Trump’s Inquisitor

In February, President Donald Trump took to Twitter once again to attack his attorney general, Jeff Sessions. He decried as “DISGRACEFUL” Sessions’s referral to the Justice Department’s inspector general of a Republican accusation that department lawyers had acted improperly in seeking a Foreign Intelligence Surveillance Act (FISA) warrant in October 2016 to eavesdrop on Carter Page, a Trump campaign aide. Trump insisted that Sessions should have investigated the charges himself. This was only the latest in a long line of public recriminations Trump has unleashed against his attorney general, in what New York Times reporters Peter Baker and Katie Benner aptly described as “an almost Shakespearean rift.”

The most recent complaint and the long-standing rift are curious for several reasons. First, Sessions was one of Trump’s earliest and most loyal supporters. He was the first member of the Senate to back Trump’s presidential campaign. He was also one of the very few willing to defend Trump in the immediate aftermath of the release of the Access Hollywood tape, on which Trump boasted that, as “a star,” he could “grab [women] by the pussy.” Asked by a reporter whether Trump’s actions would constitute sexual assault, Sessions replied, “I don’t characterize that as sexual assault. I think that’s a stretch.”

Second, Sessions’s referral of the allegedly improper FISA warrant to the inspector general was the correct course, as that office, which is responsible for investigating complaints against Justice Department employees, was designed to have a degree of independence, precisely to avoid the appearance of a conflict of interest.

Third, if the president disagrees with a decision the attorney general has made, he can simply pick up the phone; he need not resort to Twitter and share his concerns with 49 million followers. Yet Trump has repeatedly condemned his attorney general in public statements, often on Twitter.

Of course, the reason for Trump’s pique could not be clearer. He has admitted that he rues the day he selected Sessions as attorney general because of a single decision Sessions made: to recuse himself from the investigation of Russia’s interference in the 2016 presidential election. The attorney general’s job is to “protect” the president, Trump told The New York Times in December. But Sessions really had no choice in the matter, because he had personally met, while an adviser to the Trump campaign, with the Russian ambassador, and had lied about it to the Senate Judiciary Committee considering his nomination to become attorney general. That recusal, however, led to the appointment as special counsel of Robert Mueller, whose investigation Trump has been obsessed with ever since.

The fact that this decision, which Sessions was ethically bound to make, so colors the president’s view of his attorney general is all the more remarkable because Sessions is almost certainly the single most effective implementer of Trump’s vision in the entire administration. No cabinet member has been more diligent and single-minded in pursuing Trump’s policies.

Sessions has dramatically transformed the Justice Department, effectively causing it to renege on its historic mission of defending civil rights. He has fiercely defended the administration’s most unconstitutional initiatives, including a blatantly anti-Muslim immigration ban and a policy of denying teenage immigrants in federal custody access to abortion. He has reversed his own long-standing support for state’s rights to attack cities and states that have chosen, as is their constitutional prerogative under the Tenth Amendment, to leave enforcement of federal immigration law to federal officials. He is poised to overrule an immigration court decision that victims of domestic abuse and gang violence may obtain asylum here, an action that could turn away thousands of abuse victims each year. And he has overseen the appointment of a large number of deeply conservative—and overwhelmingly white and male—federal judges.¹

Sessions has been most aggressive on criminal justice. He and Trump would both like to take us back to the heyday of “tough on crime” politics. Trump campaigned on a “law and order” promise to clean up the streets and as president has expressly encouraged police officers not to worry about injuring suspects during arrests. Sessions never tires of referring to violent crime, even though in most of the country it is at or near record lows. As a senator, Sessions successfully blocked a bill with broad bipartisan support that would have reduced reliance on mandatory sentencing minimums. As Trump’s attorney general, he has again opposed bipartisan reform of sentencing guidelines, creating a rift with the chair of the Senate Judiciary Committee, Charles Grassley, who is no liberal.

Sessions has also ordered all federal prosecutors across the nation to seek the most extreme charges possible against criminal defendants, regardless of extenuating circumstances, and without any consideration of whether the specific case justifies the penalty sought. Eric Holder, attorney general under President Barack Obama, issued a very different directive, urging his prosecutors to seek the most extreme penalties only in cases that actually warranted them. Holder specifically directed prosecutors to avoid filing charges that carry unnecessarily harsh mandatory minimum penalties if defendants had no significant criminal history, had engaged in no violence, had not been part of gang leadership, and had no substantial ties to drug-trafficking organizations. Sessions’s policy directs prosecutors to throw the book even at such low-level, nonviolent offenders.

This shift in charging policy is critical because, as Fordham law professor John Pfaff has shown in his excellent book Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform, prosecutorial charging decisions were the driving force behind the rise of America’s system of mass incarceration in the last quarter of the twentieth century, when incarceration rates quintupled.² Pfaff’s data demonstrate that the main cause of the unprecedented growth was not longer sentences authorized by legislatures or more arrests by police officers but harsher charging decisions made by prosecutors. Prosecutors generally have wide leeway in how they charge criminal conduct, precisely because “one size fits all” is not appropriate when taking a human being’s liberty. But Sessions has directed prosecutors to exercise that discretion in only one way—as harshly as possible.

Sessions has done his best to reverse nearly all of his predecessor’s much-needed criminal justice reforms. Vowing to relaunch the failed “war on drugs,” he revoked a Holder guidance memo that discouraged prosecution of marijuana offenses in states that have chosen to legalize that drug. He retracted another memo that sought to end the federal government’s reliance on private prisons, which are driven by the profit motive to favor more and longer incarceration. He signaled a major retreat on oversight of policing, ordering a review of existing consent decrees with cities that had demonstrated discriminatory policing practices, with an eye toward abandoning such decrees if necessary. In one of his first actions, he sought to back out of a consent decree imposed on the Baltimore police department, but the judge in the case refused his request. And he has opened no investigations of systemic policing abuse since taking office.

All of this is very much against the grain, but fully in keeping with Trump’s “law and order” platform. Over the last decade, a bipartisan consensus has emerged—uniting the Koch brothers and George Soros, the Tea Party and the Center for American Progress—that our criminal justice system is unfairly and needlessly harsh. The reflexive politics of “tough on crime,” so dominant in the 1980s and 1990s as incarceration rates rose, have been replaced by a desire to reserve our harshest measures for the worst offenses and to address other problems through more humane and cost-effective measures, including drug treatment, reintegration policies, and nonpenal responses to urban poverty.

Unnecessary incarceration comes at tremendous cost to the individuals locked up, their loved ones, their communities, and society as a whole. Increasing incarceration is certainly not needed to reduce crime. Europe, and indeed most of the developed world, have vastly lower crime rates than the United States, and vastly lower incarceration rates as well. In the last thirty-five years, New York City has dramatically reduced homicides and serious crimes, while simultaneously reducing incarceration.³ Yet Sessions and Trump have resurrected the “tough-on-crime” mantras of the past, ignoring the evidence that such policies are unjust, wasteful, and inhumane.

Sessions and Trump have also turned back the clock on protections for LGBT individuals. One of the administration’s first acts upon taking office was to rescind a guidance document that directed schools receiving federal funding not to discriminate against transgender students. More recently, the Justice Department reversed its position on Title VII of the Civil Rights Act of 1964, arguing to a federal court of appeals in New York that the law’s prohibition on sex discrimination in employment did not cover discrimination on the basis of sexual orientation. In so doing, Sessions parted company not only with his own department’s prior interpretation, but with the current position of the Equal Employment Opportunity Commission, the federal agency charged with enforcing Title VII. In February, the court of appeals sided with the EEOC over Sessions.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, pending in the Supreme Court, the Justice Department under Sessions supported a baker’s asserted right to refuse to sell a wedding cake to a gay couple—marking the first time in the department’s history that it supported a constitutional exemption from a nondiscrimination law.⁴ Because one of the department’s primary responsibilities is to enforce such laws, it is generally skeptical—and properly so—of arguments that businesses can avoid obligations to treat their customers equally by asserting a First Amendment objection.

The Justice Department has in the past successfully resisted such objections by restaurants, law firms, and religious schools. Yet under Sessions, the Justice Department supported the baker, arguing that because his product was “expressive” and being used for an “expressive event,” he could turn away a same-sex couple seeking to purchase a cake that he would willingly sell to an opposite-sex couple. As Justice Anthony Kennedy noted to the solicitor general during arguments in the case, that would mean bakeries across the land could put signs in their shop windows saying, “We do not bake cakes for gay weddings.”

Sessions has also loyally done Trump’s bidding on voting rights. Trump infamously blamed his losing the popular vote to Hillary Clinton by almost three million votes on the wholly unsubstantiated charge that millions of people voted fraudulently. The Justice Department, responsible since the enactment of the Voting Rights Act of 1965 for ensuring access to the franchise, has changed its course under Sessions. The department belatedly abandoned its long-standing contention that the Texas legislature had intentionally discriminated on the basis of race in adopting voter identification requirements, a tactic favored by Republicans to reduce voter turnout. The shift appeared to have more to do with Trump’s and Sessions’s preference for voter suppression than with the evidence in the case; a federal judge subsequently ruled that the legislature had indeed acted on the basis of race.

The Justice Department also reversed itself in a voting rights case argued in the Supreme Court in January. In Husted v. A. Philip Randolph Institute, the ACLU and Demos, a public policy organization, challenged Ohio’s practice of purging voters from the rolls if they failed to vote and failed to return a notice mailed to them. About half of Ohioans—like other Americans—don’t vote, and over 80 percent of the notices their state sent out were never returned. There was no evidence linking these inactions to voters’ moving out of the jurisdiction, Ohio’s purported reason for removing them from the rolls.

Before Sessions, the Justice Department supported the lawsuit against Ohio, arguing that the National Voter Registration Act prohibited the state from removing voters from the rolls for failing to vote. Once Sessions arrived, however, the department switched sides, abandoning a position it had maintained for twenty years, under Republican and Democratic administrations alike. The Republican strategy on voting has been to suppress votes in the name of a nonexistent threat of voter fraud, and Sessions is now using the Justice Department to pursue that end.

It is not surprising that a change in administration brings changes in policy. That’s what elections are for. But it is one thing to adjust enforcement priorities; it is another thing to say that a law that the Justice Department read as meaning one thing for twenty years now means exactly the opposite, to abandon successful claims in ongoing litigation because they are politically unwelcome, or to support a constitutional exemption from antidiscrimination law that the executive branch has uniformly opposed since the 1960s. Yet Sessions has done all that, adhering to Trump’s agenda even when it is directly at odds with decades of department precedent.

So Jeff Sessions has gone out of his way to carry out Donald Trump’s radical policies—even if it means reversing course in multiple areas and abandoning the Justice Department’s historic responsibility to defend and enforce civil rights, access to the ballot, and equal treatment. The department has become an obstacle to criminal justice reform, an opponent of equal rights for LGBT individuals, and a champion of voter suppression, religious discrimination, and interference with reproductive choice. What more could Trump want?

Yet no cabinet member has come under more vocal and public criticism from President Trump than Sessions—all of it related to what Trump sees as Sessions’s original sin of recusing himself from the Russia investigation. Given how much Sessions has accomplished in advancing Trump’s platform, the fact that the president nonetheless publicly denigrates him as “DISGRACEFUL” makes clear what Trump cares about most—not his policies, his campaign promises, or his constituents’ desires, but his own skin.

—March 22, 2018