Magazine | December 19, 2016, Issue

Attorney General Sessions

Roman Genn
He will have the task of depoliticizing the Justice Department

Of Washington’s many swamps, none is more in need of draining than the Department of Justice. In choosing to nominate Senator Jeff Sessions (R., Ala.) as the next attorney general, President-elect Trump is off to a promising start.

The institution in which I proudly spent nearly 20 years as a prosecutor is in crisis, no small thanks to the mockery made of the Justice Department by its last two leaders: Eric Holder, the first attorney general in American history to be held in contempt of Congress (for obstructing the oversight investigation of the “Fast and Furious” fiasco), and his successor, Loretta Lynch, who began her term as the nation’s chief law-enforcement officer by endorsing President Obama’s aversion to enforcing the immigration laws and is ending it with the farce of her shameful tête-à-tête with Bill Clinton on an Arizona tarmac, necessitating her all-but-formal recusal from the investigation of Hillary Clinton’s e-mail scandal—which Lynch’s subordinates managed nonetheless to whitewash.

Of course, attorneys general take their cues from the president. Rarely in history has there been one as deeply involved in the Justice Department’s work as Barack Obama. Our Harvard Law School–educated president fancies himself an expert in constitutional law, and if undermining is a form of expertise, I suppose he fits the bill. Obama’s real expertise, however, is in Saul Alinsky–style community organizing, in which the law—or, rather, the vexatious potential of the legal process—is weaponized in the service of “social justice.”

In his administration, the Justice Department was politicized to a degree that would have made Richard Nixon and John Mitchell blush. The government’s awesome powers of investigation, and occasionally prosecution, have been wielded against political critics such as conservative nonprofits and anti-Obama filmmaker Dinesh D’Souza, as well as scapegoats such as Nakoula Basseley Nakoula (who produced the anti-Muslim video fraudulently blamed by the administration for the Benghazi massacre, in which four Americans, including U.S. ambassador J. Christopher Stevens, were murdered). The Justice Department not only trumped up a supervised-release infraction (akin to a parole violation) to imprison Nakoula; it carefully drafted the indictment of Ahmed Abu Khatallah, the only terrorist charged in the attack, to track the fictional Obama narrative of an essentially unplanned, spontaneous attack.

The department was similarly accommodating of other administration storylines. The aforementioned Fast and Furious investigation revealed a harebrained scheme to allow the transfer of illegally purchased firearms to criminal gangs, some of them in Mexico, the better to sow a claim that Second Amendment gun rights were to blame for international violence. Despite the lack of evidence of criminal wrongdoing, financial institutions were pursued civilly by Justice Department lawyers to cement the narrative that predatory lending, not reckless government housing policies, was the culprit in the mortgage meltdown. Such a dedication of law-enforcement power to political ends was natural for a department that made progressive activism the touchstone of its hiring—stacking various units, particularly in the Civil Rights Division, with social-justice warriors who view the U.S. Code as an arsenal for achieving societal transformation.

Towns, cities, and even most states do not have the resources to go toe-to-toe against the Justice Department, with its legions of lawyers and $28 billion annual budget. The Civil Rights Division’s infamous “Dear Colleague” letters, providing legal “guidance” with the implicit threat of ruinous litigation costs for noncompliance, have squeezed schools across the country to accommodate the lavatory preferences and other demands of “transgender” students. City and municipal police departments have been pressured to submit to Justice Department monitoring and to adopt Obama-approved policing practices in order to settle Justice Department lawsuits dubiously alleging discriminatory practices. States that attempted to enforce immigration or voter-identification laws could bank on similarly being sued. Meanwhile, after an in-depth study, the Government Accountability Institute found that the Justice Department diverts millions of settlement dollars from its “pattern of extortive lawsuits” to fund left-wing “nonprofit ‘community organizers’” without any appropriations from Congress.

Perhaps the most outrageous of the Obama DOJ’s outrages has been its injection of racial discrimination into the enforcement of civil-rights laws, in blatant violation of the equal-protection principles those laws are supposed to ensure. As department whistleblowers such as J. Christian Adams attest, the civil-rights section frowns on enforcement in cases that feature white victims and black perpetrators—such as the notorious New Black Panther Party case, which Justice dismissed even though it had already prevailed when the Panther defendants lost by default when they failed to appear in court.

Senator Sessions will have his hands full. His background suggests that he is up to the task. Thirty years ago, his nomination by President Reagan to the federal bench was blocked by Senate Democrats—with the help of Pennsylvania’s then-Republican senator Arlen Specter, who later expressed regret over the demagogic effort to smear Sessions as a racist. But before he won election to the Senate that had spurned him, Sessions was a highly accomplished United States attorney and state attorney general in Alabama—prosecuting cases that helped desegregate the public schools and convict the head of the Ku Klux Klan of capital murder.

The matter most urgently in need of his attention is the restoration of the Justice Department’s core mission: enforcing American law irrespective of politics, rather than using the law to bludgeon Americans into compliance with a political agenda.

For Sessions, that will doubtless begin with enforcement of the immigration laws, a clarion call of the Trump presidential campaign and a matter on which he has been the Senate’s stalwart. “Our immigration system is broken” is the tired treacle of apologists for illegal aliens. But what has broken the system is failure to enforce the laws. Expect Sessions to end that dereliction. This will not involve anything as draconian as mass deportations. Sensible enforcement means targeting both the worst offenders—aliens who commit state and federal crimes—and the magnets of illegal immigration: employers that hire aliens unauthorized to work.

Relatedly, a Trump/Sessions Justice Department should restore prosecutorial discretion to what it was in the pre-Obama era: a necessary, non-controversial resource-allocation doctrine to shift finite law-enforcement assets to the most pressing crime problems. Obama contorted it into a license to refrain from his constitutional duty to execute the laws faithfully and an artifice for nullifying laws he did not like—to the point where he not only refused to enforce immigration law but granted de facto amnesty and work permits to classes of illegal aliens.

It will be difficult to weed the radical activists out of the department. Obama has deeply entrenched the lawyer Left throughout the civil-service ranks, not just in the relative handful of presidential appointments. Sessions will need strong subordinates to marginalize the activists—his appointments of the deputy attorney general (who runs the department’s day-to-day operations) and the chiefs of the criminal and civil-rights divisions will be particularly critical. But there is no reason the Justice Department needs a bursting affirmative-litigation budget with which to wage war against states and police departments. Furthermore, Sessions should immediately order a review of the department’s guidance letters, consent decrees, and civil complaints—the vehicles by which Obama’s Justice Department has squeezed states, municipalities, police departments, schools, and other public entities to hew to progressive policy preferences that are not mandated by federal law. Many of these should be eased, narrowed, or withdrawn.

In Jeff Sessions, Trump has chosen an experienced prosecutor and lawmaker who firmly grasps the Justice Department’s place in our federal system. His Alabama experience will reinforce Sessions’s respect for state sovereignty; the Justice Department will finally work to support state and local police, not federalize them. Having been a United States senator for 20 years, Sessions will appreciate the necessity of oversight by the people’s representatives to keep the Justice Department attuned and responsive to the concerns of Americans—crime, terrorism, border security, and threats to our liberties.

He is an excellent choice.

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