It sounds so good that Jeff Sessions said it over and over again when Democratic senators pressed him on how he would approach the job of attorney general: I will follow the law.
It’s what he said when Illinois Democratic Sen. Dick Durbin asked what he would do with “Dreamers,” undocumented immigrants who came to the U.S. as children. Ditto when Sen. Dianne Feinstein asked him about gay rights and abortion rights.
The answer sounds good because, of course, the attorney general should follow the law. But it is deeply unsatisfying and basically meaningless. Every president’s Justice Department exercises discretion in its interpretation and application of laws.
In other words, there’s a lot of latitude in exercising the awesome power of the nation’s top law enforcement agency. Who gets prosecuted? When does the federal government intervene to protect American citizens against their state governments? What’s the standard for letting bankers settle rather than go to trial? How are Justice Department grants apportioned among eligible entities? When do Justice Department officials recuse themselves? And, how should the department advise the president on whether and when it’s legal to torture prisoners?
For example, as a member of the Judiciary Committee during Alberto Gonzales’ attorney general confirmation hearings in January 2005, Sessions argued that the Bush administration overreached in applying the Geneva Convention to certain combatants in Iraq.
“A number of those people involved in Iraq really should not qualify, but the president has really gone further than the law requires, it seems to me, in granting them privileges that he did not necessarily have to do as a matter of effecting his policy of humane treatment,” Sessions said.
Gonzales jumped in to correct him.
“It is more accurate to say that the administration policy is and always has been that in our conflict with Iraq, Geneva does apply,” Gonzales said. “We are bound by the requirements of the Geneva Convention. Iraq is a signatory to the Geneva Conventions, and there were never any questions, any debate that I’m aware of, as to whether or not Geneva would apply with respect to our conflict in Iraq.”
Sessions, with the red light on, indicating his time had expired, popped back in to make clear he thought the White House, and the advice it got from the Justice Department, went too far in protecting enemies of the United States.
“But the Zarqawi people do not strictly qualify, in my opinion, as a lawful combatant,” he asserted.
Likewise, the attorney general has tremendous discretion on whether and when to use his or her authority to protect American citizens. For decades, state laws discriminated against people of color and state authorities stood by and, in some cases, encouraged mob violence against them. These laws and practices, many of them observed in Sessions’ home state of Alabama, were clearly at odds with American principles of equality and the 14th Amendment’s promise of equal protection under the law.
Sessions and his defenders point to a handful of civil rights cases he pursued as a federal prosecutor and as Alabama’s attorney general, but his was simply the name under which Justice Department desegregation suits were filed. He also brags about going after someone who killed a black teenager, as though doing his job was some heroic act of racial sensitivity.
What Sessions did not produce during the first day of his confirmation hearing is evidence that he pursued any campaign to curb discrimination in Alabama, where it surely existed during his tenure in office there. This is why I have always thought he is not fit for the post of attorney general. That job requires someone who is aware of oppression and discrimination and employs the power of the federal government to stop it. This is no matter of the past. With states moving swiftly to pass laws discriminating against LGBT Americans and crushing protections for voting rights, the principle of equal rights is under attack across the country.
During his hearing, Sessions indicated that he couldn’t quite understand the difference between complying with the law and seeking to protect, preserve and promote justice. Delaware Democratic Sen. Chris Coons asked him what he would have done had he been attorney general when Alabama hitched prisoners to posts as punishment — a sanction described as the most painful, short of electrocution.
“What action would you take if these practices were restored?” Coons asked.
The governor at the time had campaigned on making prisoners work, Sessions hemmed. The litigation came after his time, he hawed.
But should it have taken a ruling by the Supreme Court to stop the practice? Coons pressed.
“I do not have a legal opinion” on it, Sessions said, falling back on another of his mantras when asked about specific areas of the law. By his own admission, he hasn’t really studied key areas of federal law — despite his longtime membership on the Senate Judiciary Committee, work as Alabama’s attorney general and time as a U.S. attorney. Maybe he’ll follow the law, as he promised, but he’s certainly given no indication that he intends to lead on it.