The terrible things Jeff Sessions did as attorney general of Alabama.

Jeff Sessions Did Terrible Things in Alabama. The Senate Needs to Ask Him About Them.

Jeff Sessions Did Terrible Things in Alabama. The Senate Needs to Ask Him About Them.

The law, lawyers, and the court.
Jan. 9 2017 10:51 AM

Bad Law

A look at the terrible things Jeff Sessions did as attorney general of Alabama.

President-elect Donald Trump greets Senator Jeff Sessions, Trump's picks for attorney general, during a thank you rally in Ladd-Peebles Stadium on December 17, 2016 in Mobile, Alabama.
Sen. Jeff Sessions shakes hands with President-elect Donald Trump during a thank you rally in Ladd-Peebles Stadium on Dec. 17, 2016, in Mobile, Alabama.

Mark Wallheiser/Getty Images

Alabama Sen. Jeff Sessions faces questioning from his colleagues on Tuesday, as the Senate Judiciary Committee holds hearings over his nomination to lead the Justice Department. Most of the opposition to Sessions’ appointment as Donald Trump’s choice for attorney general has centered around the allegations of racism that torpedoed his previous federal appointment. That history is certainly extraordinarily troubling. What should concern his interrogators this week even more, perhaps, is this question: At a time when America most needs an independent, anti-corruption watchdog leading the Justice Department, would Sessions be a rubber stamp for an administration that threatens to be the most corrupt since Warren Harding’s?

For clues, senators should examine Sessions’ record the latest time he served as an attorney general. After all, outside groups defending Sessions point to his two-year tenure as Alabama attorney general as a reason he should be confirmed. Look at that record closely, though, and you’ll find a legal officer with an atrocious record of holding allies, political and otherwise, accountable to the Constitution, to the law, or to basic ethical standards.

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In addition to his fervent loyalty to Trump during the campaign, there are several pieces of evidence from his time as Alabama attorney general that indicate Sessions would act as a rubber stamp for potential acts of executive corruption. As detailed in this new examination of archived news reports and original source documents, at least twice during his mere two years in office, Sessions produced legally flawed opinions that were favorable to Alabama Gov. Fob James that also, conveniently, aligned with the interests of one of Alabama’s most politically powerful and deep-pocketed organizations. That organization also happened to have spent substantial sums on, and taken credit for, electing James and Sessions to office.

Years later, Sessions’ legal reasoning in these opinions was overruled by broad majorities of the Alabama Supreme Court—including in one ruling written by a Republican justice.

Sessions’ brief, troubling record doesn’t end there. As a state attorney general, he also cleared the way for a politically connected insurance company’s planned no-bid coverage of state road work; urged the Alabama Ethics Commission to approve corporate-funded junkets for state employees; fought successfully against seating the first black intermediate appellate court judges in Alabama’s history; and, no joke, provided formal support for a local sheriff’s use of actual chain gangs.

In short, Sessions’ failure to stand up to higher-ranking and other GOP officials who were willing to act in legally or ethically questionable ways is deeply disturbing when viewed through the lens of a Trump presidency.

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For example, in 1996, Gov. James appointed two men linked to the Alfa Insurance Co. to the Auburn University board of trustees. One problem: There were already people in those two seats, and according to the Alabama Constitution, James needed Senate confirmation of his appointees before the other two trustees could be removed. Sessions issued a legal opinion saying he didn’t.

Another problem: Alabama politics in the 1990s were dominated by a handful of corporate interests, perhaps the largest of which was Alfa. Alfa helped fund the successful 1994 campaigns of James and Sessions, spending nearly $150,000 on James and $73,000 on Sessions. Alfa’s then–chief executive officer took credit for their victories, saying, “We got Fob James. I feel like we did. We got Jeff Sessions.” Sessions himself said, “Without Alfa’s support, I could not have run.”

One of James’ two appointees to the Auburn board of trustees was Phil Richardson, then-executive vice president of Alfa Insurance Co. The other James appointee was also reported to be “aligned closely with Alfa.” Reports revealed that days before James made his appointments, Richardson had given Sessions a $1,000 contribution. The day after James made his appointments, Sessions returned that money.

Months after Sessions had taken office in the Senate, the Alabama Supreme Court reinstated the ousted Auburn trustees and ruled against Gov. James’ appointments, rejecting the reasoning of Sessions’ original legal opinion by a vote of 6–2 in a ruling written by Republican Justice Gorman Houston.

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That’s not the only troubling example. In 1994, three black Alabama voters filed a lawsuit challenging the way appeals court–level judges were chosen in Alabama. These judges were elected at-large rather than in districts, and almost no black judges made it to the bench on the state’s highest courts. Eventually, a complex agreement was hammered out between the challengers and the state of Alabama, and approved by U.S. District Judge Myron Thompson. If carried out, the settlement would have appointed black judges to the state’s intermediate courts of appeal for the first time in the history of Alabama, in addition to increasing black presence on the state Supreme Court. (There was only one black state Supreme Court justice at the time.)

During his 1994 attorney general campaign, however, Sessions led a relentless Republican attack on this plan, labeling it a “racial quota” that violated “a constitutional requirement that judges be elected.”

Sessions ultimately succeeded in killing the settlement in the U.S. Court of Appeals for the 11th Circuit before a panel of three Republican-appointed judges. Ironically—now that the racial bias lawsuit was dead, and following months of saying that Alabama judges had to be elected—Sessions was asked by Gov. James whether the judgeships at issue “should be appointed.” Sessions delivered his opinion that indeed James could appoint judges to the open seats after all. Armed with that opinion, that’s what James did. Today—just as when the initial anti-bias litigation was filed in 1994—Alabama still has never had a black judge serve on its Criminal or Civil Courts of Appeal, while no black judges currently serve on the Alabama Supreme Court.

One final example: In 1995, Alabama Prison Commissioner Ron Jones  announced his plan to revive the use of chain gangs in the state prison system. “With leg shackles, we can put higher-risk inmates to work,” Jones said. The Alabama NAACP responded that chain gangs “will take us backward in time in terms of racial image and relations for all black men.” James denied this charge, saying, “The idea of inmates having to work has nothing to do with race at all.” When he was asked if the sight of black people back working in chains would give the state a black eye, James responded, “Of course not.”

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For his part, speaking at a banquet where he announced his intention to run for the U.S. Senate, Sessions endorsed the chain gang proposal and promised to “aggressively defend any legal challenge against it.” Sessions went on to say, “I believe it’s constitutional and proper … and I don’t think it’s hurt the state’s image at all.” One month after his election to the U.S. Senate, in one of his final acts as attorney general, Sessions issued an opinion to Marshall County Sheriff “Mac” Holcomb providing formal legal support for the sheriff’s desire to use chain gangs, as long as they were “voluntary.” Years later, an Alabama inmate—who was chained for hours to a hitching post as punishment for fighting while forced to work on a chain gang—won his case at the U.S. Supreme Court, which found such punishment unconstitutional.

In a matter of weeks, the same party will control both elected branches of our national government. The attributes of independence, ethical fortitude, and the will to enforce the law against political friends will be essential to the next U.S. attorney general. Sessions’ record shows precious little of any of these.

In fact, the record shows that too many times in Alabama, Jeff Sessions failed his own test: “The attorney general has got to say no to the president if he wants to do something, just like a good corporate lawyer has to tell the CEO sometimes, ‘We can’t do it that way, Mr. CEO.’ ” Well, what if President Trump gives the order to ban Muslims from entering the country? Will Sessions say yes or no? If Trump is accused again of grabbing a woman “by the pussy” without consent, will Sessions call it sexual assault or not? If Trump continues to refuse to divest from his businesses to avoid violating the Constitution’s Emoluments Clauses, will Sessions hold him accountable or give him a pass?

For an America about to live under its first CEO President—one whose administration has the serious potential to be the most corrupt in nearly 100 years—a rubber-stamp loyalist like Jeff Sessions is the last person the Senate ought to approve for the critical job of U.S. attorney general.

Elizabeth Wydra is president of the Constitutional Accountability Center.