By David Cole
Under almost any other circumstances, the firing of Attorney General Jeff Sessions would be a moment for dancing in the streets. Sessions oversaw a Justice Department that systematically undermined civil liberties and civil rights.
But his departure portends no improvement on these fronts. And the fact that President Trump fired him, notwithstanding his faithful advancement of the president’s agenda, should raise alarm bells.
Sessions leaves the Justice Department far less committed to justice than he found it. Under President Barack Obama, the department expanded the rights of LGBTQ individuals, responded aggressively to police abuse, directed federal prosecutors to use their charging discretion wisely to reduce mass incarceration, promoted voting rights, reduced reliance on private prisons and commuted lengthy sentences imposed on nonviolent drug offenders. Sessions could not reincarcerate the men and women whose sentences Obama commuted, but he reversed virtually everything else.
Instead of protecting the most vulnerable among us, the Justice Department under Sessions targeted them. One of his earliest actions was to rescind a guidance requiring schools to allow transgender students to use the bathroom associated with their gender identity. In then-ongoing litigation, he abandoned the department’s long-standing position that Texas’s voter-ID law was racially discriminatory. He sought to back out of a consent decree with the Baltimore Police Department requiring it to reform its civil rights violations, and issued a memo as he was leaving the office that radically curtails the federal government’s ability to impose reform on abusive police departments nationwide. He directed federal prosecutors to pursue the most severe charges possible against criminal defendants, regardless of mitigating circumstances. He reversed 20 years of consistent Justice Department policy to support an Ohio practice of purging voters from the rolls for failing to vote.
Sessions reserved his most egregious actions, however, for immigrants — a group that cannot defend itself through the political process because they cannot vote. He defended Trump’s travel ban, which barred entrance to the United States to tens of thousands of people from predominantly Muslim countries. He imposed quotas on immigration judges, which the judges themselves have said make it impossible to provide fair hearings to those whose cases they are adjudicating. He made it harder for victims of rape and gang violence to obtain asylum in the United States. He sought to punish cities and towns that chose, as is their right under the Constitution, to leave immigration enforcement to the federal government. He was a vocal proponent of ending protection for “dreamers,” the young undocumented people to whom Obama granted relief from deportation. (A federal court of appeals ruled Thursday that the decision to rescind protection was arbitrary and unlawful.) And perhaps most cruelly of all, he promoted and defended Trump’s family separation policy, in which young children were forcibly taken from their parents for months at a time, often without even accounting for where the children were sent and held, as a way of deterring immigration to the United States.
So from the standpoint of those most in need of justice, Sessions will not be missed. But he did do the right thing in standing up to the president on an issue even more fundamental to our constitutional system: the principle that no one is above the law.
Sessions properly recused himself from overseeing special counsel Robert S. Mueller III’s investigation of the Trump campaign’s possible collusion with Russian interference in the 2016 presidential campaign — because, as a member of the campaign himself, he had to. Trump never forgave Sessions for his refusal to put personal loyalty to Trump over his professional obligation to the law. But that is what our system demands. And there is every indication that Sessions’s acting successor, Matthew G. Whitaker, was selected precisely because, unlike Sessions, he will do Trump’s bidding in obstructing the Mueller investigation.
As important as civil rights and civil liberties are, there are some values that are even more fundamental. The rule of law holds that everyone must be subject to the law’s dictates, that no one is above the law and that no one can be the judge in his own case. That’s why Sessions, on the advice of ethics lawyers in the Justice Department, recused himself from the Mueller investigation. And it was that fidelity to law over personal loyalty to Trump that the president could not abide.
The president has now fired an FBI director and an attorney general for the same reason: They would not do his personal bidding and halt a criminal investigation into his own campaign’s wrongdoing. If Whitaker chooses a different path, it won’t be only civil liberties and civil rights that are at stake; it will be our constitutional democracy.
David Cole is national legal director of the ACLU and a professor at Georgetown University Law Center.