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Opinion Questions for Jeff Sessions

The Senate Judiciary Committee is holding a confirmation hearing for President-elect Donald Trump's nominee for attorney general, Sen. Jeff Sessions (R-Ala.). (Video: Reuters)
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In November, President-elect Donald Trump nominated Sen. Jeff Sessions (R-Ala.) to be the next attorney general. Sessions’s nomination hearing is underway. Here are some questions he ought to be asked:

• In 1997, you said that the very phrase prosecutorial misconduct “offends” you, and you accused defense attorneys of abusing prosecutors. Since then, we’ve seen a wide range of reports and judicial opinions demonstrating that prosecutor misconduct is indeed a real problem in the United States. A 2014 investigation by the Justice Department itself found 650 incidents where federal prosecutors and other Justice Department employees “violated rules, laws, or ethical standards governing their work” over a 10-year period ending in 2013, more than 400 of which the department categorized as serious or intentional. Federal judge Alex Kozinksi, a Reagan appointee, has called prosecutor misconduct an epidemic. Do you still feel that this is an issue concocted by defense attorneys?

• Allegations of misconduct by federal prosecutors are handled by the Office of Professional Responsibility. That office is notoriously opaque. While it was that office that conducted the 2014 study noted above, DOJ refused to release the names of the prosecutors found to have committed misconduct. In fact, the disciplinary records of federal prosecutors are not only kept from the public but also from the Justice Department’s inspector general. Federal prosecutors wield enormous power. Their actions can ruin lives. Do you think the public — or at least the Justice Department inspector general — deserves to know when prosecutors have abused their power?

Jeff Sessions says he handled these civil rights cases. He barely touched them.

In the Los Angeles Times, Mark Oppenheimer recently wrote about you, “I couldn’t find a single example of Sessions stating in public that a prosecutor was too zealous, or that a defendant needed more vigorous representation.” So here’s your opportunity: Can you name three examples in which you think a prosecutor abused his or her authority or engaged in misconduct?

• In the past, you have criticized nominees for government positions for, as you put it, “defending terrorists.” Do you believe that everyone facing criminal charges by U.S. prosecutors has the right to a vigorous defense — paid for by the government, if necessary? If not, who doesn’t?

• There has also recently been a spate of studies showing that the indigent defense system in the United States is woefully inadequate, including at the federal level. You once won a death penalty sentence against a man whose attorney was getting paid less than $5 per hour. The attorney hadn’t even read the state’s death penalty statute before his client’s sentencing hearing. In another of your death penalty wins, the defendant’s attorney had been practicing law for less than a year. Are you still comfortable with those convictions? Do you think most people who face criminal charges in America are provided with an adequate defense?

• In Alabama, you once supported a bill calling for the execution of people who had been convicted of drug trafficking. Do you still support that policy? You also supported measures to limit appeals and speed up executions. So far, 20 people have been exonerated by DNA testing after being sentenced to death. Does that figure bother you at all?

• As attorney general in Alabama, you fought to preserve more than 40 death sentences. John J. Donohue III and Max Schoening recently wrote in the New York Times that many of those defendants were shown to be either “mentally retarded” or certifiably mentally ill. Perhaps you believe those defendants were misclassified, but as a general matter, do you believe the state should execute such people?

• Alabama is one of just a few states to allow judges to impose the death penalty even over the objections of the jury, a practice frowned upon by the Supreme Court. Judges did exactly that in 11 of the cases you defended as state attorney general. Do you still support that policy? If so, why let juries weigh in at all? Do you think a judge should be permitted to overrule if a jury opts for death?

• Donald Trump has made some noise about “opening up” the libel laws so that he can more easily sue media publications that criticize him. Do you think the libel laws should be changed as they apply to public figures?

• Some fear that Trump will attempt to use the power of his office to censor people who criticize or ridicule him. Do you believe Americans have an absolute right to criticize or ridicule public officials, including the president? Is there any scenario under which you’d consider it justifiable to arrest or prosecute someone for criticizing or mocking the president?

• What about arresting journalists more generally? Are there any circumstances under which you think the government would be justified in arresting a reporter or editor for something they published? If your answer is yes, please cite some real-world examples in which you believe a reporter or publisher could have been arrested and criminally charged.

• You said this in 2007: “The civil libertarians among us would rather defend the constitution than protect our nation’s security.” Do you believe these two things are incompatible? If sworn in as attorney general, you’ll take an oath to defend and uphold the Constitution. Let’s say that once in office, you’re faced with a situation in which you believe it is necessary to violate the Constitution in order to protect national security. Let’s say that the actions you think you need to take aren’t constitutionally ambiguous — you yourself believe they’re unconstitutional. What would you do?

• Since elected to the Senate, you’ve been a stalwart opponent of most (but not all) criminal-justice reform bills that have come through Congress, including those sponsored by several members of your own party. Do you think the criminal-justice system as it operates to today is acceptable? Are there any problems with it that you think need to be fixed?

You recently said that President Obama’s use of the president’s power to commute sentences has been an abuse of “executive power in an unprecedented, reckless manner.” Under what circumstances do you think a president should use his pardon and commutations powers?

• When you were a U.S. attorney, 40 percent of your prosecutions were drug-related, twice the rate of other federal prosecutors in Alabama. The Obama administration has de-prioritized drug enforcement, particularly for low-level offenses. If you’re confirmed to be attorney general, will you again make drug enforcement a priority at the Justice Department?

You’re a strong advocate for civil asset forfeiture, the policy that allows police agencies to confiscate and keep any property they suspect is tied to criminal activity, even if the owner of the property is never criminally charged. It’s a policy many in your own party oppose, as well as the Heritage Foundation, Grover Norquist, and according to one poll, 84 percent of the public. You’re also a strong supporter of property rights. Can you reconcile your support for property rights with your support for allowing law enforcement to take property without ever having to prove in court that the owner did anything wrong?

• You’re also a strong advocate of “states’ rights,” or federalism. Many states whose legislatures don’t share your view of civil asset forfeiture have passed laws to restrict or even end the practice. The federal government responded with its “equitable sharing” program, which allows police agencies in such states to call up a federal law enforcement agency such as the Drug Enforcement Administration when they want to confiscate some property. The investigation is then considered “federal,” which means it’s controlled by federal forfeiture laws, not the more restrictive state laws. This would seem to be a direct infringement on the intent of those states’ legislatures, wouldn’t you agree? The Obama administration has tried to limit the practice, though it hasn’t ended it. Would you repeal the Obama reforms to equitable sharing, strengthen them or end them?

• Speaking of federalism, you also have some strong feelings about marijuana legalization. You recently said that “good people don’t smoke marijuana” and that the drug is “already causing a disturbance in the states that have made it legal.” You’ve been critical of Obama and his Justice Department for not cracking down on the states that have legalized the drug. Can you point to any data from Colorado or Washington that demonstrates a “disturbance?”

• Also on the topic of federalism, the George W. Bush administration was criticized for aggressively seeking the death penalty in federal cases in states that have banned capital punishment, and where public support for it is low. That seems to at least be a violation of the spirit of federalism. Would local feelings about capital punishment be a factor when your Justice Department considers whether to seek the death penalty in a federal case?

• You’ve been highly critical of the Obama administration for refusing to defend the Defense of Marriage Act in court. Do you think the Justice Department is obligated to always defend federal laws in court, even if the president or attorney general believes the law is unconstitutional? Can you think of any current or preexisting federal laws that you’d be reluctant to defend? If presented with such a challenge, what would you do as attorney general?

• Currently, eight states have legalized marijuana for recreational use. As attorney general, there are a number of ways you could try to assert federal law in those states, from targeting banks and financial institutions that work with marijuana-related businesses to a full-on crackdown by federal law enforcement, or even the National Guard. Do you plan to fight legalization in those states? If so, how do you plan to do it?

• During the campaign, Donald Trump signed a pledge put out by an advocacy group that suggested he may try to crack down on pornography. Leaving aside the issue of child pornography, which is obviously a crime worth pursuing, do you think using obscenity laws to prosecute pornography involving consenting adults is a good use of government resources?

You said in 2009 that you oppose federal hate-crimes laws because they “focus on the perception of what someone might have been thinking when they committed the crime,” they “violate the basic principle of equal justice under the law” by affording special protections to favored groups, and they’re an unconstitutional application of federal power. Yet in 2015, you sponsored the Thin Blue Line Act, which would make anyone who kills a law enforcement officer eligible for the death penalty. That’s already the case for federal law enforcement. Your bill extended the federal law to state and local police officers. Other than adding protections to a different group of people, how was your bill substantively different from the hate-crimes laws you oppose?

• You’ve been a vocal supporter of even the more controversial portions of the Patriot Act. We’ve learned in recent years that though the law was sold to the public as a necessary weapon to fight terrorism, many of the more objectionable powers it grants to government have primarily been used in routine criminal investigations that have nothing to do with national security, such as drug crimes. Are you at all concerned that surveillance powers ostensibly reserved for terrorism cases are now routinely used for conventional law enforcement?

• In 2016, you said on Laura Ingraham’s radio show, “We are on a radical path. In a few years, we will have the highest percentage of non-native-born Americans ever. And it will increase every year thereafter.” Is there anything inherently wrong with an increasing number of non-native-born Americans living in the United States.? If so, what troubles you about it?

• You’ve been broadly critical of federal civil rights investigations into voter fraud, police brutality and other allegations of abuse by state officials, characterizing them as an unconstitutional expansion of federal power. But in 1999, you asked the Clinton administration to investigate a First Amendment advocacy group for actions that you claimed violated the rights of churches and religious organizations. Could you explain the apparent discrepancy?

• Do you believe that the 14th Amendment allows the federal government to intervene when a state or local government is violating the rights of its citizens? Do you believe the amendment compels federal intervention? Can you name any real-world examples in which you thought such federal intervention was necessary?

• In 1998, you told the Associated Press that the late segregationist George Wallace was “a person who challenged the liberal elite in America.” The context of your statement implies you think he “challenged the liberal elite” in a good way. Is that an accurate characterization of what you said? If so, what specific things did Wallace do that you think were productive challenges to the liberal elite?

• The United States has recently begun enforcing its laws overseas, even against non-citizens who reside in countries where the acts for which they’re being prosecuted are legal. See, for example, George W. Bush-era prosecution of online poker executives, or the prosecution of overseas executives for violating U.S. corporate laws. Critics worry that this could subject U.S. citizens to prosecution for things that aren’t illegal in America. Do you share those concerns?

• Recently, several right-of-center groups have lamented the erosion of mens rea, or the requirement that in order to convict someone for breaking the law, the government should have to prove criminal intent — in some cases, it isn’t even clear that the defendant knew about the law. Do you support the efforts to reform these laws?

• Most of the concern from conservatives in this area centers around regulation and white-collar crime. But policies such as the felony murder doctrine, or prosecuting drug offenders for distribution based solely on the quantity of drugs in their possession, also don’t require the state to prove criminal intent. Would you also support reforming those laws?

• When the Justice Department finds that a police agency has engaged in systematic violations of constitutional rights, it either takes that agency to court, or negotiates a “consent decree” with the agency. Consent decrees are agreements between the Justice Department and these agencies (or the state or municipality that oversees them) to implement reforms to address the aforementioned abuses. Studies have shown that they’re marginally effective, in part because the Justice Department lacks the ability to adequately enforce them. Yet you have called consent decrees “one of the most dangerous, and rarely discussed, exercises of raw power.” In the forward for a think-tank report, you called consent decrees “an end run around the democratic process.” Do you still believe this? Are these negotiated agreements really more dangerous than the police abuses they’re trying to address?

• As a longtime supporter of law enforcement, you’ve criticized not only consent decrees but also Justice Department investigations into police abuses in places such as Baltimore, Cleveland and Ferguson, Mo. Those reports documented a wide range of abusive practices in those cities and shed light on wholesale constitutional and civil rights violations that have been going on for years. Is your contention that the reports are inaccurate? Or is your contention that we’re better off not knowing about these practices?

• The Obama administration’s Civil Rights Division was responsible for most of those investigations. Do you plan to tell that office to stop conducting investigations into abusive practices by police agencies? What will you tell it to prioritize?

• Over the past several years, several scientific bodies have released reports that have been highly critical of the way forensic science is used in U.S. courts, including the National Academy of Sciences and the President’s Council of Advisors on Science and Technology. Attorney General Loretta Lynch has largely dismissed these reports, insisting that the Justice Department has internal policies to ensure that federal law enforcement officials use only forensics that are backed by sound science. But the FBI has a long and troubled history of utilizing bad forensics, including its recent admission that its hair fiber analysts had given inaccurate testimony in thousands of cases, and trained state and local analysts in methods that tainted thousands more. Are you confident in the way forensic science is used in American courtrooms? Is this an issue you plan to look into at the Justice Department?