By Van Newkirk, II
The Atlantic, June 18, 2018 —
Across immigration, policing, criminal justice, and voting rights, the attorney general is pushing an agenda that could erase many of the legal gains of modern America’s defining movement.
The fires on the streets of Ferguson, Missouri, had barely stopped burning when the Department of Justice released an extraordinary report on the city’s police department. In the findings of the 2015 investigation of the Ferguson Police Department, the DOJ’s Civil Rights Division detailed how a municipality had built its social contract on a slow-rolling racist heist. Activists hoped that the Ferguson report—which was prompted by the 2014 police killing of an unarmed black teenager and found that police conduct had “severely damaged the relationship between African Americans and the Ferguson Police Department”—would not only change the city, but would signal that the United States was finally willing to confront the legacy of white supremacy. The Ferguson City Council reluctantly agreed to a consent decree with the DOJ that would overhaul city policing. Federal courts rejected voter-suppression schemes and reaffirmed affirmative action. Movements from Black Lives Matter to LGBTQ advocacy saw an opportunity to broaden the national civil-rights agenda.
Then Jefferson Beauregard Sessions III took over.
More than a year has elapsed since Sessions, formerly a senator from Alabama, was appointed U.S. attorney general by President Donald Trump. For the Trump administration, much of the last 18 months has been spent fighting the fires of one scandal after the next, and watching as the sprawling investigation into Russian interference in the 2016 election—led by Sessions’s own department—has threatened to consume Washington. In that particular drama, the president and his attorney general have clashed. Trump has openly insulted Sessions, claiming that Sessions took a “weak position” on investigating intelligence leaks, and saying that he “would have quickly picked someone else” had he known how Sessions would handle the Russia investigation.
. . . the Sessions Doctrine is the endgame of a long legal tradition of undermining minority civil rights.
But behind the scenes, even as the president has agitated in public about firing his attorney general, Sessions is the true architect of much of what people believe to be Trump’s domestic-policy agenda. As implemented in recent decisions to curtail asylum grants, ramp up immigration enforcement, and dial back criminal-justice reform and voting-rights protections, this agenda is more than just the reversal of policies enacted during the Barack Obama era, which Trump promised during his campaign. Rather, from the Black Belt in Alabama in the 1980s to the farthest reaches of the border fence today, the Sessions Doctrine is the endgame of a long legal tradition of undermining minority civil rights.
The Sessions Doctrine has moved somewhat suddenly to the forefront of the national conversation in the wake of aggressive moves by the Justice Department against immigration. Sessions has recently pushed for changes in the Executive Office for Immigration Review (EOIR), the immigration-court system embedded within the DOJ. He’s considering ways to force judges to process more deportation cases, changes that several experts say will undoubtedly mean that fewer people receive due process or fair hearings.
That justification—like several other pieces of immigration and asylum policy—is merely a continuance of Obama-era decisions, but the request from the current board to reconsider her protection from deportation is another sign of a shift toward a stark black-and-white view of immigration, and a much more powerful deportation engine. Sessions successfully pushed Trump to end the Obama “catch and release” policy, under which unverified immigrants arrested in the immigration dragnet were let go before trial, and has enforced the “zero tolerance” policy in its place, one detaining all arrested immigrants pending trial. He’s instructed U.S. Attorneys to prioritize prosecuting first-time offenders among undocumented immigrants, and last week cited the Bible in defending the decision to separate mothers and children at the border, telling critics “to obey the laws of the government because God has ordained them for the purpose of order.”
When reached by email, a DOJ spokesperson said of the department’s immigration efforts: “In an effort to combat years of neglect and a lack of leadership in the immigration court system, the Justice Department has implemented a number of common-sense reforms designed to reduce the backlog without compromising due process.”
For Paul W. Schmidt, former chairman of EOIR’s Board of Immigration Appeals from 1995 to 2001 and a former EOIR immigration judge, the immigration system has always been vulnerable to naked political plays by the attorney general, but Sessions has so far been the boldest in making such plays. EOIR is “a division of the Justice Department, which is ridiculous,” he says.
“You have a biased attorney general who’s jamming more cases into the system, and he reaches down and pulls out individual decisions he doesn’t like—a lot of them relating to asylum-seekers, women, and vulnerable groups—so he can rewrite the law to fit his white-nationalist agenda. It’s basically a kangaroo court.”
Sessions’s immigration agenda extends well beyond his tightening grip over immigration courts and asylum boards. Even in the framework of the Justice Department’s new opioid policy, Sessions made clear he believed that so-called sanctuary cities and unverified immigrants had essentially imported the opioid problem into the U.S. In retaliation for such cities’ continued refusal to enforce strict federal immigration detentions and referrals, Sessions has fought to strip them of certain avenues of federal-grant funding. Under his guidance, the DOJ’s current top civil-rights lawyer has fought to add a controversial citizenship question to the 2020 census, a change that many immigration advocates and researchers believe will make unverified immigrants more vulnerable to raids and reduce response rates among all immigrants, and in the process punish population centers where immigrants are heavily represented.
According to Schmidt, the recent moves on immigration reflect a broader set of priorities that share several common threads. “He’s abandoned prison reform,” Schmidt says.
“He’s favoring gerrymandering and other ways of cutting down minority voters. He’s cut protections for LGBT people. Foreign nationals are at the top of his hit list, but basically all vulnerable minorities and people of color are somewhere on his hit list.”
The attorney general didn’t waste any time in making his priorities clear. Upon taking up his office in the Robert F. Kennedy building, just 12 days after his confirmation and swearing in, Sessions issued the first of many memos that would roll back the Obama administration’s criminal-justice priorities. On February 21, 2017, the DOJ rescinded a memo from the previous fall that had pledged to wind down the federal government’s contracts with private prisons. Following years of pressure from criminal-justice advocates, and reporting that outlined massive racial disparities, rampant abuse—especially of immigrants—and administrative inefficiencies in federal private prisons, the 2016 decision rested on a review from the Office of the Inspector General, which found that “contract prisons incurred more safety and security incidents per capita than comparable [Federal Bureau of Prisons] institutions.”
In rescinding former Deputy Attorney General Sally Yates’s private-prison memo, Sessions did not mention the OIG’s report, or any of the allegations of brutality and misconduct in private prisons. He merely stated that the policy “impaired the Bureau’s ability to meet the future needs of the federal correctional system.”
With that, the DOJ set the course for an approach to law-and-order that relied more heavily on incarceration, one that pays little attention to data and statistics, and even less attention to the voices of the communities most in need.
In one of his first prepared remarks as attorney general, Sessions outlined his doctrine as such:
Rather than dictating to local police how to do their jobs – or spending scarce federal resources to sue them in court – we should use our money, research and expertise to help them figure out what is happening and determine the best ways to fight crime.
We need to resist the temptation to ignore or downplay this crisis and instead tackle it head-on, to ensure justice and safety for all Americans. We need to enforce our laws and put bad men behind bars. And we need to support the brave men and women of law enforcement as they work day and night to protect us.
But Sessions “has definitely been a force for a regressive approach to criminal justice,” says Inimai Chettiar, the director of the justice program at the Brennan Center for Justice. “Since the day he set foot in office, he has one by one repealed the vast majority of items put forward by the Obama administration to advance reforms, not only in policing but with prosecutors and private prisons.”
According to Vanita Gupta, the president and CEO of the Leadership Conference on Civil and Human Rights, and the head of the DOJ’s Civil Rights Division from 2014 to 2017, the pace and extent of retrenchment under the first year of Sessions’s tenure have been extraordinary. “This DOJ and Jeff Sessions are rolling back civil-rights progress and undermining fundamental American values of equality and justice in a fairly unprecedented manner,” Gupta told me. “Across every issue, from criminal-justice reform to voting rights to LGBTQ rights, the attorney general is advancing a vision of America that is narrow, and abdicating some of the Justice Department’s core responsibilities and mandate to ensure equal rights and access to justice for all.”
The Trump administration sees the Trump Doctrine as a negation of the Obama presidency, as Jeffrey Goldberg, The Atlantic’s editor in chief, reported, or perhaps more crassly, as “the ‘Fuck Obama’ Doctrine.”
This portrayal of the current executive line as a hindbrain-level reaction to even the slightest whiff of the White House’s previous occupant makes sense, and is probably the only way to consistently interpret Trump’s wildly impulsive policy gesticulation. But just as Obama himself is tied to a deeper tradition of racial discourse and civil rights in this country, so is his backlash.
The history of voting rights and desegregation in America over the past 50 years—from the civil-rights movement through the Supreme Court’s 2013 Shelby County v. Holder decision, which gutted a key provision of the Voting Rights Act—might be told well by the story of Alabama alone. It is a story in which Sessions’s own career is rooted, and one in which he’s played a central role over the past few decades.
Sessions was only a teenager in 1963, when Governor George Wallace stood in the schoolhouse door at the University of Alabama. To keep his promise to resist the integration of schools in the state, Wallace took things into his own hands, personally obstructing the federally mandated enrollment of two black students, Vivian Malone and James Hood. With his largely symbolic action, Wallace firmly cemented himself as a champion of “massive resistance,” a scorched-earth policy of state and local pushback against federally enforced civil-rights protections. Massive resistance had begun in Virginia after the 1954 Brown v. Board of Education decision, and spread through the South. Through Wallace, it became the official policy platform of the entire state of Alabama.
Arrayed against Wallace’s resistance was the Justice Department, including its relatively new Civil Rights Division. President John F. Kennedy, Attorney General Robert Kennedy, and Deputy Attorney General Nicholas Katzenbach engaged in an intricate dance with Wallace, including the famed confrontation between Katzenbach and Wallace outside the door frame of the university, after which—facing an intervention by the National Guard—Wallace stood down.
The crucial role of the Civil Rights Division in defusing the situation in Alabama, and the growing and changing mandate of the department as a whole, is often overlooked. The 1963 incident came after years of similar resistance from southern states to integration. Assistant Attorney General Burke Marshall oversaw much of the federal response, and developed a standard doctrine for dealing with education-related intransigence to integration. The approach had been solidified a year before Wallace’s big stand, during a lethal series of riots at Ole Miss over the attempt by James Meredith, a black student and activist, to integrate. Meredith was successfully able to attend the school with the help of an armed intervention by the National Guard, a moment made possible by black activists, the White House, white state officials, and, most notably, Marshall and the Civil Rights Division.
These incidents changed the nature of the modern relationship between state and federal governments, and established the role of the Justice Department in securing civil rights. The theory of massive resistance was based in provocation, forcing the federal government to flex muscles—such as the potential mobilization of troops—that it had been loathe to use against state governments for almost a century. In Mississippi and Alabama, however, the Kennedys, Katzenbach, and Marshall put that option back on the table to defend the civil rights of former second-class citizens, and in doing so, recast the DOJ as a powerful ally for the aggrieved. In a sense, the biggest new advantage of the 1960s civil-rights movement compared with previous eras was the presence of federal leadership in the form of the DOJ, and a willingness by the attorney general and other top officials to use the full extent of the department’s power. As Marshall said in a 1985 interview, “The use of federal force is a last resort was our policy and I still think it was a proper policy.”
As the federal government’s role in civil rights evolved, state obstruction grew more sophisticated. Faced with automatic scrutiny of new voting laws from the DOJ and courts, southern leaders nevertheless pushed ahead with schemes such as at-large voting plans, integration-busting private schools, and school-district secessions that in the aggregate helped maintain de facto segregation. Alabama was once again on the front line.
The state that had served as ground zero for much of the struggle over black voting rights during the civil-rights movement was also—predictably—the theater for the long guerrilla war against the Voting Rights Act after its passage, so much so that many of the cases cited most often as precedent on VRA enforcement come from Alabama. As detailed in a report from some of Alabama’s most iconic civil-rights litigators, “Between the 1965 enactment of the Voting Rights Act and the 1982 reauthorization … the Department of Justice objected fifty-nine times,” to new elections laws that the state had to submit to federal scrutiny.. “In addition,” the litigators wrote, “the Department of Justice sent observers to Alabama jurisdictions 107 times during the same period.”
Into that fray stepped Jeff Sessions, a lawyer from Selma who rose through the ranks in the Southern District of Alabama. In 1985, as a U.S. attorney for the Southern District, Sessions chose to pursue a voter-fraud investigation against three black organizers in Alabama’s Black Belt, including one former aide to Martin Luther King Jr., Al Turner. The case, built on allegations of tampering with absentee ballots, didn’t net any convictions, but inflamed the still-raw wounds left after Jim Crow. Sessions faced accusations that his investigation was racist, that he ignored similarly clever absentee schemes that had been used by whites for decades, and that federal attorneys used intimidating tactics that could easily chill black political participation over what seemed to be minor discrepancies.
Sessions and the DOJ defended his prosecution with the charge that he’d actually protected the voting rights of black belt citizens against three potential fraudsters. Sessions always maintained that he should’ve won the case. “I guarantee you there was sufficient evidence for a conviction,” he said after the trial.
Still, the prosecution that Turner described as a “witch hunt” made enemies of none other than Coretta Scott King, the civil-rights activist and widow of Martin Luther King Jr., who submitted a letter opposing Sessions’s 1986 nomination to the judgeship of the court for which he served as attorney.
[Coretta] Scott King wrote: I urge you to consider carefully Mr. Sessions’ conduct in these matters. Such a review, I believe, raises serious questions about his commitment to the protection of the voting rights of all American citizens and consequently his fair and unbiased judgment regarding this fundamental right. When the circumstances and facts surrounding the indictments of Al Turner, his wife, Evelyn, and Spencer Hogue are analyzed, it becomes clear that the motivation was political, and the result frightening—the wide-scale chill of the exercise of the ballot for blacks, who suffered so much to receive that right in the first place.
The nomination failed. But Sessions’s career continued apace. As the state’s attorney general, he pushed an expansive capital-punishment agenda, fighting to execute some intellectually disabled people. In an appeals court, he successfully argued in favor of the death penalty for a black defendant whose conviction had come after a trial during which a prosecutor rebutted the defense’s insanity case by arguing that “this is not another case of niggeritous.” Sessions supported a failed bill to execute people who received two or more serious drug offenses. And as a ProPublica investigation chronicles, while the state attorney general, Sessions also fought a long legal battle against a court order seeking to equalize funding for Alabama’s still-segregated schools.
Sessions has professed a long career of ameliorating the injustices of Alabama’s herrenvolk regime. “I deeply understand the history of civil rights and the horrendous impact that relentless and systemic discrimination and the denial of voting rights has had on our African-American brothers and sisters. I have witnessed it,” he told the Senate last January.
But the historical record often places his work in conflict with those of civil-rights activists and federal watchdogs. As he told the Montgomery Advertiser in 1995 after becoming Alabama Attorney General, his agenda was to “defend the state aggressively” in what the paper calls “certain types of lawsuits”—namely federal civil-rights cases. After 12 years as the main federal prosecutor in the state, two years as the state’s attorney general, and 20 years as a senator, the abysmal racial disparities in Alabama persist, and racially disparate disenfranchisement laws remained on the books even in 2017.
Attorney General Jeff Sessions has rolled back the policies of his predecessors, Eric Holder and Loretta Lynch.
While Barack Obama’s civil-rights and civil-liberties legacy is more than complicated as a result of his foreign-policy and domestic-surveillance records, his Justice Department was built with the heritage of aggressive civil-rights enforcement in mind. Notably, Obama’s first assistant attorney general for the Civil Rights Division, Tom Perez, had worked for years as a federal prosecutor of hate crimes. Perez’s boss at the time, Attorney General Eric Holder, testified twice in favor of anti-hate-crime legislation passed in memory of Matthew Shepard and James Byrd Jr., two men killed in separate hate-related incidents in 1998.
Under Holder and then his successor, Loretta Lynch, the department moved to address some racial disparities and the most punitive federally enforced crime policies. In addition to rolling back private prisons; moving toward more systemic civil-rights enforcement of police departments and brutality; and leveraging that move for arranging consent decrees, court-enforced agreements between a municipality and the DOJ to implement recommendations for improvement; one of the most consequential policies of Holder’s DOJ was the Smart on Crime initiative, which began in early 2013. That initiative was intended to give federal prosecutors more discretion to avoid triggering mandatory minimum sentences for low-level drug offenses. Additionally, DOJ memos dialed back federal marijuana prosecutions where state law had decriminalized or legalized the drug, and the department ended a federal-asset-forfeiture program that in its final year of operation had netted local, state, and federal officials $65 million in cash, homes, and other property—even from some suspects who’d never been charged with a crime.
In his tenure as attorney general, Jeff Sessions has made it a point to end each of these policies. In fact, he has expressed deep suspicion of the very idea of criminal-justice reform, and of any scrutiny of police actions. Instead of the aggressive “patterns and practice” investigations of whole police departments, the DOJ has emphasized “local control and accountability” in its collaborative initiatives. The department has ramped up the surveillance of black activists—even as the ranks of white-supremacist extremism and hate crimes surge—and brought to bear a narrative that crime in America increased under previous reforms. Sessions has led the DOJ away from some of its most expansive voting-rights enforcement, and reinvigorated the War on Drugs. And he has placed undocumented immigration as a major part of the problem in all phases of his criminal-justice, drug, and voting-rights changes.
“The attorney general is advancing a vision of America that is narrow and abdicating some of the Justice Department’s core responsibilities and mandate to ensure equal rights and access to justice for all,” Vanita Gupta said.
The DOJ declined to comment on “ongoing matters” related to criminal-justice reforms and consent decrees.
In a sense, the narrow vision of America bellowed from Trump’s bully pulpit and advanced more incisively through Sessions’s canon of memos is a fulfillment of a promise first made by President Richard Nixon and his Attorney General, John Mitchell, when they married the “southern strategy” with an urban War on Drugs. The union of those platforms creates a paradigm that favors expanding federal enforcement when it comes to crimes in which minorities are often considered perpetrators, but pushes against federal enforcement when civil rights are involved.
Consider one of the FBI’s newest domestic-terrorism classifications, the “black identity extremist,” a designation first created in an August 2017 report from the FBI Domestic Terrorism Analysis Unit, and first made public by Foreign Policy in October. According to The New York Times, the report asserts that “black activists’ grievances about racialized police violence and inequities in the criminal justice system have spurred retaliatory violence against law enforcement officers,” citing sparse incidents of violence against police officers as proof that the Black Lives Matter movement engenders violence.
In his testimony to the Congressional Black Caucus, Brennan Center fellow and former FBI agent Mike German said, “The [black identity extremist] assessment is of such poor analytic quality that it raises serious questions about the FBI’s purpose in producing it.” With no clear, evidence-driven purpose, the report and surveillance had the “potential to incite irrational police fear of black political activists.”
The black-identity-extremist designation was an abstract idea—until it wasn’t. In January, Foreign Policy reported that the home of the Dallas activist Christopher Daniels, known to many as “Rakem Balogun,” had been raided in December by FBI agents, who seized two firearms and a copy of Robert F. Williams’s Negroes With Guns, and arrested him in front of his teenage son. The Guardian has speculated and Balogun himself has stated that he was the first target to be prosecuted using the aforementioned FBI designation. After two years of investigation and five months in FBI custody, Rakem Balogun was let go, the case built on his Facebook posts and protests apparently insufficient to establish that anything he did had actually endangered police.
Even in the realm of voting rights, where the DOJ has most consistently acted as a watchdog against the remnants of Jim Crow, the Sessions Doctrine manages to target people of color instead of protecting them.
The department under Sessions has reversed its position on the gerrymandering and voter-ID cases in which it was an active litigant until 2017. In July 2017, the DOJ shifted its position in the middle of a marathon series of lawsuits over a voter-ID law passed in Texas, which faced a federal lawsuit on the grounds that it discriminates based on race. The department originally served as a plaintiff against the law, but under Sessions submitted a brief supporting a modified form that allowed more kinds of acceptable identification and created an affidavit process for people who don’t have identification because of reasonable impediments.
According to Sherrilyn Ifill, the president and director-counsel of the NAACP Legal Defense Fund—and an active litigant in several voting-rights cases—the Sessions era, while brief, is unprecedented. “Let’s start with voting,” Ifill told me. “The Department of Justice has essentially abandoned that area of civil-rights enforcement, even in the cases in which they were present, such as the Texas voter-ID case, in which we were co-counsel.” Among a civil-rights enforcement ecosystem that has already had to adjust on the fly to the loss of judicial and DOJ preclearance of state- and local-elections laws after the 2013 Shelby County v. Holder decision, the Justice Department’s withdrawal from its voting-rights docket basically creates a massive vacuum, one ripe for exploitation in the 2018 and 2020 election cycles.
Whether Sessions himself will make it to the 2020 or even the 2018 elections is still anyone’s guess. The Russia investigation is ongoing, and every day it chafes a president who could fire Sessions. But the core irony in the acrimony between Trump and his attorney general is that Sessions—more so than just about anyone else in the Trump administration—has faithfully and skillfully executed the president’s policy agenda. He’s doubled down on “tough on crime” policies, sought to punish drug dealers, surveilled fierce critics of police, deflated the bipartisan movement for meaningful criminal-justice reform, supported voter-ID requirements, and used law enforcement and policy to build his own impediments at the border when Trump’s wall couldn’t find support.
Each of those policies, however, doesn’t originate merely in the craw of Trump’s id. They are all seedlings from a well-tended garden of legal and intellectual resistance to the post-civil-rights era in the United States. If Trump’s promise is a return to status quo ante—a land before Black Lives Matter protests and Ferguson reports, one where police are unquestioned heroes and a black presidency is nothing more than a line in a Tupac song—then Jeff Sessions’s doctrine suggests that he represents a return to status quo ante ante, a regime more plainly constructed on the hierarchies and divisions that have for centuries defined America.
The sense among several longtime civil-rights advocates and even former DOJ officials is that many of the signature victories of the civil-rights movement are now more precarious than ever.
“I don’t know that there’s been a time quite like this,” Ifill told me. “Certainly in the modern era, since 1957 when the Civil Rights Division was created, I don’t think that there has been a relationship like this.”
There has never really been a golden age for civil-rights protections. Each of the previous presidential administrations has failed in protecting some group’s rights, or actively violated others’. “But that’s completely different than an abdication of leadership in the civil-rights base entirely, and that’s what we’re facing,” Ifill continued.
Still, the current turn can’t be too surprising for people plugged into the system. Aftershocks from the Supreme Court’s decision to undermine the Voting Rights Act, in Shelby County, continue to disrupt civil-rights enforcement efforts. A class of crusaders against desegregation, in favor of the War on Drugs, and skeptical of an expansive, federally enforced voter-protection agenda has made the conservative movement its home, awaiting leaders at the highest levels of power who could continue on its behalf. This pathway always existed for Sessions, a man who has inherited much, and intends to bequeath more.
Or, as Gupta put it, “it wasn’t a mystery about who Jeff Sessions is and was and what he stood for.”