The Signal Sent by Picking Jeff Sessions for Attorney General

The United States’s top law-enforcement official possesses sweeping discretionary power—and the Alabama senator’s record suggests how he’ll use it.

Marvin Gentry / Reuters

How far back does Donald Trump have to take the nation before it recovers its lost greatness?

The Reagan era—conservatism’s heyday—is apparently not far back enough. That is the sign given this week by Trump’s designation of Senator Jefferson Beauregard Sessions III of Alabama as his pick for attorney general of the United States. Three decades ago, Sessions was deemed too racist for the Senate to approve as a federal judge. A man judged unfit to wear a black robe back then will now command the fearful apparatus of the federal government.

The attorney general wields such enormous power that I once, watching the Justice Department’s antics during the administration of George W. Bush, suggested that the attorney general should be elected separately, to end the presidential habit of slipping complaisant cronies into the office.

The attorney general is the head of the U.S. Department of Justice—one of the most powerful law factories in the history of the world. This is not simply a law-enforcement job; it entails responsibility for every aspect of the U.S. government’s legal affairs. The DOJ has more than 110,000 employees and a budget of $27 billion. The attorney general sets legal policy in the areas of environmental enforcement, anti-trust enforcement, and civil rights. He or she advises the president about whom to nominate to federal judgeships and the Supreme Court. The Justice Department’s Office of Legal Counsel determines which powers presidents may assert even without congressional approval. The Office of the Solicitor General determines which cases the government will appeal to the Supreme Court and how the cases will be argued. The attorney general is head of the Bureau of Prisons, whose 40,000 employees hold nearly 200,000 inmates.

When police officers kill unarmed civilians, the Justice Department will often investigate to determine whether federal law was violated.  When communities come into conflict with their police departments, Justice Department will often intervene to produce agreement on how to improve relations. When states and counties cut back on voting rights, the Justice Department’s Voting Section will determine whether to bring suit under the Voting Rights Act. When Presidents ask whether they can invade foreign countries without congressional approval, or torture terrorism suspects, or hold American citizens incommunicado without counsel, or use drones to assassinate them abroad, the answer will flow across the attorney general’s desk.

In law enforcement alone, the attorney general is the head of three separate agencies, each of them with sweeping powers—the Federal Bureau of Investigation, the Drug Enforcement Administration, and the Bureau of Alcohol, Tobacco and Firearms Enforcement. As leader of the Department’s civil division, the attorney general calls the shots on lawsuits against the government, and on suits brought by the government to recover funds or enforce federal laws. As head of the criminal division, the attorney general supervises the 93 U.S. attorneys around the country, and has sweeping discretion to decide which crimes are investigated and which are prosecuted. One of the most feared tools an attorney general wields is the H-bomb of criminal law, the federal grand jury, which a century ago the Supreme Court described as “a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety.” These grand juries may call any citizen before them, requiring each to appear alone, without counsel and, sometimes, without even the protection of the Fifth Amendment.

Who is the man Trump has chosen to wield this authority? Well, as noted, Jeff Sessions’s chief distinction to date is his rejection by the Senate Judiciary Committee—run at the time by the Republican majority—as a nominee for the federal district bench. At his confirmation hearing, former subordinates testified that, while he was a U.S. attorney, he called a black lawyer “boy” and warned him “be careful how you talk to white folks.” That he called the NAACP and the American Civil Liberties Union “un-American.” That he joked that he’d thought the Ku Klux Klan was “OK until I found out they smoked pot.”

Sessions never quite denied most of these charges, but insisted he was not a racist. Other witnesses testified that they had never seen a racist side of him. But what no one denied was his use of the power of the U.S. attorney’s office in Alabama to humiliate and intimidate African American voters. As Ari Berman chronicles the episode:

In the Democratic primary of September 1984, FBI agents hid behind the bushes of the Perry County post office, waiting for [famed Alabama Civil Rights advocate Albert] Turner and fellow activist Spencer Hogue to mail 500 absentee ballots on behalf of elderly black voters. When Turner and Hogue left, the feds seized the envelopes from the mail slots. Twenty elderly black voters from Perry County were bused three hours to Mobile, where they were interrogated by law-enforcement officials and forced to testify before a grand jury. Ninety-two-year-old Willie Bright was so frightened of “the law” that he wouldn’t even admit he’d voted.

In January 1985, Jefferson Beauregard Sessions III, the 39-year-old US Attorney for the Southern District of Alabama, charged Turner, his wife Evelyn, and Hogue with 29 counts of mail fraud, altering absentee ballots, and conspiracy to vote more than once. They faced over 100 years in jail on criminal charges and felony statutes under the [Voting Rights Act]—provisions of the law that had scarcely been used to prosecute the white officials who had disenfranchised blacks for so many years.  ... The trial was held in Selma, of all places. The jury of seven blacks and five whites deliberated for less than three hours before returning a not-guilty verdict on all counts.

Though rejected by the Judiciary Committee, Sessions went on to become attorney general of Alabama and then U.S. senator. And in those roles, he has fought tooth and nail against advances for racial equality, women’s rights, due process for immigrants, or voting rights.

Going over the record of this intransigence is, in fact, almost worse than a waste of time. I suspect that Sessions has been picked to wield the sword of justice not in spite of these blotches but because of them—because, that is, they both fit in with Donald Trump’s own views and also send a careful message to the groups Trump has threatened in his campaign for office—women’s rights advocates, immigrants, Muslims, Latinos, and African Americans. We won, the message runs, You lost. The doors of justice are closed against you.

Is that really the new message of the former party of Lincoln? Or does today’s GOP have a shred of the honor of its 1980s forebear? If it does, there will be dissenting voices in committee and on the Senate floor about this wretched appointment.

But I am not hopeful. After a brief election-night promise to “bind the wounds of division,” Trump has spent his time rubbing salt in them instead. His appointments show not even a hint of inclusion. Instead, he has chosen advisers who have given vent to hate as his top White House counselor and his national security adviser, and now this remnant of the old South to guide the department in charge of citizens’ rights.

There is no inclusion; there is no reconciliation; there is no compromise. Americans ignore this message at their peril.