Published by The Lawfare Institute
in Cooperation With
Whatever one might think of Jeff Sessions’ record as a U.S. Senator, policy priorities as Attorney General, peculiar recollections of his meetings with Russian government representatives as expressed during his recent congressional appearances, or role in the firing of former FBI Director James Comey, there is no denying this: in what will probably go down as the single most important decision of his professional life, he made the right call.
Sessions was right to recuse himself from the Department of Justice investigation into Russian interference in the 2016 election, now led by Special Counsel Robert Mueller. He had been a visible and reliable surrogate for Trump on the campaign, a senior member of the transition team, and, apparently, allowed himself to partake in meetings with Russian government officials that have proved hard for him to explain in a public setting in a meaningful way. But shortly after arriving at the Justice Department for duty, he solicited the advice of the Department’s ethics officials, and, as far as the public record reflects, took that advice. He recused.
The campaign of Donald Trump provided moments that previewed what would become the president’s assault on justice. We need not lay out the history of these statements here; they are on the public record and have been reported on extensively. His repeated calls for the criminal prosecution of his political opponent provided early warning of his views on how justice should be administered and by whom. He articulated a vision of political retribution and abusive prosecution. He said it; he meant it.
Since assuming office, he has continued this assault. He fired Acting Attorney General Sally Yates for refusing to defend in court an order she believed to be illegal (a judgment that, as the Acting Attorney General, was literally her job to make). He fired the FBI director for not subverting an ongoing law enforcement investigation that he wanted quashed. He has publicly gone after in verbal statements or tweets the deputy attorney general and the acting FBI director. And now, he has publicly chastised the attorney general for making a decision required by the department’s ethics rules.
Take note of who he is firing or pressuring to resign in his first six months in office—these are the senior government officials responsible for the equitable enforcement of our laws. The President is attacking the integrity of the leadership of the Department of Justice, the fair application of the law, and the pursuit of truth.
On my bookshelf at home, I have a yellowed copy of the 1996 book entitled Main Justice, by Jim McGee and Brian Duffy. I first read it before my first day of work in the Department 20 years ago, this month. It’s not an academic or legal book; it’s a colorful read of some notable cases and personalities that the Department’s modern history is made of. The authors describe the Justice Department as “…one of the few major institutions in society where individuals can make a profound difference in the problems facing the nation.” That much is true. I have a few awards from my thirteen years in the Department, but the one I treasure the most is the smallest in size—it is a wooden plaque a few inches wide that those of us who served in a small national security office after the 9/11 attacks were handed by our office leadership a few months later in a windowless conference room. In the ensuing challenging years, leaders of that office reminded the lawyers regularly that our client was not the agency we were doing work for, the department itself, or even the president; our client was the American public.
These are not sentiments that I expect Donald Trump will ever come to understand. But that does not mean that the rest of Washington, or the country, does not. The fair administration of justice does not just live in the halls of Main Justice, or in rules promulgated by the Attorney General, but in the Constitution and its bedrock requirements. We are a nation of laws, and those laws require honest people to enforce them. As Chief Justice Rehnquist wrote in All the Laws But One, “[i]n any civilized society the most important task is achieving the proper balance between freedom and order.” The Justice Department, and its leadership, do their work every day ensuring this balance is maintained. Allowing a president unencumbered by an appreciation for this role to dismantle the department’s independent leadership risks that this fundamental balance will not be honored when tested.
Attorney General Sessions should not resign; he should force the President to fire him. Why? Because capitulation to this gross politicization of justice would make him unworthy of the office that he has the honor of holding.