Both before and after Jeff Sessions became Attorney General a year ago on February 9, 2017, we and others raised serious concerns about whether he could and would fulfill his responsibility to be not the President’ s lawyer, but the “people’s lawyer,” who would fairly and effectively enforce our laws and have enormous “impact on the lives of every American.” Prior to his confirmation, the New York Times concluded that making Sessions Attorney General would be “an insult to justice.”
Unfortunately, that prediction has proven true over the last year. Putting aside the very different and important issues concerning the Russia investigation, the record makes clear that in the same six key areas we have previously focused on – voting rights, hate crimes and LGBTQ issues, federal criminal law and mass incarceration, police reform, immigration, and civil rights enforcement – Sessions has undermined the Justice Department and harmed the American people. In at least ten notable cases on civil rights and other issues, the Trump-Sessions Justice Department has switched sides and argued against, rather than in favor of, the rights of workers, voters, and others. Congress and the American people must carefully oversee Sessions’ continued conduct as Attorney General, expose the failings of DOJ under his watch, and demand that he do his job properly.
Contradicting previous Attorneys General of both parties, Sessions has conducted a wholesale assault on voting rights. Less than a month after Sessions began as Attorney General, the DOJ switched sides in a case challenging a Texas voter ID law and abandoned its claim that the law was intended to discriminate. The district court in that case struck down the law anyway, and then ruled that a new Texas law perpetuates discrimination against voters. Texas appealed and DOJ again opposed voters and supported the state in the Fifth Circuit, which is considering the case. Towards the end of June, the Trump-Sessions DOJ switched sides again in a voting rights case now before the Supreme Court, which concerns whether states can legally throw voters off the voting rolls based on voters’ decisions not to vote in an election, as Ohio tried to do to thousands of voters. DOJ had earlier argued that such voter purges were illegal, but switched sides after Ohio pushed DOJ to change its position. DOJ did so in a brief that was not signed by a single career DOJ voting rights attorney.
Other DOJ actions under Sessions also threaten voting rights. The Trump-Sessions 2018 DOJ budget proposal conspicuously omits a promise made by President Obama 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. Instead, the Trump-Sessions DOJ wrote to 44 states in late June demanding information on what they have done to clean up or remove people from their voting lists, suggesting that DOJ will “shift its resources towards scaremongering” over the nonexistent problem of voter fraud, as the Trump “Election Integrity” Commission tried to do before its demise. Instead of an Attorney General who has sought to protect the right to vote for all, we have one now who has continued to try to take it away from some voters.
Hate Crimes and LGBTQ Issues
Congress has given DOJ specific responsibility for prosecuting hate crimes. After 13 Senators called on the Trump Administration to establish a task force to address the disturbing rise in hate crimes after the November election, DOJ did announce in April that a subcommittee of a broader task force on crime prevention would seek to address the issue. Senators and advocates remained skeptical, noting that it “remains to be seen” whether the action will be fully resourced and effective or will be mere “tokenism”. Other than the new subcommittee, the Lawyers’ Committee for Civil Rights Under Law pointed out after three months that there has been a “deafening silence” from Sessions on the surge of hate crimes. In fact, reports in June showed that hundreds of federal agencies have long been failing to report hate crimes to the FBI as they are required to do, yet Sessions did not even mention the issue at a subsequent hate crimes summit.
Particular concern has been raised about Sessions’ actions in connection with hate crimes against LGBTQ persons, especially since he fought against hate crime protection for them when he was in the Senate. Although the Trump-Sessions DOJ has acted to help prosecute a few highly-publicized crimes against LGBTQ persons, LGBTQ advocates have suggested that this is a “cynical ploy to deflect attention” from the tidal wave of other actions that harm LGBTQ people and encourage intolerance towards them. For example, Sessions’ recent guidance on religious liberty has been widely interpreted as a means to provide “cover” to those who want to discriminate against LGBTQ people and others based on stated religious beliefs. 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. In July, the Trump-Sessions DOJ went out of its way to file a friend-of-the court brief in a case to argue that federal law that prohibits sex discrimination in employment does not prohibit bias based on sexual orientation, in direct contradiction to the view of the Equal Employment Opportunity Commission. Sessions has thus failed to effectively discourage and take action against hate crimes and to ensure that such incidents are effectively reported, and has acted in ways that encourage intolerance towards LGBTQ people.
Federal Criminal Law and Mass Incarceration
When he was in the Senate, Sessions was able to stall bipartisan efforts at criminal justice reform, including efforts to end policies of mass incarceration. 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. Sessions personally wrote an op-ed urging longer sentences for drug crimes, which critics have explained will not achieve its objective and will actually harm communities. 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 also personally written to Congress to seek to end a bipartisan appropriations rider that has prevented DOJ from prosecuting people for using medical marijuana that is legal under state law. In January, Sessions rescinded prior DOJ guidance that encouraged deferral to states on marijuana enforcement, producing bipartisan criticism.
Other Sessions actions on criminal law enforcement have raised concerns. In December and earlier, based on complaints from President Trump, Sessions reportedly pressured FBI director Wray to fire longtime deputy director Andrew McCabe, which led Wray to threaten to resign if the pressure continued, a clear distraction from the FBI’s mission. McCabe resigned towards the end of January, reportedly under pressure.
Early in his tenure as AG, moreover, 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. In July, Sessions received bipartisan criticism for making it much easier for police to seize property even from innocent people under asset forfeiture rules. In December, he revoked prior DOJ guidance that warned local courts to be wary of imprisoning or heavily fining poor people who could not pay court costs and fines—the move undid efforts made after evidence developed that police in Ferguson, Missouri were deliberately using this tactic. Independent fact checking, moreover, has cast serious doubt on Sessions’ claim in January that Trump-Sessions policies have cut crime. Just as when he was a Senator, Sessions has opposed rather than promoted efforts to carry out the growing bipartisan consensus to end failed mass incarceration and to implement effective criminal law enforcement.
Sessions has sharply reversed course on effective DOJ efforts concerning improper and abusive local police practices. He 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. A federal judge rejected the delay and signed the decree in April. 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. The state of Illinois had to step in to sue the city in August, and reports as recent as this January make clear that little progress has been made in Chicago after DOJ’s effective withdrawal.
At the end of August, Sessions announced an order signed by Trump (that Sessions called for) that reversed prior policy and authorized the sale of surplus military equipment to local police, including rocket-launchers and bayonets, which civil rights leaders criticized as “dangerous and irresponsible.” The Trump-Sessions DOJ budget proposed a 22 percent cut of some $75 million to DOJ’s largest grant program to help effective state and local law enforcement. And Sessions decided in September to eliminate a part of that program that invited local police to sign up for DOJ performance reviews and reform suggestions to help improve trust between police and the public, a move that the chair of the Congressional Black Caucus called “wrong, reckless, insensitive” and likely to further divide “police departments and communities.” As Attorney General, Sessions has failed to take effective action to help reform abusive police practices and improve police-community relations, and has in fact turned back the clock on DOJ’s earlier positive efforts in this important area.
Prior to becoming Attorney General, Sessions supported Trump’s campaign immigration promises, such as limiting or banning immigration by Muslims, and voted against bipartisan comprehensive immigration reform. As AG, Sessions has done far more than supporting those Trump policies in court. 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, reversing prior DOJ policies. 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. With respect to immigration judges, the Trump-Sessions DOJ began plans in October to develop so-called “performance metrics,” criticized as quotas, to push judges to process cases faster, threatening their independence and the rights of immigrants who appear before them. And in January, Sessions limited the authority of immigration judges to administratively close complicated cases, which could lead to thousands more deportation orders, on top of a significant increase already in 2017.
Throughout his tenure as Attorney General, Sessions has taken aggressive action to try to force state and local governments to cooperate against their will in his efforts against immigrants. Several times, Sessions has threatened to cut off significant federal funding to sanctuary cities—which have taken steps to protect immigrant families and communities—unless they agree to cooperate with aggressive federal immigration actions, such as giving federal immigration agents access to local jails and holding immigrants without a warrant. In fact, on the same day in November that a federal court, joining two other courts that have issued similar decisions, ruled that DOJ could not block funds to Philadelphia because it is a sanctuary city. Sessions threatened to cut off funds to 29 sanctuary jurisdictions. Sessions personally accused Chicago of obstructing federal immigration laws in August, and threatened to subpoena documents from and take other action against sanctuary jurisdictions in January. Homeland Security Secretary Nielsen also revealed in January that DOJ is considering filing criminal charges against sanctuary cities, which experts say would violate the Constitution. In addition, 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.
The Trump-Sessions DOJ has taken actions that are particularly harmful to immigrant children. Sessions initially supported a challenge to the DACA program filed by several states. Then, when a federal judge ruled that Trump’s action ending the program (pursuant to Sessions’ advice) was illegal Sessions took what he himself called the “rare step” of trying to get the Supreme Court to review the decision even before an appellate court had a chance to rule. Just before Christmas, Sessions’ DOJ revoked earlier guidance and issued a new memo to immigration judges that rescinded earlier directives about helping make young children comfortable in courtrooms and instructed judges to be skeptical despite “sympathetic” allegations; a sitting immigration judge called the tone of the memo “very distressing.” And DOJ has been particularly aggressive in trying (unsuccessfully) to defend the decision to try to bar immigrant teens in federal custody from seeking abortions, going so far as to ask the Supreme Court to refer one teen’s lawyer for professional discipline and vacate a judgment in her favor and to argue in another case that the government can disclose to others confidential information about a teen’s pregnancy and abortion plans.
Some actions by the Trump-Sessions DOJ threaten even the rights of long-standing legal immigrants in the US. In December, DOJ revoked earlier guidance about protecting lawful permanent residents against discrimination based on citizenship. That same month, DOJ also asked that a new question on citizenship be added to the 2020 Census, a move that civil rights leaders criticized as impractical, unnecessary, and likely to deter many legal residents from responding to the census at all. And in January, in an apparent effort to buttress Trump claims about the visa lottery program and so-called chain migration, DOJ and DHS released a report claiming that three-fourths of those convicted of terrorism since 2001 were born abroad, even though the report omits domestic terrorism and has no information on those who came to the US through the programs Trump has criticized. As House Judiciary ranking member Jerrold Nadler explained, the report is not only “misleading” but also seeks to “perpetuate a myth” that immigrants are “dangerous.” Sessions himself tried to do the same through a press release claiming the report showed that our immigration system has “undermined our national security and public safety.” Adding insult to injury, Sessions criticized Sen. Lindsey Graham on Fox News in January for appearing to support traditional American immigration policy of helping the poor and disadvantaged, and claimed that “a good nation” should not admit people who are “illiterate” and have “no skills” and may “struggle in our country,” as so many legal immigrants have done. Sessions’ harsh and inhumane actions on immigration are deplorable.
Civil Rights Enforcement
Despite a proud bipartisan DOJ history of civil rights enforcement, Sessions has taken the Justice Department backwards. 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 DOJ case involving religious discrimination against Muslims by a town that refused to allow the building of a mosque. And the Trump-Sessions DOJ has reversed course in two important Supreme Court cases on workers’ rights. In June, it switched sides and abandoned 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 supported big business claims that such contracts are perfectly legal. In December, it switched sides again and argued in an amicus brief that states cannot require that workers who don’t join unions to at least pay for costs of collective bargaining that benefits them, which would seriously harm workers’ rights.
In addition to voting and the areas discussed above, the Trump-Sessions DOJ has harmed civil rights enforcement in other areas over the past year. Despite DOJ’s traditional support for state as well as federal laws that prohibit discrimination in public accommodations, DOJ filed an amicus brief and took part in a hearing in the Masterpiece Cakeshop case in the Supreme Court, claiming that a Colorado public accommodations law cannot require a bakery to provide access to an LGBTQ couple to obtain a wedding cake and making arguments that one commentator called “cynical, dishonest, and embarrassing.” In September, it was learned that DOJ is actively investigating an affirmative action program to promote diversity at Harvard with an eye towards challenging it in court, in accord with an earlier report that DOJ is considering other such challenges. Sessions is also using DOJ resources to file briefs supporting right-wing claims that universities like Berkeley are restricting conservative speakers on campus. And just last week, it was revealed that under Sessions, DOJ has effectively closed an office dedicated to improving access to lawyers for the poor, prompting criticism from civil rights leaders.
The Trump-Sessions DOJ has even turned back the clock on civil rights enforcement concerning discrimination based on disabilities, an area where Republican and Democratic administrations have previously been strong on civil rights. In July, DOJ filed a friend-of-the-court brief in favor of big business and against disabled people, arguing that a company need not provide self-service access to vending machines under the Americans with Disabilities Act. Later that month, DOJ actually withdrew its appeal in support of a sheriff’s deputy who was not permitted to return to a less physically strenuous job after heart surgery, which a former DOJ attorney called “very troubling.” And in December, DOJ withdrew previous guidance to state and local governments on employment service systems, which the National Association of Councils on Developmental Disabilities fears is a “signal” that DOJ will “roll back enforcement” of federal laws against discrimination based on disability.
The 2018 Trump-Sessions DOJ budget, moreover, clearly lays out a blueprint for cutting back even further on civil rights enforcement. Despite increases in funding in other areas, the budget calls for eliminating at least 121 positions in the Civil Rights Division. 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, suggesting that it will try to eliminate such decrees. Sessions has clearly turned back the clock on civil rights at DOJ, defending corporations accused of discrimination, trying to limit the rights and remedies available to discrimination victims, and failing to effectively enforce legal protections that ban discrimination.
America clearly needs an Attorney General who will fight for justice and equality for all, not against them. But fighting against justice and equality is what Jeff Sessions has consistently done in his first year in office. Continued efforts and vigorous oversight and exposure by the press, the public, and by Congress will be crucial in the future, as will be efforts in the courts to try to stop Sessions’ harmful agenda.