Emily Bazelon has discovered the plot to destroy the United States of America that has been hatched by Steven
-Breitbart- Brannon, Jeff (Lame-Duck) Sessions, and Il Douche. If this is (fair & balanced) muckraking, so be it.
[x NY Fishwrap 'Zine]
Department Of Justification
By Emily Bazelon
TagCrowd cloud of the following piece of writing
One night in September 2014, when he was chief executive of Breitbart News, Stephen Bannon hosted cocktails and dinner at the Washington townhouse where he lived, a mansion near the Supreme Court that he liked to call the Breitbart Embassy. Beneath elaborate chandeliers and flanked by gold drapes and stately oil paintings, Jeff Sessions, then a senator from Alabama, sat next to the guest of honor: Nigel Farage, the insurgent British politician, who first met Sessions two years earlier when Bannon introduced them. Farage was building support for his right-wing party by complaining in the British press about “uncontrolled mass immigration.” Sessions, like other attendees, was celebrating the recent collapse in Congress of bipartisan immigration reform, which would have provided a path to citizenship for some undocumented people. At the dinner, Sessions told a writer for "Vice," Reid Cherlin, that Bannon’s site was instrumental in defeating the measure. Sessions read Breitbart almost every day, he explained, because it was “putting out cutting-edge information.”
Bannon’s role in blocking the reform had gone beyond sympathetic coverage on his site. Over the previous year, he, Sessions and one of Sessions’s top aides, Stephen Miller, spent “an enormous amount of time” meeting in person, “developing plans and messaging and strategy,” as Miller later explained to Rosie Gray in The Atlantic. Breitbart writers also reportedly met with Sessions’s staff for a weekly happy hour at the Union Pub. For most Republicans in Washington, immigration was an issue they wished would go away, a persistent source of conflict between the party’s elites, who saw it as a straightforward economic good, and its middle-class voting base, who mistrusted the effects of immigration on employment. But for Bannon, Sessions and Miller, immigration was a galvanizing issue, lying at the center of their apparent vision for reshaping the United States by tethering it to its European and Christian origins. (None of them would comment for this article.) That September evening, as they celebrated the collapse of the reform effort — and the rise of Farage, whose own anti-immigration party in Britain represented the new brand of nativism — it felt like the beginning of something new. “I was privileged enough to be at it,” Miller said about the gathering last June, while a guest on Breitbart’s SiriusXM radio show. “It’s going to sound like a motivational speech, but it’s true. To all the voters out there: The only limits to what we can achieve is what we believe we can achieve.”
The answer to what they could achieve, of course, is now obvious: everything. Bannon and Miller are ensconced in the West Wing, as arguably the two most influential policy advisers to Donald J. Trump. And Jeff Sessions is now the attorney general of the United States. The genesis of their working relationship is crucial to understanding the far-reaching domestic goals of the Trump presidency and how the law may be used to attain them over the next four years. Bannon and Sessions have effectively presented the country’s changing demographics — the rising number of minority and foreign-born residents — as America’s chief internal threat. Sessions has long been an outlier in his party on this subject; in 2013, when his Republican colleagues were talking primarily about curbing illegal immigration, he offered a proposal to curb legal immigration. (It failed in committee, 17 to one.)
Talking to Bannon on air in September 2015, Sessions, who has received awards from virulently anti-immigrant groups, described the present day as a dangerous period of “radical change” for America, comparing it to the decades of the early 20th century, when waves of immigrants flooded the country. He said that the 1924 immigration quota system, which barred most Asians and tightly capped the entry of Italians, Jews, Africans and Middle Easterners, “was good for America.” Bannon is also uncomfortable with the changing face of the country. “When two-thirds or three-quarters of the CEOs in Silicon Valley are from South Asia or from Asia, I think — ” he said on the radio with Trump in November 2015, vastly exaggerating the actual numbers. “A country is more than an economy. We’re a civic society.”
At a time when other, more libertarian conservatives had begun to embrace critiques of the criminal-justice system, each man saw crime as yet another way that the fabric of society was deteriorating. While Bannon was chief executive, Breitbart created a specific tag for articles called “black crime” and ran article after article demonizing the Black Lives Matter movement (calling protesters “blood-lusting junkies”) and showing Latino immigrants as violent (“One Sex Offender Illegal Alien Caught After Another Alleged Offender Legalized”). The site also frequently covered Sessions’s condemnations of criminal-justice reform. Opposing a bipartisan bill to reduce sentences for some nonviolent drug offenses, Sessions said last May that Republican supporters of the legislation “in no way represent the conservative movement” and warned against “signing death warrants for thousands of American innocent citizens.”
As the Republican primary season progressed, it became clear to Sessions and Bannon that Trump could be the vessel for their brand of Republicanism. Back in August 2015, Bannon emailed a friend, according to The Daily Beast, that while he felt good about other candidates like Ted Cruz, he was ready to pick Trump, because he was “a nationalist who embraces” Sessions’s immigration plan. Six months later, Sessions became the first senator to endorse Trump for president. Last August, Sessions helped create a new immigration policy for Trump, which called for reducing immigration by, among other things, tightening the rules about visas for high-skilled workers. That same month, Bannon took over Trump’s campaign.
Their shared view was central to Trump’s Inaugural Address, which, according to The Wall Street Journal, Bannon and Miller principally wrote. For a president taking office amid peacetime and economic growth, the speech offered a singularly dark vision. Trump spoke of “American carnage” — a country made increasingly dangerous by “the crime and the gangs and the drugs,” its economy ravaged by production abroad, its borders infiltrated by marauders. The speech was a perfect distillation of the foreboding view of America broadcast by Breitbart — a land in disarray and decline that has reached the point of crisis.
In fact, violent crime has been declining sharply for 25 years; with a small uptick in 2015, it remains low. The number of undocumented immigrants has fallen slightly in the last decade, and these newcomers are less likely to commit violent crimes than people who were born here. Evidence shows that immigrants are an engine of economic growth and entrepreneurship. While they take a small bite out of the wages of native-born workers without a high school diploma, they provide an overall boost to productivity that increases the pay of more educated workers by up to 10 percent, labor economists say. As for the “totalitarian threat” that, according to Sessions, Americans face from radical Islam, since Sept. 11, white supremacists and other non-Muslim extremists have killed nearly twice as many Americans as radical Muslims, according to the New America Foundation.
Why would the Trump administration paint a picture so starkly at odds with reality? It’s simple: A vision of the nation besieged provides clear justification for policies that will advance Sessions, Bannon and Miller’s divisive nationalism. In the administration’s early moves, we can already see the contours beginning to take shape. An executive order presented as an emergency measure to protect the country from terrorists winds up barring immigrants coming here to study or work from seven countries that have not been a source of terrorist attacks in the United States since September 11. Another order refers to immigrants who “pose a risk to public safety” and then makes millions of the undocumented people in the country a priority for deportation. Impending catastrophe grants the president broad powers, and those powers are used broadly.
It is through the Justice Department that the administration is likely to advance its nationalist plans — to strengthen the grip of law enforcement, raise barriers to voting and significantly reduce all forms of immigration, promoting what seems to be a longstanding desire to reassert the country’s European and Christian heritage. It’s not an accident that Sessions, who presumably could have chosen from a number of plum assignments, opted for the role of attorney general. The The Department of Justice is the most valuable perch from which to transform the country in the way he and Bannon have wanted. With an exaggerated threat of disorder looming, the nation’s top law-enforcement agency could become a machine for trying to fundamentally change who gets to be an American and what rights they can enjoy.
The Department of Justice employs a staff of 115,000, including more than 10,000 lawyers. Besides encompassing the FBI and the Drug Enforcement Administration, the department administers the federal prison system; prosecutes financial fraud, federal environmental crimes and national-security violations; and oversees the country’s 93 United States attorneys (who prosecute federal crimes throughout the country). The department also includes two critical sites for setting legal policy. The Office of the Solicitor General decides the positions the federal government takes in the appeals courts and before the Supreme Court, and the Office of Legal Counsel advises the president about the legality of his actions and executive orders, passing judgment like an internal court.
The traditional explanation for the founding of the Department of Justice in 1870 has heroic overtones: Congress and President Ulysses S. Grant were purportedly determined to enforce Reconstruction and protect the civil rights of former slaves. But in recent years, a more pragmatic narrative has taken hold. As the Fordham law professor Jed Handelsman Shugerman explains it, the story is really about cutting costs, weeding out cronyism and reining in radical Republican lawyers who wanted to aggressively enforce the policies of Reconstruction. In a 2014 article in The Stanford Law Review, Shugerman points out that the creation of the Justice Department reduced the federal legal staff by one-third. While a handful of determined lawyers successfully prosecuted Ku Klux Klan members in the early years, for the most part, Shugerman told me, “the DOJ handcuffed the federal government’s lawyers from doing more.”
At the time, lawyers worked all over Washington, in the State Department, the Interior Department and elsewhere. But it wasn’t until the opening in 1934 of the Justice Department’s current headquarters, an imposing building the size of a large square block, that the department became a strong institutional presence. Justice Department lawyers flexed their muscles defending the New Deal, and the agency expanded in scope.
For all the vast sweep of the Department of Justice as a whole, much of its influence over the major political conflicts of our time, and certainly those poised to dominate the next four years, is concentrated within the civil rights division, charged as it is with ensuring equal protection under the law. With a staff of roughly 700, the division is basically the watchdog of the government and also a kind of police of the nation’s police, because it has the power to investigate departments for violations of civil rights law. It can also sue localities for discrimination in housing, education and employment, on the basis of sex, national origin, religion or disability as well as race. The division also protects the rights of people in prison and mental institutions.
When the division was founded in 1957, it was staffed by a handful of lawyers who largely refrained from directly challenging Jim Crow in the South. But when Robert F. Kennedy became attorney general in 1961, things changed. He “had his own ambitions,” Shugerman says. “Even as JFK tried to steer the ship down the middle, RFK pulled it toward civil rights.” In the 1970s and early ’80s, the civil rights division’s ranks grew, attracting top law-school graduates to nonpartisan civil-service jobs. Many of them hoped to serve in the tradition of lawyers like John Doar, a Republican from Wisconsin who lived in a dorm for weeks with James Meredith, the first African-American student to attend the University of Mississippi, during his struggle to register for classes in 1962. “Most of us were liberals, and we were passionate about fighting the country’s long history of racial injustice,” says William Yeomans, who worked in the division for 24 years, beginning in 1981.
Political battles over the priorities of the division have been escalating for decades. During Democratic presidencies, the division has moved to challenge intentional discrimination by individuals (like a landlord who turns away an African-American couple and then rents to a white one) and has sought to combat policies that disproportionally affect minorities, even if it’s not easy to prove they’re racially motivated (like a low-income housing program that funnels African-American recipients into mostly minority areas). Republican administrations since the Reagan era, by contrast, have tended to bring individual rather than broad suits while also treating civil rights as race-neutral or colorblind and opposing affirmative action. They have also been equally likely to sue on behalf of white and black people who say they face unequal treatment. “The Republican view of civil rights focuses on the protection of the individual,” says Robert Driscoll, chief of staff of the civil rights division during George W. Bush’s first term. The Republican approach has caused tension with the career staff. “Whenever the GOP is in office, there’s a certain amount of heat on whoever is in charge,” Driscoll says. “The career people hated us when I was there.”
During the Obama administration in particular, the civil rights division began to take on a whole gamut of institutions. Under the leadership of Tom Perez, it went after banks, arguing that Wells Fargo and Bank of America systematically steered African-American and Latino homeowners toward subprime loans, and winning the largest settlements in the history of the Fair Housing Act, totaling about $570 million. In 2014, Vanita Gupta arrived from the ACLU to lead the division, and under her direction, the department addressed prisons and schools, working to reduce solitary confinement, discouraging the arrest of students for disciplinary infractions and instructing schools [PDF] across the country to let transgender students use the bathrooms of their choice. (Sessions led the charge in the Trump administration to rescind the order about bathroom access.) Another significant power Perez and Gupta exercised was oversight of local police forces, investigating 25 departments for problems like excessive use of force, unlawful arrests and racially discriminatory policing. Twenty of those investigations ended in consent decrees, a form of agreement that entails monitoring by the courts.
In this way, the Justice Department under Obama used civil rights enforcement — or the potential for it — to check private, local and state entities that otherwise would have escaped federal intervention. But Sessions can pull back on such oversight, even to an extent (if he chooses) beyond that of his Republican predecessors. Invoking Trump’s nightmare vision of America as beset by lawlessness, the department can unbind the hands of law-enforcement agencies around the country. On issues like immigration and voting rights, with public perceptions influenced by inflated tales of criminality (improper use of benefits, voter fraud), a Sessions-led Department of Justice can both feed the narrative of crime and react to it, through heightened investigations and prosecutions. A civil rights system built up to protect the minority from the majority could quickly turn into the reverse.
Crime — especially urban crime — lies at the heart of the new nationalist message, in part as an argument for why liberal-run cities, with their dense, diverse, polyglot communities, shouldn’t serve as a model for the nation as a whole. Since the outset of his campaign, Trump has exaggerated the violence and poverty of “inner cities,” painting them as war zones and blaming Democrats for the destruction. The politics behind this sort of language are not new: For 50 years, Republican candidates for president have won by stoking fear of crime, promising to “restore order and respect for law in this country,” as Richard Nixon put it in 1968. But Trump has been fixated on the issue, ignoring actual crime statistics to inaccurately blame African-Americans for most white homicides and falsely claim that the murder rate is at its highest point in 47 years.
While many conservative figures kept their distance from Trump during the campaign, one group embraced him wholeheartedly: law-enforcement unions. The rank and file did, too. A survey before the election by Police magazine found that 84 percent of officers who planned to vote backed him, while just 8 percent supported Hillary Clinton. Trump’s views on the Black Lives Matter movement, which many cops have seen as unfair and a danger to policing minority neighborhoods, no doubt played a part. Last summer, Trump called the movement a “threat,” blaming it for the deaths of officers and adding, “We are going to have to perhaps talk with the attorney general about it.”
Today the test is how Trump’s new attorney general will view the Justice Department’s responsibility, conferred by Congress in 1994 after the beating of Rodney King, to investigate local police departments for a “pattern or practice” of civil rights violations. With more than 12,000 police departments across the country, the division couldn’t exercise anything approaching true national oversight even if it wanted to. (Perez and Gupta’s total of 25 investigations was equal to that of the Clinton Justice Department over eight years; the Bush administration initiated 21.) But the Obama Justice Department’s willingness to enter cities like Chicago, Baltimore and Ferguson, MO, after high-profile encounters between the police and African-Americans meant that officers everywhere had to reckon with the possibility of federal investigation — at a time when many of them already felt under siege.
Consider Chicago, which throughout the campaign was Trump’s exemplar of a city rife with “carnage.” Chicago has been reeling from a major spike in gun violence and killings, but it is also a city with a sordid history of police abuses. Under Gupta, the civil rights division opened an investigation into the city’s police department in 2015, after the release of a video of the killing of Laquan McDonald, a 17-year-old who was shot 16 times by an officer while the teenager was walking away. After hundreds of hours of interviews with police officers, residents and city officials, the civil rights division issued an unsparing set of findings in January, faulting the police department for routinely using excessive force (especially against African-Americans and Latinos), a deficient system for investigating police misconduct and a poor structure of supervision, promotion and training. The Chicago Fraternal Order of Police welcomed the parts of the report about training and promotion. But the union objected to the Justice Department’s implication that race affects police decision-making, arguing that officers are simply targeting criminal behavior in high-crime areas, not African-Americans and Latinos.
Now the police have an attorney general who has been unwilling to give credence to their critics. Confronting Gupta in November 2015 at a Senate hearing called the War on Police, Sessions suggested that the civil rights division was going “beyond fair and balanced treatment” of law enforcement. Sessions has also called court-monitored consent decrees, which the Justice Department has used to settle school desegregation cases in addition to police investigations, “one of the most dangerous, and rarely discussed, exercises of raw power.” The problem, in other words, isn’t what the police are doing. It’s that the federal government is interfering.
In appearing to categorically oppose consent decrees and signaling a lack of interest in broad new investigations, Sessions appears to be going further than even police groups do. “No officer worth his badge would say ‘no investigations’ if an investigation is warranted,” James Pasco, executive director of the Fraternal Order of Police, told me. But that doesn’t mean the police wouldn’t like the Justice Department to back off in Chicago, where no consent decree was negotiated before Obama’s and Gupta’s departures, and it’s now up to Sessions to decide what an agreement of any kind should look like, or whether it should exist at all.
The question for the country is what happens if local police departments, relieved of the realistic prospect of federal oversight, feel their hands are untied in tense situations. On an evening in January when Fox News ran a segment on the recent spike in murders in Chicago, Trump tweeted a few minutes later that he could “send in the feds!” It’s hard to know what Trump meant, but he was not talking about protecting civil rights. The next time a disturbing video of a police shooting surfaces, it’s easy to imagine Trump and Sessions supporting the police without question and directing a crackdown on protesters, especially if they’re mostly black. That would connect the Trumpist edition of law and order to the apparent project of undermining the rights of minorities and their claim on the national conscience.
Another way in which the Department of Justice could move to advance the Sessions and Bannon agenda is through its approach to voting laws. The civil rights division’s powers in this area flow mostly from the Voting Rights Act, which Congress passed in 1965 to help African-Americans vote. Section 5 of the act gave the Justice Department unusual authority to review any proposed change to an election practice in a state or county with a history of low minority registration, mostly in the South. The division’s voting section has largely seen its role ever since as safeguarding the rights of minority voters. During both Democratic and Republican administrations, Justice Department lawyers used Section 5 to block localities from redrawing district lines or closing polling places — and to block strict voter-ID laws from taking effect.
But in 2013, in a 5-to-4 Supreme Court decision in Shelby County v. Holder, Chief Justice John Roberts Jr. argued for the majority that Section 5 was no longer necessary because “things have changed dramatically” in the South. After the ruling, however, Southern states rushed to make it more difficult for people to vote. Hundreds of polling places were closed throughout the region, and Texas and North Carolina passed strict voter-ID laws. North Carolina also ended same-day registration and out-of-precinct voting and reduced the early-voting period to one week from two.
The Obama Justice Department responded by joining civil rights groups in suing Texas and North Carolina, claiming the laws had the effect of discriminating against minority voters. Matching voter rolls to the records in state and federal databases, experts hired by the Justice Department determined that more than 600,000 voters in Texas lacked the required ID and that they were disproportionately black and Latino. An appeals court ruled against Texas last July. Nine days later, a second appeals court struck down North Carolina’s law, saying the restrictions “target African-American voters with almost surgical precision.” Obama urged other states to heed the lesson in his final speech as president: “We should be making it easier, not harder, to vote.”
Trump and Sessions are poised to do precisely the opposite, creating a rationale for restricting voting instead of expanding it. On Monday, the Justice Department switched positions by dropping the key claim that Texas passed its voter ID law with the intent to discriminate. Over the last few months, the president has claimed that millions of people voted illegally in November. In fact, just four cases of in-person voter fraud have been identified from the 2016 presidential election, and a Loyola Law School study in 2014 discovered only 31 credible allegations of fraud in a sample of one billion votes. Pressed for evidence by Bill O’Reilly on Fox, Trump promised that Vice President Mike Pence would lead a commission to investigate the nation’s voting rolls. A week later, Stephen Miller falsely insisted on TV that “14 percent of noncitizens” are registered to vote — portraying the country as vulnerable to shadowy foreign hordes who undermine the very core of American democracy.
Raising the alarm about illegal voting furthers the Republican Party’s current strategy for preserving power. For more than a decade, Republican state legislators have used the myth of widespread fraud to justify tightening voting and registration rules. This year, 46 new bills to restrict access to voting and registration have been introduced in 21 states, according to the Brennan Center for Justice. Making it harder to vote tends to help Republicans win office, in part because it tends to have a disproportionate impact on minority voters, who are less likely to have a required form of ID and who generally support Democrats. Over the next four election cycles, the national share of eligible voters who are minorities is projected [PDF] to rise steadily, to about 40 percent from about 30 percent. Bluntly put, Trump’s supporters, who were 90 percent white, can continue to put Republican candidates over the top only if an increasing number of minority voters stay away from — or are kept away from — the polls.
The Republican hunt for voter fraud has a history [PDF]. After George W. Bush narrowly beat Al Gore in 2000, his attorney general created an election-integrity task force, spurring United States attorneys to search for voter fraud. One of them, David Iglesias, a Republican in New Mexico, looked into more than 100 complaints but couldn’t find enough evidence for a single prosecution. He was fired in 2006 along with eight other United States attorneys. An investigation [PDF] by the Justice Department later found that most of the dismissals were a serious abuse of executive power, because they were a response to the attorneys’ refusing to bring unsubstantiated voter-fraud charges or politically motivated charges against Democratic officials, or both as in Iglesias’ case. Congressional hearings related to the firings took down Alberto Gonzales, Bush’s attorney general at the time.
Bush appointees in the civil rights division were also caught trying to illegally push out career civil rights lawyers and replace them with conservatives. In an internal email, one Bush appointee, Brad Schlozman, wrote to another Republican: “My tentative plans are to gerrymander all those crazy libs right out of the section.” By the end of Bush’s term, most of the career attorneys had been pushed out or had left. “They attacked everything we were supposed to stand for,” says Joe Rich, who spent 36 years in the division.
During Obama’s presidency, new career lawyers were hired, but Sessions could try to transfer them or lay them off. The Heritage Foundation has called for reducing the civil rights division’s budget by $58 million, or about one-third.
It’s not clear yet who will lead Sessions’s civil rights division. In the short term, Sessions has put the division in the hands of conservatives who have a record of defending voting restrictions. Tom Wheeler, the acting head, advised Texas Republicans when they wrote their voter-ID law. John Gore, the No. 2, has defended jurisdictions against voting rights challenges at the law firm Jones Day in Washington, working frequently with Michael Carvin, a founder of the conservative legal movement in the Reagan Justice Department. (Sessions also worked for that Justice Department as a United States attorney in west Alabama, and in 1985 he prosecuted three black civil rights activists for voter fraud. The case, which collapsed at trial, was one reason he was not confirmed for a federal judgeship the following year.)
In 2012, Gore and Carvin defended Florida when it was sued — by the Justice Department as well as civil rights groups — over an effort to purge the rolls of noncitizens. Florida was implementing the 1993 Motor Voter law, which, in addition to improving access to registration, instructed states to remove people, within limits, from the rolls if they had moved away or died. The state wrongly flagged thousands of American citizens, most of them Latino. Florida lost the suit on appeal and stopped the purge. Now Gore will help decide the Justice Department’s position if another state is suspected of expunging voters unlawfully. And he or other Sessions appointees could shift the work of the career lawyers in the voting section to push states to go through their voter rolls. Though keeping the rolls up to date is a good idea in theory, when states flag voters who have a Latino name or are naturalized citizens, the burden is on the voters to prove the state has erred. Otherwise they can’t vote.
To turn back the clock on immigration, Sessions, Bannon and Trump would have to prevent more immigrants from coming in and remove those who are here. Trump’s January 27 executive order banning refugees and travelers from seven majority-Muslim countries, reportedly overseen by Bannon and Miller, was the initial bid to shut the door. On Feb. 20, the Department of Homeland Security announced the new guidance that vastly broadened the definition of who is considered a priority for deportation.
It falls to immigration agents at the Department of Homeland Security, not the Department of Justice, to pick people up. But Sessions has a major role to play. To begin with, he oversees the nation’s immigration courts. The Feb. 20 guidelines call for the Justice Department to send a surge of judges to the border to turn people around with a type of speedy removal, entailing only the barest form of legal process — a practice that Trump just expanded far beyond what any president has authorized (and which now applies in the interior of the country as well). Sessions also has the authority to streamline appeals, by expanding a cursory form of review used during the Bush years, and to overturn Obama-era decisions that have made it easier to receive asylum or get legal counsel.
Democratic mayors and governors have vowed not to cooperate with a federal crackdown, and Trump has responded with an order asking the Departments of Justice and Homeland Security to withhold federal funds from them. It will be up to Sessions to decide how far to go in trying to cancel grants that cities receive from his department (for drug treatment and crime prevention, for example).
Detention and deportation on a mass scale would be a gargantuan task — divisive, enormously costly and legally fraught. The only feasible way to get millions of undocumented immigrants out of the country, as Trump has promised, is to create a climate that induces immigrants to leave on their own. “You basically would have [to] self-deport,” Sessions said on CNN last fall. That means “leveraging fear,” as Kamal Essaheb, policy director for the National Immigration Law Center, puts it. The February 20 guidelines direct immigration agents to “refer appropriate cases for criminal prosecution.” Those cases would go to federal prosecutors and could lead to yearslong prison terms. An estimated eight million people go to work in this country every day without papers. Sending a rash of them to prison could do more than the threat of deportation to send laborers across the country packing.
Sessions has supported an experiment in self-deportation before. In June 2011, when he was a senator, Alabama enacted the most restrictive immigration law in the country. Called H.B. 56, it gave law enforcement the authority to ask for a driver’s papers, mandated the arrest of people who lacked proper documents and required people to show proof of citizenship when they interacted with a government agency. Residents were required to provide identification to renew a mobile-home license or register a child for school.
Immigrants left Alabama for fear of being arrested; others were afraid to send their children to school. Laura Ingraham, the conservative radio host, invited Sessions on her show to discuss H.B. 56 that fall. “Do you think it’s bad” that “all these Hispanic kids have disappeared from schools?” she asked.
“All I would just say to you is it’s a sad thing that we’ve allowed a situation to occur for decades in which large numbers of people are in the country illegally,” Sessions answered.
Many business leaders opposed H.B. 56 for taking away their workers and customers. The law was projected to cost the state between $2 billion and $11 billion in lost GDP in its first year, according to an estimate by a University of Alabama economist. One farmer challenged a state legislator to pick his tomatoes for him. But in an interview in The Daily Caller, Sessions claimed that the opposition to H.B. 56 was “an effort by leftist, activist immigration advocates.” He continued: “Incredibly, the Department of Justice has joined in on that aggressively.”
At the time, the Obama Justice Department was suing Alabama in federal court over the immigration restrictions alongside a coalition of churches and civil rights groups. Concerned about the impact on families, Obama’s lawyers argued that Alabama was going further than federal law allowed. “Our visions of immigrant rights and civil rights were inextricably intertwined,” Tom Perez, then head of the civil rights division, told me. In court, the plaintiffs invoked a 1982 Supreme Court decision, Plyler v. Doe, which found that undocumented children have a constitutional right to an education.
In November 2013, the Justice Department succeeded in permanently blocking most of H.B. 56. The civil rights divisions of the Department of Justice and the Department of Education followed with a letter in 2014 to every school district in the country, warning against any policy that could dissuade students from enrolling because of their families’ immigration status. The Justice Department also defended Obama’s actions to allow young people brought to the United States as children, called Dreamers, and their close relatives to work or go to school without fear of deportation. Sessions could review that directive and call for withdrawing it, perhaps as a misuse of prosecutorial discretion. In other words, the Justice Department, especially in the last few years, has operated in several ways to make undocumented families more secure. Sessions can repurpose the machinery to do something else entirely.
Before Sessions was confirmed as attorney general, Sally Yates, a holdover from the Obama administration, was serving in that role. When Trump issued his refugee and travel ban on January 27, she refused to defend the order in court, saying she was not convinced that his order was lawful or consistent with the Justice Department’s obligation to “stand for what is right.” Trump quickly fired Yates amid a predictably partisan debate over whether she was acting on an important principle or failing to do her job.
In almost all circumstances, the top law-enforcement official in the executive branch is expected to side with the chief of that branch — the president. Yet we want the attorney general to exercise his or her own judgment when we fear presidential wrongdoing. Nixon’s attorney general, Elliot Richardson, and then the acting attorney general who was next in line, William Ruckelshaus, are celebrated for resigning when Nixon ordered them to fire the special prosecutor who was investigating his role in the Watergate break-in. Sessions is already facing questions about his independence for not recusing himself from any FBI investigation of the Trump campaign’s ties to Russia. Because Sessions was an architect of the particular nationalist vision that drives Trump’s approach to policing, voting and immigration, it’s hard to imagine what the president (or Bannon) would want to do in those arenas that Sessions would not be ready to defend. Unlike Yates, he is in accord with their aims. He can simply perform the attorney general’s ordinary duties, by doing his utmost to ensure Trump’s orders survive legal scrutiny.
What can stop Trump, Bannon and Sessions from using the Justice Department to achieve their goals? So far, judges across the country have prevented Trump from carrying out his refugee and travel ban, and they’ve accepted lawsuits against him for review.
Over time, however, more federal judges will be Trump appointees. It’s not just Neil Gorsuch’s nomination to the Supreme Court that’s important for determining the legal fate of Trumpism. Rulings by lower court judges set expectations and establish rationales. Because of the high number of vacancies and older judges, Trump may be able to appoint a greater share of federal judges than any first-term president in 40 years.
Judges are supposed to be entirely independent of the president even if he appoints them. The Constitution depends on it. And there are other constraints. The Justice Department’s career staff exerts a strong pull toward the center. The public’s restive mood and high level of engagement so far matter, too. It’s no sure thing that Sessions, Bannon and Trump will succeed in carrying out their shared vision. But they’re likely to work together, as long as they’re each in office, to test how far the country will let them go. ###
[Emily Bazelon is a staff writer for The New York Times Magazine and a former senior editor at Slate. Bazelon also is a senior research scholar in Law and Truman Capote Fellow for Creative Writing and Law at Yale Law School. She is a graduate of Yale College (BA, English) and Yale Law School (JD) and was an editor of the Yale Law Journal.]
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