Hearings for President-elect Donald Trump’s Cabinet picks begin Jan. 10, starting with one of the most high-profile nominations: Sen. Jeff Sessions (R-Ala.) for attorney general of the United States.
Previously, we dug into two controversial aspects of his background that are likely to come up in his confirmation hearings: a 1985 voter fraud case that Sessions prosecuted, and his comments on race. Sessions was U.S. attorney in the Southern District of Alabama from 1981 to 1993. We decided to take a look at another part of his background — his record on civil rights enforcement.
The Trump transition team’s memo defending the president-elect’s Cabinet picks claims Sessions has a “strong civil rights record,” which includes “a host of desegregation lawsuits he filed in Alabama while he was U.S. attorney.” Many of his supporters have been citing this memo to defend Sessions’s record. So we took a look at some of the demonstrative cases highlighted by Sessions’s staff and Trump’s transition team and explored Sessions’s role in the cases.
A spokesman for Sessions provided news articles quoting African American leaders praising Sessions and supporting him for attorney general. Among those quoted were William Huntley, employee in Sessions’s U.S. Attorney’s Office who has known Sessions for three decades, who told Politico that he never encountered racial insensitivity from Sessions.
We asked the Trump transition team and Sessions’s staff for cases that demonstrate Sessions’s “strong civil rights record.” We received a list of six “top civil rights enforcement” cases, including four that involved voting rights and desegregation of public schools in Alabama. Sessions also listed these four cases in a questionnaire to the Senate Judiciary Committee as among the 10 most significant litigated matters that he personally handled.
In a supplement to the questionnaire, Sessions clarified that his role in these four cases was to “provide support for the Department of Justice, Civil Rights Division, attorneys. I reviewed, supported and co-signed complaints, motions, and other pleadings and briefs that were filed during my tenure as U.S. attorney. I provided assistance and guidance to the Civil Rights Division attorneys, had an open-door policy with them, and cooperated with them on these cases.”
United States v. Conecuh County, et al.
Sessions described this 1983 case was the “first voter suppression lawsuit ever instituted by the United States Department of Justice. I am honored to have been a part of it.”
This case was filed while Sessions was U.S. attorney, and his name is on the 1983 lawsuit. The lawsuit charged that black voters in Conecuh County, Ala., were harassed and intimidated at the polls. The lawsuit was filed against the county, county election officials and Democratic and Republican county executive committees, according to the Associated Press.
John Tanner, former Justice Department attorney and main attorney on the case, told The Atlantic that Sessions was “interested” and “supportive” of the Civil Rights Division attorneys who did most of the work on the case.
“We conduct our own investigations, we worked out of the office, the U.S. attorney’s offices sometimes send someone in to introduce the D.C. attorney to the court as a courtesy,” Tanner told The Atlantic. “On that one, most of the fact gathering was from having federal observers present, and that is an operation that’s run out of D.C.”
Birdie Mae Davis v. Board of School Commissioners of Mobile County
Three other cases listed on the information from Sessions’s staff and his Senate questionnaire are cases that were filed before Sessions became United States attorney. Attorneys in these three cases dispute that Sessions played any substantive role.
The Davis lawsuit was filed in 1963 and lasted until 1997, making it the longest running secondary school desegregation case in the country, according to the Encyclopedia of Alabama. The lawsuit aimed to desegregate public schools in Mobile.
In his questionnaire, Sessions described working with the NAACP Legal Defense Fund to challenge the consent decree in the case, “alleging that the school district had yet to fully integrate.” Sessions co-filed briefs arguing that the schools were not yet fully integrated, and his name was on some of the key filings.
But a co-counsel in the case, Joseph D. Rich of Lawyers Committee for Civil Rights Under Law, said Sessions did not provide him any guidance or assistance in writing a key brief in 1985 challenging whether the schools were fully integrated.
“U.S. attorneys did not participate in school desegregation cases,” said Rich, who worked on such cases for nearly two decades. “There were only a few occasions where the U.S. attorney even discussed cases with me, or was interested in what we were doing, and it was never Sessions. I never met Sessions.”
U.S. v. Dallas County and U.S. v. Marengo County
These two cases involved the at-large election system in Alabama, and were both filed in 1978 before Sessions became U.S. attorney.
J. Gerald Hebert, a vocal Sessions critic who was co-counsel in both cases, co-authored an op-ed in The Washington Post disputing that Sessions played a substantive role in either case. The U.S. attorney’s role, by design, was more of a formality than an active role, he wrote:
“Division lawyers decide which cases to bring, where to bring them and the contours of the legal theory presented to the court. When a complaint is filed, the custom is for the local federal prosecutor, the U.S. attorney, to sign it and perhaps other substantive court filings. This step is a mere formality. In rare cases, the U.S. attorney also provides input to the Civil Rights Division attorneys about the substance of the case or the legal strategy. But the role is limited to that of an adviser to the division lawyers driving the litigation.”
During confirmation hearings for Sessions’s failed bid for federal judgeship in 1986, Hebert testified that Sessions provided assistance and guidance, and that he had an open-door policy. Hebert told The Fact Checker that the assistance and guidance from Sessions mostly involved logistics. For example, Sessions gave Hebert keys to use the U.S. Attorney’s Office in Mobile while he was in town to work on a case.
“In terms of the substantive involvement in any of the cases, in terms of getting advice on who we should take deposition on, how to frame arguments in our briefs, whether we should file certain motions, what witnesses to call to trial — he had zero involvement in any of that,” Hebert said.
An official involved with the Trump transition said Sessions could have fought any of these cases, but chose not to. Instead, Sessions allowed the cases to move forward, and reviewed the documents that carried his signature. The role of a United States attorney is by nature supervisory, the official said.
The official also noted that the wording in the memo obtained by The Post and Politico is not technically accurate. Sessions never claimed to have taken lead role or filed the cases from scratch, and the cases should be described as “civil rights enforcement” cases rather than “desegregation lawsuits,” the official said. Only the Davis case involves desegregation.
“The U.S. attorney has a lot of discretion in his jurisdiction. … If he didn’t want to participate, he didn’t have to,” the official said. “As a lawyer, that’s what you’re judged by. You’re responsible for the arguments and facts in the brief, as a lawyer. … He voluntarily proceeded with [civil rights enforcement] cases against white establishment figures in Alabama when he didn’t have to.”
Indeed, Sessions cooperated in a way that some other U.S. attorneys did not, according to Hebert and another former DOJ official who testified during the 1986 confirmation hearing of Sessions. Hebert testified then: “We have had considerable difficulty with several U.S. attorneys in cases we have wanted to bring. We have not experienced that difficulty in the cases that I have handled with Mr. Sessions. In fact, quite the contrary.”
The Pinocchio Test
The Trump team memo makes it seem as though Sessions took a more active role in bringing these lawsuits. Supporters should be wary of the wording in this memo, which an official involved with the transition says overstated Sessions’s role in these cases. There was one desegregation case that Sessions was involved in as U.S. attorney, and the others involve voting rights. Three of four cases were underway when Sessions took office.
Sessions has said he was familiar with the facts and arguments, and that he supported the investigations and litigation. Sessions listed these cases as ones that he was personally involved in, but he later clarified to say that his main role was to “provide support” for attorneys in the Justice Department’s Civil Rights Division.
By design, attorneys in the Justice Department’s Civil Rights Division were directly responsible for the day-to-day tasks in these legal cases. Sessions, as United States attorney, had a supervisory role. Sessions’s “strong record” on civil rights has more to do with the fact that he didn’t interfere in these cases, or otherwise make it difficult for the Civil Rights Division attorneys to do their jobs.
We will not issue a Pinocchio rating. There is no particular name attached to this memo or a primary document released to the public by the Trump transition team — and the transition team acknowledged aspects of the memo were erroneous.
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