All week, people have been making jokes on social media about how horrified they are to find themselves rooting for Jeff Sessions. With Sessions being publicly taunted and humiliated by Donald Trump every day in the press and on Twitter, even those who stand against everything he represents seem to be feeling protective of the attorney general. For many progressives, it’s a disorienting stance: Even as they condemn Sessions for all the policies he’s pursued as the nation’s most powerful law enforcement official—on immigration, on police reform, on prison sentencing—they’ve been put in the awkward position of hoping he keeps his job.
“There’s no question that the attorney general has been a very detrimental force to civil rights progress and has undermined civil rights for so many communities even in the short time he’s been attorney general,” said Vanita Gupta, the former head of the Civil Rights Division and the president of the Leadership Conference on Civil and Human Rights. “[But] I think it is really alarming that a president is attacking the Justice Department’s independence and its institutional mandate to ensure that no one is above the law.” Gupta called Trump’s attacks on Sessions and DOJ “a move toward autocracy,” adding that while no one in the civil rights community is “championing” the attorney general, there’s a sense that something fundamental is at stake here. “I think the concern for civil rights advocates is the way in which this fundamentally undermines the rule of law.”
Jonathan Smith, a civil rights attorney who spent four years working on police reform in the Obama Justice Department, took a similar position, telling me that in the absence of any good options, making sure Trump isn’t allowed to overpower DOJ is of paramount importance. “The attorney general should go, but not at the price of placing Trump above the law,” he said in an email. “The nation faces a terrible Hobson’s choice, and Trump is a threat to the democracy.”
“I am not a Sessions fan (of course) but I find myself rooting for him to stay the course,” said Richard Ugelow, an employment rights specialist who served in the Civil Rights Division for almost 30 years before leaving in 2004. “The integrity and independence of DOJ is at issue.”
This point of view makes intuitive sense to me. By making it clear that his anger at Sessions is almost entirely rooted in the attorney general’s decision to give up oversight of the FBI’s Russia investigation, Trump has effectively promised that he’d try to replace Sessions with someone more obedient. Rudy Giuliani? Ted Cruz? A guy named John Huber from Utah? Whoever got the job, it seems obvious that this person would be tasked with making it easier for Trump to get rid of special counsel Robert Mueller and generally put the Justice Department under White House control. Under such extraordinary circumstances, rooting for Sessions feels like rooting for the rule of law and the continued independence of the Justice Department.
On Tuesday, some alumni of the department told me that this is nonsense. Sessions remains a villain, they said, and whatever the causes and consequences of his departure, it would be better if he wasn’t the attorney general anymore.
“I don’t hope for one second that Jeff Sessions stays in his job,” said University of Michigan Law School professor Sam Bagenstos, who began his career at DOJ in 1994 and later served as a political appointee under Obama. “If Trump fires Sessions in an effort to interfere with Mueller’s investigation, that will be an abuse of power that I will criticize. And I will do what little I can effectively do to oppose Sessions’ replacement with someone who seems likely to abuse the power of the office. But I don’t see how any of that would make me hope that Sessions stays.”
Bagenstos argued that the premise that Sessions can be expected to protect the DOJ’s independence is incorrect. Sure, he recused himself from the Russia investigation, but he did that only because he was legally required to, and there’s no reason to interpret it as a sign that Sessions will stand up for the DOJ in the future. Matthew Miller, an Obama-era spokesman for the DOJ, echoed this point: Sessions already demonstrated his lack of independence, Miller said, when he signed off on James Comey’s firing in May, and he confirmed his status as a yes-man by staying silent in the face of Trump’s outrageous tweets about the DOJ being weak on Hillary Clinton.
“He has refused to stand up and defend the department against the vicious assaults on it by the president,” Miller told me in an email. He added, “Sessions should be out publicly telling the president to back off—to stop trying to meddle in DOJ’s investigations—and if he’s not willing to do that, he might as well leave.”
Several former DOJ officials, including Bagenstos and his one-time Civil Rights Division colleague Roy L. Austin, suggested that I shouldn’t overthink the question of whether the country is better or worse off with Sessions as AG. What ought to matter most is his agenda, they said, and the fact that he has already made tremendous progress toward fulfilling it is reason enough to want him out.
“He has just done so much other damage to DOJ that I don’t want to see him there anymore and it does not particularly matter to me how he leaves,” Austin said in an email. “Pretty much everything about this president’s Cabinet picks has been a disaster, so it is not like the next pick could be much worse … and I will hold out some hope for a little better.”
Bagenstos framed Sessions’ potential departure as urgent harm reduction. “Sessions is actively doing a lot of harm right now, on vote suppression, on civil rights generally, on drug and forfeiture policy,” he said. “He is as extreme an appointee as one can imagine on these issues. And that has to weigh in the calculus here.”
Is there really any chance that after ousting one extremist, the Trump administration would bring in someone less extreme? The answer is we don’t know, but one thing that can be said about Sessions six months into this presidency is that he has made extremely quick work of advancing his policy goals. As an arch-right attorney general who has been described as the president’s ideological twin, Sessions has demonstrated a tremendous aptitude for the work of policymaking in the Trump era. It’s possible that Sessions’ successor would lack that aptitude and be less effective at making Trump’s dreams come true.
It’s also possible that Sessions’ replacement would be less ideological than he is, a former DOJ official told me, speaking on the condition of anonymity. “I think his departure will lift a significant barrier from the administration that will allow it to eventually take more moderate tones on a host of issues,” the official said. “This particular individual is such a roadblock to anything positive going on. That is why Breitbart is siding with Sessions over Trump.”
These are thought-provoking arguments. It seems at least possible that 1) with Sessions out of the picture, Trump’s ability to do bad things would be crippled because he’d be forced to operate without his most effective lieutenant; and 2) Sessions is the last guy anyone should count on to protect the DOJ’s independence.
And yet, for many people—myself included—a scenario in which Sessions gets fired or resigns feels somehow more dangerous and dislocating than the alternative. Why? Because if Sessions were to leave now under pressure from Trump, it could end up proving that this president really can do whatever he wants, up to and including taming the Department of Justice. It would be yet another test for elected officials who have so far failed all of them: If it happens and there’s no more reaction from Congress than there was after the Comey firing, it would feel like decisive evidence that nothing will ever change. Trump would be in good shape, autocracy-wise, if firing his attorney general for failing to protect him from the FBI doesn’t cross a “red line” for law-and-order conservatives on Capitol Hill.
No one knows exactly what would happen if Trump fires Sessions or the attorney general resigns. But the mere fact of it happening would demonstrate that Trump is able and willing to do a lot more than just talk about bringing the DOJ to heel. This is a scary thought.
“While Sessions’ replacement would probably be less conservative, that’s not what matters now,” said Eric Columbus, who served in the deputy attorney general’s office from 2009 to 2014. “Trump wants to fire Sessions because Sessions upheld the rule of law. That alone is reason to hope Sessions sticks it out. Quitting would … set a dangerous precedent for the next time an official ponders whether following the law is worth the cost of enraging Trump.”
Columbus continued, “During the campaign I found myself nodding in bewildered agreement with principled conservatives who bucked Trump. I never expected Sessions would join that crowd, but here we are.”