To: Interested Parties
From: Elliot Mincberg, Senior Fellow, People For the American Way
Date: June 29, 2017
Re: The Dangers of the Trump-Sessions Justice Department
Although most people’s direct interactions with our nation’s justice system are through local police or state courts or prosecutors, our federal Department of Justice (DOJ) and the Attorney General play a critical role in ensuring fair legal treatment for all. As President Obama explained:
[T]he Attorney General oversees the vast portfolio of cases, including counterterrorism and voting rights; public corruption and white-collar crime; judicial recommendations and policy reviews — all of which impact on the lives of every American, and shape the life of our nation.
Even before former Senator Jeff Sessions became Attorney General under Donald Trump, however, The New York Times concluded that Sessions as Attorney General would be “an insult to justice.” After less than five months of the Trump-Sessions DOJ, this conclusion has already proven true. Media attention has focused on Sessions’ involvement in various scandals related to the Trump campaign and administration ties to Russia. At the same time, however, Sessions has been working to remake the DOJ, including in six areas where the Department’s influence is enormous and consequential: (1) voting rights; (2) hate crimes; (3) federal criminal law and “mass incarceration”; (4) police reform; (5) immigration; and (6) civil rights enforcement.
The Attorney General and DOJ have crucial responsibility for enforcing federal laws like the Voting Rights Act that ban discrimination in voting and registration based on race, language, minority status, age, and disability and that promote more accessible voter registration and voting for all, as well as monitoring the conduct of elections. For example, Alabama and Connecticut, in order to resolve complaints received by DOJ, agreed last year to improve registration opportunities for all citizens. And DOJ played a critical role several years ago in bringing about a lower court ruling that a Texas voter ID law had an illegal discriminatory purpose and in fact discriminated against minority voters.
Even before he became Attorney General, however, serious concerns were raised about Jeff Sessions’ extremely troubling history on voting rights, including an unsuccessful voter fraud prosecution aimed at three African-American civil rights activists and vote suppression tactics when he was a prosecutor in Alabama, and opposition to voting rights protections as a Senator. In fact, the Trump-Sessions DOJ has already taken action contrary to voting rights. Less than a month after Sessions started as Attorney General, the DOJ switched sides in the ongoing Texas voter ID case and abandoned its claim that the law was intended to discriminate. Although the lower court in that case again struck down the law anyway, Texas will undoubtedly appeal, and DOJ’s role in the appeal and in other voting cases are cause for deep concern.
Chillingly, the Trump-Sessions DOJ budget proposal conspicuously omits a promise made by President Obama in his final budget request to “focus on detecting and challenging practices that violate Section 2 of the Voting Rights Act.”, which bans practices that have a discriminatory effect on voters. There is significant concern that instead, the Trump-Sessions DOJ will “shift its resources towards scaremongering” over the nonexistent problem of widespread voter fraud, and “do more to suppress the right to vote than protect it.”
Congress has given DOJ specific responsibility for prosecuting hate crimes, which include violence and threats based on a person’s race, color, national origin, disability, gender, gender identity, or sexual orientation. For example, when hate crimes surged after last November’s elections, then-Attorney General Loretta Lynch personally and immediately announced DOJ investigations and urged continued reporting of incidents.
In fact, hate crimes against Muslims, immigrants, Jews, and people of color clearly spiked after last November’s election and continue to be a deeply disturbing problem. After 13 Senators called on the Trump Administration to establish a task force to address the hate crimes situation, DOJ did announce that a subcommittee of a broader task force on crime prevention would seek to address the issue, which, it was belatedly announced Sessions would attend. Senators and advocates are skeptical, noting that it “remains to be seen” whether the action will be fully resourced and effective or will be mere “tokenism” with some pointing out the irony of the summit being convened by the entity at DOJ “which has as a top priority, draconian enforcement against immigrant communities … [raising] serious concerns about this administration’s commitment to ensuring that every individual in the United States …. feels safe, welcome and protected by the federal government.” Other than the new subcommittee, the Lawyers’ Committee for Civil Rights Under Law has pointed out that there has been a “deafening silence” from Mr. Sessions on the surge of hate crimes. In fact, Sessions fought against hate crime protection for LGBT persons when he was in the Senate. With Senators and experts suggesting that Trump himself has stimulated the rise of hate crimes with his hurtful and divisive rhetoric, the willingness and ability of a Trump-Sessions DOJ to act effectively in this area is questionable at best.
Federal criminal law and mass incarceration
By one estimate, there are well over 5,000 federal criminal laws that DOJ is charged with enforcing, including laws directed at violent crime, organized crime, white-collar crime, and more. Since there are insufficient resources to prosecute all possible criminal violations, a key question for any Attorney General is how to prioritize which laws to enforce and against whom. Unfortunately, the evidence is clear that the Trump-Sessions DOJ is seeking to return to the discredited approach of mass prosecution and mass incarceration, with particularly devastating consequences to minority communities.
Over the last several years, there has been growing bipartisan recognition of the need for reform in our federal criminal justice system. As the general counsel of conservative Koch Industries has explained, almost half of our large and growing federal prison population consists of “non-violent drug offenders for whom prison may not be the most effective solution,” preventing people “from leading productive lives” and making “communities less safe in the process.” These problems particularly harm communities of color. Conservative and liberal legislators and interest groups, ranging from Sen. Mike Lee and Freedom Works to Sen. Richard Durbin and the NAACP, have joined to support measures to end mandatory minimum sentences and seek alternatives to imprisonment.
Although Senator Jeff Sessions was able to stall such sentencing and criminal justice reform while in Congress, The New York Times has explained that as Attorney General, “he has sent it reeling.” In May, he sent a memo instructing all federal prosecutors to pursue the harshest possible charges and sentences against all crime suspects, including non-violent drug offenders, drawing criticism from even conservative reform advocates like Sen. Mike Lee. DOJ’s proposed budget would add 300 more federal prosecutors to work on immigration and criminal enforcement matters, who would all be subject to the directive to pursue harsh charges and sentences.
Sessions has gone even further, personally writing to Congress and seeking an end to a bipartisan appropriations rider that, since 2014, has prevented DOJ from prosecuting people for using medical marijuana that is legal under state law. This produced severe criticism from conservatives as well as progressives, with one Republican congressman noting that Sessions’ view was contradicting the “overwhelming majority of Americans” on the issue. Around the same time, Trump issued a signing statement on an appropriations bill containing that provision, suggesting that DOJ could very well ignore it, even without a change by Congress. In April, Sessions also announced the disbanding of a commission of independent experts on the use of forensic science in criminal cases, raising concerns that “bad science will continue to find its way into courtrooms and innocent people will continue to go to jail” as a result.
In addition, after less than a month on the job, Sessions reversed a prior DOJ policy and proclaimed that DOJ will use privately run prisons, despite clear evidence of serious safety and related problems for both prison officials and prisoners. This will not only facilitate the return of the mass incarceration policy, but will also benefit private prison companies that donated heavily to Trump’s campaign. Overall, as one analyst has explained, the Trump-Sessions DOJ’s mass incarceration policies will “increase the prison population, exacerbate racial disparities in the criminal justice system, and do nothing to reduce drug use or increase public safety.”
All of us are affected by policing in our communities, and there have been problems for years around the country concerning improper and abusive police practices, particularly with respect to minority communities. The Attorney General and DOJ have previously played a critical, two-part role in this area. They investigate and take action with respect to abusive police practices; for example, DOJ reached a court-enforceable agreement, or consent decree, with Cleveland in 2015 to reform police practices after DOJ found a pattern or practice in the city of use of excessive force. Fourteen consent decrees with police departments are currently in place, with two dozen investigations started under President Obama. Historically, such decrees have been very beneficial; as one expert pointed out about a consent decree in Los Angeles in the 1990s, “Los Angeles is safer and the police practices are better, as result of the decree.” In addition, DOJ operates programs that have encouraged more effective community-oriented policing and has sent in teams from its Community Relations Service to help calm and mediate problems, whether in urban areas or in rural locales, as occurred in 2016 when protesters and police stood off over the construction of the Dakota Access Pipeline.
Even before becoming Attorney General, however, Sessions specifically criticized DOJ investigations and action concerning police reform as an abuse of federal authority and was considered likely to curtail such activity if he were to be confirmed. And in only a few months, that is precisely what has occurred under the Trump-Sessions DOJ.
Specifically, Sessions announced a drastic policy shift in March that could “roll back decades of police reform,” sending a memo directing a “review” of all DOJ activities in this area, including plans to investigate existing consent decrees with local police that mandate an end to abusive practices. Shortly after sending the memo, Sessions tried to delay the signing of a comprehensive plan to reform police practices in Baltimore, despite the city’s own objections to the delay and support for the decree, and a federal judge rejected the delay and signed the decree. Sessions promptly criticized the decree, claiming it would “reduce the lawful powers” of the police. A month earlier, he announced that he was still considering whether to implement important recommendations concerning police reform in Chicago that were contained in DOJ reports, admitting that he had not even read the reports. As Kristen Clarke of the Lawyers’ Committee for Civil Rights Under Law concluded, Sessions “sees little to no role for the federal government to play in promoting policing reform, even in those communities where the problems are greatest.”
In addition, earlier in 2017, there were rumors that the Trump budget would cut back or eliminate DOJ community-oriented policing programs and grants. After pushback by law enforcement, these programs were mostly spared from the chopping block, but the budget does propose a 22 percent cut of some $75 million to DOJ’s largest grant program to help effective state and local law enforcement.
In our country, it is the federal government rather than states and localities that plays the primary role concerning immigration. This affects millions of immigrants, as well as their families and communities. Although the Department of Homeland Security (DHS) plays a primary role in this area, the Attorney General and DOJ have important responsibilities concerning our nation’s immigration laws as well. These include appointing administrative immigration judges and appeals board members who decide most deportation and related cases, setting criteria for asylum, determining enforcement priorities, and administering grant and other programs. Prior to the Trump Administration, DOJ focused in large measure on taking action against undocumented immigrants who committed serious crimes and on securing voluntary local cooperation from state and local authorities.
Sessions’ extreme record on immigration, however, has been well documented. He has supported Trump’s campaign immigration promises, including stepped up deportation, limiting or banning immigration by Muslims, and building a wall between the U.S. and Mexico, and has voted against bipartisan comprehensive immigration reform. There was concern that as Attorney General he could attempt to execute many of Trump’s extreme promises, including taking action against sanctuary cities that do not cooperate with federal authorities in harsh actions against immigrants.
In less than six months, these concerns about the Trump-Sessions DOJ have proven all too true. In April, Sessions directed that all federal prosecutors’ offices, even those far from any border, devote significant new effort to prosecuting any and all immigration-related offenses, particularly non-violent offenses. This not only reverses prior DOJ policies but also makes it more likely that private prisons will need to be used to detain immigrants accused of crimes. Sessions proudly proclaimed that it is now the “Trump era” of immigration enforcement. Sessions dispatched 25 immigration judges to California and other locations, requiring that they work 12-hour days from 6 a.m. to 6 p.m. to reduce the backlog of deportation cases. He joined with DHS in backing plans to arrest undocumented immigrants at courthouses when they appear for proceedings not related to their immigration status. Despite cuts elsewhere, the DOJ budget would spend $80 million, an increase of 19 percent, to hire 75 more immigration judges, and would add 120 border prosecutors and other legal officials to focus even more on immigration enforcement.
The Trump-Sessions DOJ has also taken aggressive action against sanctuary cities. An initial effort by Trump to use an executive order to take away federal funding from sanctuary cities, defended by DOJ, was blocked by a federal court ruling in April. But in that same month, Sessions demanded that nine cities, such as New York, Chicago, and Miami, and the entire state of California, all of which have taken steps to protect immigrant families and communities, agree to cooperate fully with aggressive federal immigration actions by June 30 or face the loss of federal funding. In fact, the DOJ budget proposes changes to substantive federal law that would (1) require all local police to agree to detain immigrants in jail for longer than their scheduled release date in order to be picked up by federal authorities, (2) prohibit cities and states from enacting any policy that would bar their officials from asking people about their immigration status, and (3) allow suspension or “claw back” of grants from those that do not comply. As one immigration expert has commented, requiring that states and cities enforce federal immigration laws “terrorizes immigrant communities and makes the whole community less, not more, safe, as police chiefs around the country recognize.”
Sessions’ rhetoric has also been deeply troubling. He has done even more than support Trump’s immigrant travel bans, which have so far been struck down by the courts despite DOJ’s efforts. In the same speech on the U.S.-Mexico border in which he proclaimed the “Trump era” of immigration enforcement, he went even further in the written version of his remarks. “It is here, on this sliver of land,” Sessions declared, ‘where we first take our stand against this filth.” Although directed at criminal drug cartels, this line drew criticism as representing Sessions’ general views and was in fact omitted from the oral version of the speech, even while it remains on the DOJ website.
Civil rights enforcement
Although government at all levels is responsible for helping protect civil rights, laws passed by Congress give DOJ special civil rights responsibilities. In addition to the specific areas described above, the Attorney General and DOJ have important roles in enforcing Congressional laws and preventing and combating discrimination in housing, employment, education, and other areas based on race, gender, religion, and national origin. DOJ also administers important grant programs to help protect civil rights, such as under the Violence Against Women Act. Under both Republican and Democratic Administrations, DOJ and its Civil Rights Division have had a proud history of civil rights enforcement.
Even before he became Attorney General, however, Sessions’ record was cause for deep concern. Sessions was one of only 22 Senators who opposed the reauthorization of the Violence Against Women Act in 2013, and during the 2016 presidential campaign tried to defend Trump’s own reported assaults on women, leading to serious concerns about Sessions’ willingness to perform DOJ’s role in that area. And his “30-year record of racial insensitivity” and “hostility to the protection of civil rights,” including racist statements when he was an Alabama prosecutor, led more than 150 civil rights and related groups to oppose his nomination. As one former DOJ official concluded, “I don’t think Americans can have confidence that civil rights will be safe in the hands of a Sessions Department of Justice.”
In fact, we have already seen actions by the Trump-Sessions DOJ that threaten civil rights enforcement, in addition to those discussed above. One of Sessions’ first actions as Attorney General was to revoke guidance providing protection for transgender students in schools. DOJ under Sessions also dropped a lawsuit against the infamous North Carolina “bathroom bill” that harmed transgender students. Sessions has made clear his opposition to the use of consent decrees in police reform cases, as discussed above, and he is also causing DOJ to turn away from this effective enforcement tool in other areas, such as in a recent DOJ case involving religious discrimination against Muslims by a town that refused to allow the building of a mosque. In that case, the town agreed to settle and DOJ lawyers wanted to make the settlement an enforceable consent decree, but that was vetoed as a result of the new DOJ policy. And in June, DOJ switched sides in an important Supreme Court case, abandoning its position that a contract that forces workers to give up their right to bring a class action lawsuit against their employer violates the National Labor Relations Act, and instead supporting big business claims that such contracts are perfectly legal.
The 2018 Trump budget, moreover, clearly lays out a blueprint for severely cutting back on civil rights enforcement. Specifically, despite increases in funding in other areas, the budget calls for eliminating at least 121 positions in the Civil Rights Division. Government-wide, the budget would cut 460 federal positions devoted to civil rights, projected to result in more than 3,200 cases of uninvestigated civil rights complaints. DOJ funds to help implement the Violence Against Women Act would be cut by some $2 million. And the DOJ budget conspicuously omits any mention of disability rights enforcement, while including language suggesting that DOJ will “prioritize the review” of consent decrees on school desegregation. The latter has been translated by one DOJ veteran as meaning that DOJ will “look through consent decrees and find which ones they can get rid of.” Overall, as one experienced civil rights lawyer has concluded, “what this is about” is “turning the clock back” on civil rights.
These cuts and other civil rights enforcement issues under the Trump Administration have drawn the attention of the bipartisan U.S. Civil Rights Commission. The Commission decided unanimously in June to launch a two-year probe on the “degree to which current budgets and staffing levels allow civil rights offices to perform” their functions. A Commission statement expressed concern that proposed cuts would result in a “dangerous reduction of civil rights enforcement across the country, leaving communities of color, LGBT people, older people, people with disabilities, and other marginalized groups exposed to greater risk of discrimination,” including concern that DOJ is “minimizing its civil rights efforts.” While the Commission has no enforcement power, it is clear that Congress and the American people must take action on the dangerous Trump-Sessions DOJ.