02.07.17

Statement Of Senator Patrick Leahy, On the Nomination of Senator Jeff Sessions To Be The Attorney General Of The United States

This week we must decide whether Senator Sessions—someone many of us have known and worked with for years—is the right person to lead the Department of Justice.  I have decided that he is not, and I want to share a few reasons why.  Last week, the Trump administration underscored what is at stake with this nomination.  When the administration accused Acting Attorney General Sally Yates of having “betrayed the Department of Justice,” it exposed a view of the Justice Department that is disturbing and dangerous.  To claim that Ms. Yates “betrayed” the Department by refusing to defend the president’s illegal and shameful executive order, you have to believe that the Attorney General’s job is to defend the president at all costs.  That is wrong.   

There is a reason the Justice Department is not led by a Secretary of Justice: the Attorney General is the people’s attorney, not the president’s attorney.  The Trump administration has already shown us why this distinction matters.  Within its first two weeks, this administration found itself rebuked in numerous Federal courts around the country.  Its extreme agenda casts a shadow over all of the president’s nominees.  This is an administration that was even criticized yesterday by John Yoo in a New York Times op-ed titled “Executive Power Run Amok.”  You know there is a problem when the man who twisted the law in order to greenlight torture thinks you have gone too far. 

This president seems to have a penchant for going too far.  During the campaign he promised he would implement a Muslim ban.  As president, he then signed an executive order that barred immigration from certain Muslim-majority countries, but created exceptions that gave preference to members of minority religions—that is, to non-Muslims.  This is nothing more than a Muslim ban by another name.  When a federal judge in Washington State temporarily blocked this order, President Trump did not express respectful disagreement.  He took to Twitter to attack the judge’s legitimacy, labeling him a “so-called judge.”  He then attempted to blame this judge—who was nominated by a Republican president and confirmed by a Republican Senate—for any future terrorist attack on this country.  The president’s words are beyond outrageous.  He seems intent on precipitating a constitutional crisis.   

This is why the question of who should be our next Attorney General is so critical.  This is a president who will need to be told “no.”  Ms. Yates understood this.  Two years ago, Senator Sessions asked Ms. Yates:

“Do you think the Attorney General has a responsibility to say no to the president if he asks for something that's improper? A lot of people have defended the Lynch nomination, for example, by saying, well, he appoints somebody who's going to execute his views. What's wrong with that? But if the views the President wants to execute are unlawful, should the Attorney General or the Deputy Attorney General say no?”

Ms. Yates answered that her duty was to the Constitution.  Just two years later she proved that by telling the president that his travel ban was indefensible under the law.  After reviewing his long record, and his responses to the many questions of the Senate Judiciary Committee, I am simply not convinced that Senator Sessions is capable of telling the president “no.” 

Under oath, Senator Sessions denied that he was involved in creating the Muslim ban executive order.  I will take him at his word.  But Senator Sessions’ views on this issue are well known to members of the Senate Judiciary Committee.  In 2015, I offered a simple resolution in the Committee that expressed the sense of the Senate that “the United States must not bar individuals from entering into the United States based on their religion.”  All Democrats and most Republicans – including Senator Grassley, the chairman of the Committee – voted in support of my resolution.  The Committee recognized that imposing a religious test for those who seek to enter this country violates our most cherished values.  But Senator Sessions broke from his Republican colleagues and strongly opposed the resolution.  I found that deeply concerning in 2015.  I find that even more disturbing now that he seeks to be our nation’s top law enforcement official.  We need an Attorney General who would stand in the way of religious discrimination, not one who endorses it.

Today, I am introducing a very similar resolution.  It reaffirms that no one should be blocked from entering the United States because of their nationality or religion.  I invite Senator Sessions, who is still taking an active role as a Senator, including voting on controversial cabinet nominees for President Trump, to cosponsor this resolution.  It would help to reassure Americans that he stands against religious discrimination and religious tests.

But my concerns about whether Senator Sessions would be willing to tell President Trump “no” extend well beyond religious tests.  Senator Sessions did not demonstrate to the Judiciary Committee that he would be willing to tell the president “no” on any issue, no matter how objectionable.  Take, for example, the president’s many conflicts of interest.  For months, there has been media coverage about President Trump’s conflicts of interest and the constitutional concerns they present.  Yet Senator Sessions repeatedly evaded my written questions on this topic by claiming that he has “not studied the issue.”  

I asked Senator Sessions whether President Trump should follow guidance from the Office of Government Ethics and divest from assets that might create a conflict of interest.  Senator Sessions said that he has not studied the issue. 

I asked Senator Sessions whether President Trump receiving payments from entities controlled by foreign governments raises any concerns under the Emoluments Clause of the Constitution, which forbids such payments absent Congressional consent.  Senator Sessions said that he has not studied the issue.

I asked Senator Sessions whether President Trump’s family members who are running the organization that he still owns should participate in policy discussions or meetings with foreign governments.  Again Senator Sessions said that he has not studied the issue.

Senator Sessions has refused to acknowledge that it is a conflict of interest for a president to have a personal financial stake in the policies pursued by his administration.  This is the very definition of a conflict of interest: presidents should not personally profit from their decisions.  Senator Sessions’ response is particularly troubling because I know that he knows the right answer.  He told Senator Feinstein at his hearing that “I own no individual stocks because I want to be sure that I don’t have conflicts of interest.”  He added, “I want to adhere to high standards.”  But Senator Sessions apparently refuses to hold the president to any standards at all.

Senator Sessions’ willful blindness extends even to the Russian interference in our democracy.  In response to questions on the intelligence community’s report on Russian interference, he repeatedly responded by stating, “I have not reviewed the report, but I have no reason not to accept the intelligence community’s conclusion(s) as contained in the report.”  I asked him whether the activities described in the report are illegal and a threat to our democratic process.  For anyone other than President Trump, that is not a difficult question.  The answer should be an obvious “yes.”  But Senator Sessions refused to answer.  If Senator Sessions is not willing even to acknowledge facts that make President Trump uncomfortable, how can we believe that Attorney General Sessions would ever say “no” to President Trump? 

Senator Sessions also refused to answer questions from all nine Democrats on the Judiciary Committee on how he would respond if President Trump pressured him to end any investigations into Russian interference in our elections. 

There is simply nothing in Senator Sessions’ testimony before the Judiciary Committee that gives me confidence that he would be willing to stand up to the president.  He has instead demonstrated only blind allegiance.  This is a president who started citing alternative facts to deny his small crowd size at his inauguration, but who is now citing alternative facts to excuse murders by Putin’s regime.  That should alarm us all.

Later tonight I will describe my concerns with Senator Sessions’ record on civil rights issues.  But I have one concern that is made much worse given Senator Sessions’ lack of independence from President Trump: I am particularly worried that if confirmed Senator Sessions will fail to protect Americans’ constitutional right to vote.  Nothing is more sacred in our democracy than the right to vote.  Yet Senator Sessions declared it “a good day for the South” when the Shelby County decision was handed down, effectively gutting the Voting Rights Act.  The fact that Senator Sessions voted to reauthorize the Voting Rights Act in 2006 provides me little comfort when immediately after the unanimous vote, he turned around and argued it was unconstitutional.  When I asked Senator Sessions whether he believed that Section 2 of the Voting Rights Act, which remains in force, is constitutional, Senator Sessions refused to answer.  These are not the actions of someone who is committed to ensuring the right to vote for all Americans.

And, once again, we cannot view Senator Sessions’ record on this issue in isolation.  The fact is he is nominated to be President Trump’s Attorney General, and the president has his own views on voting in America. Several Republicans, like Speaker Ryan and Senator Graham, have rightly condemned President Trump’s wild conspiracy theory that millions of illegal votes cost him the popular vote.  I fear this dangerous falsehood will be used to justify further attacks the hard-won right to vote for racial minorities, students, poor and elderly citizens.  But Senator Sessions again refused to acknowledge a fundamental and plainly visible fact: that the president is flat out wrong.  Senator Sessions responded to me that he does not know what data the president might have relied upon.  The rest of us know there is no such data, but Senator Sessions refuses to admit as much.

Senator Sessions’ close ties to President Trump, and the important role he has played in formulating President Trump’s agenda, raise important questions about his impartiality in matters involving the president.  I asked him several times about scenarios in which he would recuse himself given clear conflicts of interest, but he brushed these questions off.  He claimed he was “merely . . . a supporter of the president’s during the campaign.”  I fear Senator Sessions is selling himself short.  He was widely reported to be a central figure in the Trump campaign. Steve Bannon called him the president’s “clearinghouse for policy and philosophy.”

This relationship appears to fly in the face of the Justice Department’s recusal standards.  The Department’s standards mandate recusal when the attorney has “a close identification with an elected official . . . arising from service as a principal adviser thereto or a principal official thereof.”  I asked Senator Sessions whether that language would apply to his relationship to President Trump, but he refused to say one way or the other. 

I am concerned that the independence of the Justice Department will be in jeopardy under this administration.  It is already clear that the cost of saying “no” to the president is your job.  Now more than ever, we need an Attorney General willing to pay that cost.  I am not convinced that describes Senator Sessions.  Throughout his nomination, he has not demonstrated the independence that he himself once demanded of nominees.

David Frum, a former speechwriter for President George W. Bush, recently wrote an article in the Atlantic addressing whether someone should accept an invitation to serve in the Trump Administration given the real risk that there may be tremendous “pressure to do the wrong thing.”  The “very first thing to consider,” Frum asked, is

[h]ow sure are you that you indeed would say no? And then humbly consider this second troubling question: If the Trump administration were as convinced as you are that you would do the right thing—would they have asked you in the first place?”

In the case of the nominee before us—the Trump administration’s “clearinghouse for policy and philosophy”—I fear that the answers to these questions are as clear as they are troubling.  I will be voting against this nomination.

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