Yeomans Work

Sessions, Trump, Robert Jackson, Truth, and the Rule of Law

November 17, 2017

Attorney General Jeff Sessions’ turn in the spotlight this week and events in Alabama left behind three major questions regarding the attorney general:

1. Does the Attorney General understand what a lie is?

At his testimony before the House Judiciary Committee on Tuesday, Sessions repeatedly took offense at insinuations that he had lied previously to Congress by denying his contacts with Russians and knowledge of the contacts of others on the Trump campaign. Indeed, he refused the opportunity to change parts of his testimony, which have been shown to be flatly incorrect. He met at least twice with the Russian ambassador; campaign foreign policy advisor George Papadopolous told him at a meeting of his contacts with Russians; and another advisor, Carter Page, informed him that he was headed to Russia. Bizarrely, Sessions insisted that he did not recall the meeting with Papadopolous, but was quite certain he told him that arranging a meeting between Trump and Putin was a bad idea. He couldn’t remember anything else about the meeting.

Indeed, Sessions flaunted a severe case of testimonial amnesia throughout the hearing, particularly when asked about Russia. It is understandable that busy people occasionally forget things. And experience teaches that memory gaps sometimes expand with age. But Sessions’s total blackout on all things Russian is striking.

Sessions’s indignation that anyone would accuse him of not speaking the truth smacked of a man caught dissembling. Alternatively, Sessions’s concept of truth may have been dulled by the rigors of public life in the political arena where spin and the demands of self-aggrandizement too often prevail.

2. Will Sessions yield to pressure from President Trump and the tin foil helmet caucus of the Republican Party to appoint a special prosecutor to investigate Hillary Clinton?

At Tuesday’s oversight hearing, Republican members, particularly Jim Jordan of Ohio and Louis Gohmert of Texas, lobbied Sessions strongly to appoint a special prosecutor to investigate a vast conspiracy linking the Clinton Foundation, its donors, a uranium deal, Hillary and Bill Clinton, Susan Rice, David Petraeus, Jim Comey, Robert Mueller, Loretta Lynch, and others in nefarious activities. Gohmert produced a colorful chart connecting the supposed actors. As even Shep Smith of Fox News declared, this Uranium One conspiracy is a figment of fevered partisan imaginations.

Assistant Attorney General Stephen Boyd set the Department of Justice expatriate crowd atwitter by answering a letter from committee members, in which he stated that some of the matters referred to in their letter would be referred to career prosecutors who would investigate and make a recommendation regarding whether a special prosecutor should be appointed.

In normal times, Boyd’s letter would have been viewed as a pro forma response to another goofy demand from House members – thanks for your letter and we’ll refer it to the professionals in the Department for routine processing. In these far-from- normal times, however, Boyd’s letter triggered fears that Sessions was giving in to demands by Congressional Republicans and Trump that the Justice Department investigate Clinton. That response was reasonable in view of Trump’s repeated tweets demanding an investigation. The reaction showed the consequences of politicizing criminal law enforcement. Trump’s motive was to deflect attention from the tightening noose of the Russia investigation onto a target that always rankles his base – Hillary Clinton. But, in exploiting the criminal justice system for his own political salvation, Trump made it harder for the public to accept any action by DOJ as non-political.

Sessions, fortunately, gave the impression at the hearing that he would not appoint a special counsel without sufficient evidence to satisfy traditional DOJ standards. But he needs to do much more. He must speak out about the independence of the Department of Justice and the need to base prosecutorial judgments on law and facts without consideration of politics or personal favor. As attorney general, Robert Jackson delivered the most famous and powerful such address in 1940 in the Great Hall of the Department of Justice. It is time for our weak, beleaguered attorney general to do the same. The integrity of the institution he leads depends on it.

3. Will Sessions remain Attorney General?

Sessions has alienated his boss, who is livid over Sessions’s decision to recuse himself from the Russia investigation rather that corrupt justice by protecting Trump from investigation. He is under pressure from Republican caucus members who take their lead from Trump and want to deflect the Russia investigation onto Hillary Clinton. Some Republican members are concerned about the inaccuracy of his testimony. House and Senate Democrats are uniformly appalled that Sessions is attorney general (many think he committed perjury), but now fear his departure because it would allow Trump to replace him with someone who would reclaim supervision of the Russia investigation and might be more likely to do Trump’s bidding than Deputy Attorney General Rod Rosenstein, who now oversees the probe.

As if this stew weren’t sufficiently complex, Roy Moore dropped in. Moore, running for the seat Sessions vacated when he became Attorney General, came under pressure from much of the Republican establishment to drop out of the election after it became indisputable that he was a creepy predator who targeted girls and young women. By week’s end, his efforts to portray himself as a victim and perversely to weaponize Christianity in his defense appeared to be failing. Rather than let the seat go to the thoroughly estimable Democrat, Doug Jones (prosecutor of bombers of the 16th Street Baptist Church), Mitch McConnell and unidentified White House sources floated the notion that Republicans needed a strong, well-known and well-liked write-in candidate – none other than Jeff Sessions.

McConnell would like it because he thinks Sessions can win and keep the seat Republican. Trump loves the idea because he has been eager for Sessions’s departure since March. Federal law would allow Trump to appoint an acting attorney general for a minimum of 210 days who could assume control of the Russia investigation, including the power to fire Robert Mueller. He could appoint any currently serving official who was appointed by the president and confirmed by the Senate, which would allow him to choose from an array of loyal cronies.

The only sticking point is Jeff Sessions, who seems genuinely infatuated with being attorney general. Now, more than ever, he needs to speak out about the majesty of that job and its crucial role in protecting the rule of law. Robert Jackson already gave him a pretty good outline.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.