To: Interested Parties
From: Elliot Mincberg, Senior Fellow, People For the American Way
Date: December 8, 2016
Re: Why Jeff Sessions is the Wrong Choice to be the “People’s Lawyer” – the Attorney General of the United States
History has long recognized that the Attorney General of the United States, a position established by Congress in 1789, is not the president’s lawyer but the “people’s lawyer.” As President Obama explained when he nominated Loretta Lynch to that important job:
The person in this position is responsible for enforcing our federal laws, including protecting our civil rights…. [T]he Attorney General oversees the vast portfolio of cases, including counterterrorism and voting rights; public corruption and white-collar crime; judicial recommendations and policy reviews — all of which impact on the lives of every American, and shape the life of our nation.
Comparing the Attorney General’s enormous and consequential portfolio with the record of Sen. Jeff Sessions, President-elect Trump’s selection for that office, however, supports the New York Times’ conclusion that making him Attorney General would be “an insult to justice.” This conclusion becomes clear based on ten key Attorney General responsibilities: enforcing federal criminal law; protecting American consumers; upholding national security; protecting the environment; implementing immigration-related laws; providing impartial legal advice to the president and executive branch agencies; protecting the right to vote; guarding equal educational opportunity for all US schoolchildren; promoting good police-community relations; and protecting the federal civil rights of all Americans.
Enforcing federal criminal law: By one estimate, there are well over 5,000 federal criminal laws that the Attorney General and the Department of Justice (DOJ) are charged with enforcing, including laws directed at violent crime, organized crime, white-collar crime, and more. Since there are insufficient resources to prosecute all possible criminal violations, a key question for any Attorney General is how to prioritize which laws to enforce and against whom. As former Bush Attorney General Michael Mukasey explained, an Attorney General should be “independent in deciding what cases to prosecute and what legal positions to take.” There are serious concerns about Sessions’ independence and sound judgment in these areas, however, based on his record as a senator and as a prosecuting attorney. One obvious example is whether to seek to prosecute Hilary Clinton and the Clinton Foundation, which both Sessions and Trump had previously advocated before the November election. And in light of Sessions’ virulent opposition to abortion, can he be trusted to enforce criminal and civil laws preventing interference with access to abortion clinics? His ardent pro-gun stance raises serious concerns about his enforcement of federal firearms laws, an increasingly important DOJ priority to protect people against terrorism and gun violence in recent years. And bipartisan hopes for federal criminal justice reform will be dashed if Sessions becomes Attorney General.
Protecting American consumers: A key Attorney General/DOJ responsibility is to protect consumers by enforcing antitrust laws that promote fair competition and pricing by corporations, as well as laws that combat financial and other fraud by big banks, mortgage brokers, and others. For example, the Antitrust Division estimates that it has saved millions for consumers through recent actions to promote competition concerning broadband internet, supermarket staples, and more. Sessions’ record, however, suggests that he will look out for the interests of big corporations, not consumers. For example, Sessions reportedly favored a recent proposed AT&T acquisition of Time Warner that even Trump opposed, and could well produce the virtual “elimination of antitrust enforcement” as Attorney General.
Upholding national security and the rule of law: Both in his role as the nation’s chief prosecutor and as the official to whom the FBI reports, the Attorney General plays a key role with respect to national security. The FBI, as well as Republicans and Democrats, have made clear that effective protection of national security consistent with the rule of law means that waterboarding and torture should not be pursued in terrorism investigations. Sessions clearly disagrees, and has voted against bipartisan proposals to ban such tactics. Sessions has also opposed efforts to curb overly aggressive electronic surveillance of Americans, as demonstrated by his opposition to bipartisan reform of the Patriot Act that was supported by the NSA itself. Sessions as Attorney General could produce an extremely troubling reversal in this area for the DOJ.
Protecting the environment: The Attorney General and DOJ play a crucial role in enforcing laws against damaging air and water pollution, such as in a recent prosecution resulting in an agreement requiring payment of over $2 million by U.S. Steel concerning harmful air pollution in Indiana, Illinois, and Michigan. Sen. Sessions, however, has an abysmal record on the environment; for example, he is not only a climate change denier but also proposed stripping the EPA of authority to regulate greenhouse gases.
Implementing immigration-related laws: The Attorney General and DOJ have important functions concerning our nation’s immigration laws. These include appointment of administrative immigration judges and appeals board members who decide most deportation and related cases, setting criteria for asylum, deciding on enforcement priorities, and more. Sessions’ extreme record on immigration, however, has been well documented. He has supported Trump’s campaign immigration promises, including stepped-up deportation, limiting or banning immigration by Muslims, and building a wall between the U.S. and Mexico, and has voted against bipartisan comprehensive immigration reform. As Attorney General, he could attempt to execute many of Trump’s extreme promises, including taking action against sanctuary cities that do not cooperate with federal authorities in harsh actions against immigrants. Sessions could well refuse to take action against school systems that refuse to serve children of undocumented immigrants, particularly given his opposition to birthright citizenship.
Providing impartial legal advice to the president and executive branch agencies: One of the Attorney General’s most important functions, through the Office of Legal Counsel (OLC), is providing advice to the president and agencies on the legality of proposed actions, ranging from whether the president can legally accept a gift or prize to the legality of proposed domestic surveillance programs. Republicans and Democrats have stressed the importance of independent legal judgment by the OLC. But with Sessions as Attorney General, there are serious concerns about his ability and willingness to provide such impartial legal advice on troubling issues, ranging from the possible violation by Trump as president of constitutional prohibitions due to his business interests to the legality of proposed policies on immigration, national security, and more.
Protecting the right to vote: The Attorney General and DOJ’s responsibilities include enforcing federal laws that ban discrimination in voting and registration based on race, language, minority status, age, and disability and that promote more accessible voter registration and voting for all, as well as monitoring the conduct of elections. For example, Alabama and Connecticut recently agreed to improve registration opportunities for all citizens to resolve complaints received by DOJ. Sen. Sessions, however, has an extremely troubling history on voting rights, including an unsuccessful voter fraud prosecution and vote suppression tactics when he was a prosecutor in Alabama, and opposition to voting rights protections as a senator. There is serious concern that as Attorney General under Trump, Sessions could cut back substantially on DOJ’s positive voting rights role and instead pursue harmful and unfounded claims of alleged voter fraud and try to force states to purge more voters from the rolls.
Guarding equal educational opportunity for all US schoolchildren: In addition to the Department of Education, the Attorney General and DOJ play an important role in this area by providing guidance and enforcing federal laws and rules that prevent discrimination and improper discipline, harassment and isolation of students based on race, national origin, religion, gender and gender identity, disability, and special education needs. For example, DOJ recently filed suit against Georgia for failing to provide appropriate therapeutic education services to more than 4000 students. Once again, however, Sessions’ record is cause for deep concern. As Alabama Attorney General, he strongly opposed a state court ruling, later upheld on appeal, that found serious inequities and inadequacies in funding for poor and minority schools. A recent review found little evidence to back up his supporters’ claims that he actively supported school desegregation efforts in Alabama. As a senator, he criticized laws providing special education for students with disabilities, calling them perhaps the “single most irritating problem for teachers across America today,” and leading to serious concern about whether he will effectively enforce those laws. And given his virulent anti-gay stance, Sessions is considered likely to withdraw DOJ guidance and litigation seeking to protect the rights of transgender students.
Promoting good police-community relations: The Attorney General and DOJ play a critical, two-part role in this area. They investigate and take action with respect to abusive police practices as in Cleveland, and also send in teams from the Community Relations Service to help calm and mediate problems, whether in urban areas or in rural locales, as occurred recently concerning the Dakota Access Pipeline. But Sessions has specifically criticized DOJ investigations and action as an abuse of federal authority and is considered likely to curtail such activity, making it much harder for DOJ to have the necessary credibility as it seeks to improve police-community relations.
Protecting the federal civil rights of all Americans: In addition to the specific areas described above, the Attorney General and DOJ have important roles in preventing and combating hate crimes and discrimination in housing, employment, and other areas based on race, gender, religion, national origin, and (with respect to hate crimes) LGBT status. Sessions’ record is again cause for deep concern. As a senator, Sessions fought against hate crime protection for LGBT persons and is considered likely to neglect or abandon this responsibility. He was one of only 22 senators who opposed the reauthorization of the Violence Against Women Act in 2013, and during the campaign he tried to defend Mr. Trump’s admitted assaults on women, leading to serious concerns about Sessions’ willingness to perform DOJ’s role in that area. And his “30-year record of racial insensitivity” and “hostility to the protection of civil rights,” including racist statements when he was an Alabama prosecutor, have led more than 150 civil rights and related groups to oppose his nomination. As one former DOJ official concluded, “I don’t think Americans can have confidence that civil rights will be safe in the hands of a Sessions Department of Justice.”