Sessions Managed to Anger Both His Employees and His Boss
(Bloomberg Opinion) -- Jeff Sessions’s term as U.S. attorney general has ended — not with a bang, but with a whimper. In two years, he managed to do significant damage to the independence and standing of the Department of Justice. Yet astonishingly, despite this dubious accomplishment, Sessions also completely failed to satisfy the wishes of his principal, President Donald Trump. You wouldn’t think it was possible to pull off the double feat of alienating both the people who work for you and the person you work for, but Sessions was up to the task.
It’s not that Sessions had the wrong resume for the job. He was the U.S. attorney for the Southern District of Alabama for 12 years, from 1981 to 1993. He was elected attorney general of Alabama after that, and served for two years before beginning a 20-year career in the U.S. Senate. Sessions’s experience as a U.S. attorney during the Ronald Reagan and George H.W. Bush presidencies meant that he had a good working understanding of the norms and customs of the Department of Justice, especially the value of independent prosecutorial judgment and independent legal judgment.
Sessions, unlike Trump, cannot use ignorance as an excuse for the policies that harmed his department.
Sessions’s deviations from Department of Justice norms often stemmed from efforts to enforce policies of questionable legality announced by Trump. One excellent example was Sessions’s efforts to use the department to punish so-called sanctuary cities by denying them federal funding. In reality, Trump’s executive order on sanctuary cities was blatantly unconstitutional, and was mostly struck down by the federal judiciary. But Sessions continued to threaten to pull some federal grants even after the judge’s ruling.
Sessions also sold out the Justice Department’s independent legal judgment when the department announced it would not defend the constitutionality of the Affordable Care Act, despite having done so under Barack Obama’s administration. This about-face led to the resignation of the senior career attorney who had previously led the effort.
The core problem here is, when the Department of Justice claims before the courts that a law is constitutional, it’s supposed to be making that determination based on principles of law, not partisanship. As a general matter, the department has long had a strong policy of defending the constitutionality of any law duly enacted by Congress and signed by the president.
Exceptions, like the Obama administration’s refusal to defend the constitutionality of the Defense of Marriage Act, are meant to come only after many years of legal developments have profoundly undercut a law’s constitutionality. That was not true of the Affordable Care Act, which had survived constitutional challenge at the Supreme Court not long before Sessions’s Justice Department walked away from it.
Deviating from the norm of defending laws’ constitutionality — especially in the middle of a case — means telegraphing to the judiciary that the department’s legal opinions are the product of politics, not an independent legal judgment. That harms the credibility of the department in all future legal proceedings.
Sessions’s reversal of Obama’s prosecutorial priorities was arguably less harmful to the department. Choosing to go after low-level marijuana crimes, which the Obama administration had chosen not to prosecute, probably falls within the range of plausible discretionary judgment that may differ from administration to administration. Reversal of prior policies on immigration and gender identity can certainly be criticized as legally and morally incorrect, but fell within Sessions’s authority as a political appointee representing the views of his president.
Sessions did, however, harm the department by claiming, contrary to statistical fact, that violent crime was “back with a vengeance” and sweeping the country. The public has become accustomed to Trump’s non-factual statements. But for the country’s chief prosecutor to misrepresent crime data is particularly outrageous — given that the Bureau of Justice Statistics, which reports to him, is the national body responsible for keeping track of crime.
This distortion of Justice Department tradition reached a kind of apex in July when Sessions appeared to nod and smile when a group of high school students at a conservative leadership summit chanted “lock her up” in reference to Trump’s 2016 presidential challenger, Hillary Clinton. Sessions even repeated the words.
Although Sessions later said he should’ve taken the opportunity to tell the kids about the presumption of innocence, that non-apology was far from sufficient. The spectacle of the attorney general of the United States appearing to embrace a partisan criminal allegation that has never been charged strips the idea of nonpartisan criminal investigation of almost all meaning.
Nevertheless, despite all these efforts, Sessions never managed to satisfy his boss. The main reason, no doubt, was Sessions’s decision to recuse himself from the Russia investigation after he was caught having said incorrectly under oath that he hadn’t met with Russian officials during the Trump presidential campaign. Trump never stopped criticizing Sessions after that, and it seemed there was nothing Sessions could do to get back in Trump’s good graces.
What’s more, Trump seems to have actually thought that the Department of Justice under Sessions would commence investigations or prosecutions of Clinton and other prominent Democrats. I suppose we should be grateful that Sessions never brought such politically motivated prosecutions, but Trump saw Sessions’s respect for at least some political norms as disloyal.
Matt Whitaker, the chief of staff at the Justice Department, was selected by Trump as acting attorney general. He is also expected to take over supervision of special counsel Robert Mueller’s investigation from Deputy Attorney General Rod Rosenstein. With Rosenstein out of the chain of command, it would presumably be easier for Trump to order a new attorney general to fire Mueller.
But for now, as Trump commented in his post-midterms news conference earlier Wednesday, he has little to gain by firing Mueller. And he has much to lose: firing Mueller could motivate the Democratic House to start impeachment proceedings.
Sessions’s legacy as the nation’s top law enforcement official is therefore going to be a weak one. It’s a sad commentary that almost the only good thing that can be said about his tenure is that Trump hated him for a recusal that he properly made and for improper prosecutions that he refused to bring.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
©2018 Bloomberg L.P.