in mind, this was during an era when famous Dixiecrat Strom Thurmond and Ku Klux Klan Exalted Cyclopes Robert Byrd served in the Senate. And shortly after this began the era of ‘Borking’ Presidential judicial nominees. Politics can be a dirty game, where the truth isn’t as important as the accusation.
While Sessions denied some of the claims, he suggested that other statements had been taken out of context. Yeah, that’s what everyone says when they get called on saying something dumb. Perhaps like Senator Byrd, he truly was a racist as a younger man. But if Senator Byrd can be forgiven, why can’t Sessions? After all, he never joined a club that thought burning crosses in front of houses was a noble activity.
Further, there might be evidence in the intervening thirty years that might reflect on whether he’s a racist. As it turns out, Sessions worked with a black attorney for twenty years, even making him chief counsel to the Senate Judiciary Committee. One could argue perhaps he was just the token black employee he used for cover. But that’s not all Sessions can point to.
Later, Sessions desegregated schools, assisted in the prosecution of Klan members, and broke up the Alabama Klan with a $7 million dollar judgment. It is perhaps noteworthy that one of those Klan members was the first white man to be executed for killing a black man since 1913.
As a Senator, he sponsored a resolution to honor Rosa Parks, spoke out against racial profiling, and spoke out against racist lending practices. Yeah, he’s spoken out against Black Lives Matters and has a complicated relationship with affirmative action. But he’s a conservative Republican, which doesn’t make him a racist. And those are the sorts of views conservative Republicans hold. While we can never really know what’s in his heart, he’s never done anything as outrageously racist as starting a chapter of the Klan. And there’s plenty of reason to doubt the application of racist here.
Sessions has been against immigration reform generally and amnesty specifically. It’s an issue that Sessions sees as both a law and order issue and populist one. So, he’s siding with the average American against the selfish interest of the Masters of Universe. And he successfully damaged it enough in the Senate, that it never passed the House.
The elephant in the room is that Trump ran heavily on immigration, which, depending on your views, means either enforcing the immigration laws or shooting illegal entrants on sight. So, yes, Sessions may do exactly what his boss wants and enforce immigration laws. No one should be surprised by that, and that’s not a reason to resist his appointment. Moreover, it’s not like the Obama Department of Justice was filled with great humanitarians. Plus, Trump’s plan may not represent much of sea change anyhow. Presidents come and go, but the bureaucracy is forever.
Similar to his resistance to immigration reform, is Sessions has opposed the recent attempt to roll back sentences on certain offenders. This has earned him exuberant praise from Bill Otis. Again, the conventional wisdom here is that Sessions’s experience as a prosecutor makes him hostile to reform. While that may not be automatically true, Sessions has stood in the way of sentencing reform.
His resistance to de-populating federal prisons is not completely unfounded. There are those experts who point to evidence that longer sentences have reduced crime, while others disagree. When both sides have convincing arguments and evidence, it’s a conundrum, which logic often fails to resolve.
In any event, an argument can be made that Sessions’s opposition is rational. An application of the precautionary principle suggests that it’s better to err on the side of not reducing sentences rather than risk the system wide ruin that accompanies high crime rates. Granted, if you’re the person unjustly imprisoned for decades, the cruelty of math is just that.
There are a number of issues for which Sessions has earned the ire of progressives, among them his statements of the Voting Rights Act and his perceived weakness on the Civil Rights Act. If you’re inclined to see Sessions as an unabashed racist, then this, like everything else mentioned here, will just feed into your confirmation bias. But some have argued that Sessions has acted on his (non-racist) principles. Your mileage may vary, depending on what you think of those principles.
In opposing federal hate crime legislation, Sessions said the following:
For years legal commentators and jurists have expressed concern at the tendency of Congress, for the political cause of the moment, to persist in adding more and more offenses to the U.S. Criminal Code that were never Federal U.S. crimes before. This is being done at the same time that crime rates over the past decade or so have dropped and State and local police forces have dramatically improved their skills and technology. There are really fine police forces all over the country today. An extraordinary number of police officers have college degrees and many advanced degrees.
I think two questions should be asked initially. First, is this a crime that uniquely affects a Federal interest, and can it be addressed by an effective and enforceable statute? Second, have local police and sheriffs’ offices failed to protect and prosecute this vital interest?
Most people do not understand that a majority of crimes — theft, rape, robbery, and assault — are not Federal crimes and are not subject to investigation by the FBI or any other Federal agency. They could not do so if they wanted to because they have no jurisdiction. They can only investigate Federal crimes. It has been this way since the founding of our country, and it fixes responsibility for law enforcement on local authorities where it should be.
It sounds like he might be an Attorney General less interested in prosecuting state crimes as federal crimes and may accord state law more weight in charging decisions. That is potentially good news for some defendants. On top of it, he is a former U.S. Attorney and state Attorney General. He probably has a better understanding than most of the recent Attorney Generals of the limitations of Main Justice and capacities of other sister agencies. That could mean for more independence for U.S.A’s and less federalization.
Sure, a commitment to federalism will sometimes result in outcomes you might not individually prefer, but that’s the case of almost any legal principle. Moreover, at the dawn of the Trump administration, some opponents to federalism are re-thinking their opposition.
Being Attorney General is a tough job that inevitably leaves some people unhappy. But so long as the President remains happy, the Attorney General remains employed. That coupled with the strong likelihood that the nominee already shares the President’s views on some key issues means the Attorney General is carrying out the President’s vision for the Department of Justice. Trump won, he sees Sessions as the best agent for his plan, and there’s not much left to do but accept reality and hope he exceeds past Attorney Generals.