Jeff Sessions, an Appreciation

Former Attorney General and US Senator Jeff Sessions yesterday lost his bid to return to the Senate when he was defeated in the Alabama Republican primary.  In my view, Sessions was one of the very best members of Congress in standing up for sober criminal justice policies.  He did this for most of his public life, starting in 1975 when he became an Assistant US Attorney for the Southern District of Alabama.  In 1981, President Reagan appointed him to be US Attorney; in 1994, he was elected Attorney General of Alabama, and two years later, he handily won a Senate seat.  He served in the Senate until President Trump appointed him Attorney General in February 2017.  He resigned, at the President’s insistence, 20 months later.

Although Sessions’ contributions to sound criminal justice policy were substantial to say the least, they are not, in my view, the reason for which his public service should best be remembered.

Sessions was the first Senator to back Trump’s campaign for the Republican presidential nomination  —  an important gain for Trump, the outsider candidate in the field.  When Trump won his upset victory, Sessions was a natural choice to be AG, given his long experience as a state and federal prosecutor, his years of service on the Senate Judiciary Committee, and his strong conservative views.

But trouble was brewing almost from the start.  On March 2, 2017, Sessions announced that he would recuse himself from any investigations into Russia’s interference in the 2016 presidential election, or any other matters related to the 2016 presidential election. He had been advised to do so by career Justice Department attorneys, citing concerns about impartiality given his prominent role in the Trump election campaign, and specifically 28 USC 528, which provides in part (emphasis added):

The Attorney General shall promulgate rules and regulations which require the disqualification of any officer or employee of the Department of Justice, including a United States attorney or a member of such attorney’s staff, from participation in a particular investigation or prosecution if such participation may result in a personal, financial, or political conflict of interest, or the appearance thereof.

Sessions’ recusal nonetheless infuriated the President, who felt, not without reason, that the Mueller investigation had a partisan cast to it, particularly given the Democratic leanings (and contributions) of many of the attorneys on Mueller’s team.  But Sessions stood his ground and would not rescind his recusal, even after the President repeatedly and publicly rebuked and belittled him.  Eventually the President lost patience, and directed Sessions to resign, which he did the day after the 2018 mid-term elections.

It’s possible to think that the extent of Sessions’ recusal was broader than it needed to be.  It’s also possible to think that Sessions would have done better to anticipate the extent of the disruption the Mueller investigation would cause, and advise Trump in advance that his recusal from supervising the Special Counsel would be required.  But it is not possible to doubt that Sessions is a profile in courage of the sort seldom seen in this, or any, town.  He did what he thought was ethical and right, even though it cost him months of unhinged, caustic criticism from both friend and foe, and eventually cost him one of the most powerful jobs in America,  a job he cherished and for which he was eminently qualified.

Washington is full of people who will cut a corner here and cut a corner there to get to where they want to go.  This is plenty bad in politics and even worse, and far more dangerous, in law.  We are seeing some of it now, at last, as the details seep out about how Mueller’s investigation of Gen. Flynn show a shocking lack of straight dealing and an equally shocking political agenda inside the FBI.  Indeed, the smell of that investigation so befouls the air that DOJ has concluded, correctly in my view, that Flynn’s conviction cannot stand.  The methods used to secure it amount to a stain on the Justice Department that needs to be removed.

At the end of the day  —  and in a mind-bending irony  —  Jeff Sessions stood for everything the Mueller investigation lacked:  Following rules of honorable and straight dealing even were it hurts (indeed, especially where it hurts).

Sessions could have declined to recuse himself, satisfied the President, and not have taken any more condemnation than he was already going to get from a leftist media that detested him from the getgo.  But he knew what ethical behavior required of him.  He did it because he viewed his entire tenure as Attorney General, indeed his entire career in public service, as devoted to the rule of law.  To the very end, and at great personal cost, it was.

Sessions paid a gigantic price. I’m sure his enemies are snickering today.  But he kept his honor clean.