Federal Courts and Nominations

OP-ED: One of the Burdens Jeff Sessions Didn’t Satisfy at this Week’s Confirmation Hearing

At his confirmation hearing this week, the burden was on Jeff Sessions to prove to the Senate and to the American people that, if confirmed, he would have the independence and integrity necessary to serve as the United States Attorney General, even if that meant standing up to the man who put him in office. That is a burden that he utterly failed to meet.

As Sessions himself has acknowledged, the Attorney General is the people’s lawyer, not the President’s. This means that it is not the Attorney General’s responsibility to defend the President’s actions, no matter how unlawful; rather, it is his responsibility to defend the Constitution and the laws of the land and to tell the President “no” if he seeks to engage in activity that runs afoul of those laws. As Sessions put it in the past, “”[T]he attorney general has got to say no to the [P]resident if he wants to do something, just like a good corporate lawyer has to tell the CEO sometimes, ‘We can’t do it that way, Mr. CEO or Mr. President. You can do it this way, but you can’t do it that way.’”

When Senator Sessions walked into the hearing room this week, there was good reason to be skeptical that he would be able, if confirmed, to fulfill that responsibility. As an op-ed on his tenure as Attorney General of Alabama explains, he “produced legally flawed opinions that were favorable to” the sitting governor, not to mention “conveniently[] aligned with the interests of one of Alabama’s most politically powerful and deep-pocketed organizations.” He was, as the op-ed put it, “a rubber-stamp loyalist.” He is also incredibly close to the President-elect, having been the first sitting U.S. Senator to endorse Trump, an active participant in the campaign, and a close adviser.

Thus, coming into that room, Sessions needed to make clear that, if confirmed, he could put aside his ties to the President, and that he would be able to do as United States Attorney General what he was apparently unable to do as Alabama Attorney General. He didn’t do it. To be sure, Sessions said in general terms what he was supposed to—that he would be willing to say no to Trump and that he wouldn’t be a “rubber stamp”—but what other answer could he possibly have given? The real test was when he was asked about specifics, and when that test came, he failed to put his money where his mouth was.

Senator Richard Blumenthal, for example, asked Sessions about the conflict presented by Trump’s multi-million dollar loan from Deutsche Bank, a bank that has been the subject of investigation by the current Justice Department for “creating and repackaging bad mortgage products.” As one news outlet has explained, the Justice Department has been trying to reach a settlement with Deutsche Bank, but if that settlement is not reached by January 20, “a federal government run by Trump will have to decide how hard to push the bank that Trump owes so much to and that has been critical to Trump’s fortunes.” Somewhat inexplicably, given the many, many stories about this issue, Sessions told Blumenthal that he wasn’t “aware of that case” and was “totally uninformed” about its merits.

Sessions also plead ignorance when Senator Blumenthal asked him about the Emoluments Clauses, key anti-corruption provisions of the Constitution designed to ensure that the nation’s leaders serve the people’s interests, and not their own. The Foreign Emoluments Clause prohibits the President, absent congressional consent, from receiving emoluments—compensation, gifts, or other forms of profit or gain—from foreign governments, while the Domestic Emoluments Clause prohibits the President from receiving them from state governments and their instrumentalities.

After acknowledging that the Clauses apply to the President, Sessions said, “[T]he discussion is to what extent does it apply and how does it apply in a concrete situation, which I have not studied.” Perhaps just as Sessions has missed the Deutsche Bank stories, he’s also failed to read the many, many stories about the constitutional problems posed by Trump’s business and financial conflicts.

Sessions’ response was not that surprising—he has long been disturbingly silent about Trump’s Emoluments Clause problems and other extremely troubling aspects of Trump’s candidacy, such as Trump’s promises to take actions that would violate the civil liberties of American Muslims. But even if it is not surprising, it is troubling. And it is more troubling now than ever, after President-elect Trump’s press conference yesterday in which he presented his plan for dealing with his conflicts issues—a plan that notably fails to adequately address the Foreign Emoluments Clause and does not even try to address the Domestic Emoluments Clause.

The Senate and the American people both have a right to know whether Sessions will stand up to Trump and truly be the people’s lawyer, not the President’s. General promises aside, Sessions didn’t demonstrate this at his hearing, which means there’s no reason for anyone to think that he will be willing to say “no” to this President, even though – as Sessions himself has said – that’s exactly what an Attorney General sometimes needs to do.

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