Donald Trump’s decision to nominate Sen. Jeff Sessions as attorney general is being met with alarm at the Justice Department’s civil rights division and could trigger an exodus there, former officials said Friday.
Longtime lawyers in the unit that enforces voting rights laws and conducts investigations into alleged police abuses and hate crimes were already on edge about what Trump’s victory would mean for their mission, but the selection of Sessions pushed those fears to another level, former officials said.
“If there was a level above DEFCON One, it would be that,” said Sam Bagenstos, who was the civil rights division’s No. 2 official from 2009 to 2011. “Jeff Sessions has a unique and uniquely troubled history with the civil rights division…From the perspective of the work of the enforcement of civil rights, I think the Sessions pick is a particularly troublesome one—more than anyone else you can think of.”
The concern at the Justice Department’s anti-discrimination unit stems largely from the same accounts of alleged racist remarks and racially-tinged incidents that emerged when Sessions was nominated to a district court judgeship in 1986. The Senate Judiciary Committee heard a black lawyer testify that Sessions referred to him as “boy” and another attorney testify that Sessions said about the Ku Klux Klan that he thought the group was “OK, until I heard that they smoked pot.”
Sessions said that was a joke and he denied allegations that he’d used an ugly racial epithet. But his nomination was voted down 10-8, only the second time that had happened in half a century.
However, the grievances many of the Justice Department’s civil rights enforcers have with Sessions go beyond his language to his actions as U.S. Attorney in Mobile, where he unsuccessfully prosecuted black civil rights leaders on charges of ballot-tampering.
One of the activists, who was acquitted, was Albert Turner, a former aide to Rev. Martin Luther King Jr. Civil rights groups at the time called the charges a “witch hunt” conducted by the Reagan Justice Department while refusing to prosecute white election officials. Sessions was quoted after the trial as saying Turner “put on a brilliant defense and whipped us fair and square in the courtroom, but I guarantee you there was sufficient evidence for a conviction.”
“This is a person who got his start as a public figure through prosecutions of voting rights activists for registering people to vote. The enmity the civil rights community has for him is authentically earned,” said Bagenstos, now a law professor at the University of Michigan. “The career lawyers in the civil rights division now have a lot of nervousness and the Sessions nomination will make a lot of them who are on the fence about staying or going think a lot more seriously about going.”
Sessions’ allies insisted the claims of racial bias and insensitivity are off-base and amount to thinly veiled disagreement with the senator’s political views.
“The only reason folks are criticizing him is because people don’t like his conservative principles,” said Hasn von Spakovsky, a former official in the Justice Department’s civil rights division under President George W. Bush. “He’s a very good guy. The claims resurrecting these claims of racism are complete and total bull.”
Von Spakovsky said Sessions’ critics were intentionally or inadvertently ignoring his efforts to fight racism in his home state. “It was his case that he filed against the KKK that helped break the back of the Klan in Alabama,” von Spakovsky said.
The former Justice official agreed that there might be a wave of resignations in the civil rights division, but he said that wouldn’t be a bad thing because the division’s hiring practices have led to an influx of liberal ideologues.
“There may be an exodus. I hope, frankly, there is,” said von Spakovsky, now with the conservative Heritage Foundation.
Some other conservatives said they were unconcerned about Sessions and pleased with the list of lawyers Trump has designated to head up the transition at the Justice Department.
“My biggest fear with Trump is that he ran as an authoritarian who would ignore the rule of law,” said former prosecutor Orin Kerr, who previously described himself as in the “never Trump” camp. “But Senator Sessions is no authoritarian, and the announced members of the transition team are mainstream and establishment GOP.”
An attorney who served at the Justice Department under President Bill Clinton and later as a Democratic counsel on the Senate Judiciary Committee, Lisa Graves, said she was worried about Sessions’ impact on the civil rights division’s work investigating cases of deadly use of force by police.
“With respect to Sessions’ background, I think it’s a really serious question of whether he will at all continue the Justice Department’s process of examining these cases where people are shot who are unarmed and often African American,” said Graves, now with the liberal Center for Media and Democracy. “I just don’t have any confidence he’ll do the right thing.”
While there was an outpouring of criticism from liberal groups Friday, with some calling Sessions’ nomination “shocking” and recounting many of the allegations that torpedoed his judicial nomination three decades ago, those troubled by his nomination as attorney general have no obvious way to block his nomination.
A spokesman for Trump, Jason Miller, said the president-elect’s team is “very confident” Sessions will win Senate approval.
“Sen. Sessions is someone who is universally respected across party lines in the U.S. Senate,” Miller told reporters on a conference call Friday morning. “We feel very confident that Sen. Sessions has the background and the support to receive confirmation.”
The Trump spokesman also sought to rebut some of the criticism of Sessions’ civil rights record by noting that he filed several desegregation lawsuits while he was U.S. attorney for the Southern district of Alabama and voted in favor of the extension of the Voting Rights Act in 2006. Miller also mentioned Sessions’ vote to confirm President Barack Obama’s nomination in 2009 of the first African-American attorney general, Eric Holder.
And the Trump aide noted that one senator who voted against Sessions’ judicial nomination in 1986, Arlen Specter of Pennsylvania, later called that vote “a mistake” and praised Sessions as “egalitarian.” Specter died in 2012.
Indeed, several current Republican senators endorsed their colleague’s nomination Friday. Democrats generally expressed concerns about aspects of Sessions’ record, but said they were keeping an open mind until confirmation hearings are held—hearings where many of the most sensational allegations against the attorney general nominee seem certain to be re-aired.
“It’s going to be tough,” said William Yeomans, who worked in the civil rights division for 23 years and then on the Judiciary Committee under Sen. Ted Kennedy (D-Mass.). “There will be vigorous opposition from the Democrats and strong opposition from outside groups, but we are in such an extraordinary period.”
“The presidential campaign makes you think that things like racially-charged comments or xenophobia aren’t disqualifying any more,” he added. “I mean, you elected a president who said many of those things, so it’s hard to know what the reaction is going to be.”
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