Jeff Sessions "assisted" two major civil rights cases with ill-informed devil's advocacy
When I first sat down to start writing a post on Jeff Sessions' confirmation hearings for Attorney General, I thought I might do something like "ten questions for Senators thinking of confirming Jeff Sessions". But as I carefully reviewed video and transcripts of the hearings, along with the record of Sessions' 1986 judicial confirmation hearings, I realized I didn't need ten points. I just needed one: it looks an awful lot like Sessions perjured himself in the questionnaire he submitted to the Senate Judiciary Committee last month. And if not, if he really believes the things he said, he is sadly self-deluded about the nature of his own record on civil rights.
Here's what happened in 1986: the very first witness to testify in those hearings was a lawyer named Gerald Hebert. Hebert was a lawyer for the Department of Justice's Civil Rights Division, who had handled cases in Alabama when Sessions' was US Attorney for the state. The Senate Judiciary Committee's legal counsel had interviewed Hebert privately before the hearings began, and Hebert's testimony in that interview ended up being among the most damaging testimony made against Sessions.
Hebert said that he had talked at length with Sessions about the cases he (Hebert) had handled in Alabama, and Sessions had made clear that he "didn’t think these cases had merit" but there "wasn’t much he could do about it", and Sessions refrained from obstructing these cases whatever his personal opinions. Hebert also said Sessions had suggested a white lawyer was a "disgrace to his race" for representing African-Americans in a particular case, and that the NAACP was "un-American". At one point, Hebert felt the need to explain that, "I have to put this in the context of the fact that he and I get along pretty well". Near the end of the interview, one staffer suggested that "Mr. Sessions likes to engage in contentious debate on a friendly basis", a characterization Hebert agreed with.1
The interview with Hebert provided the basis for some of the first questions Sessions was asked in the hearing itself. For example, Sessions was asked to respond to the claim that he had "found fault with requests to institute civil rights actions against candidates for vote dilution" (meaning Hebert's cases and possibly other similar cases). Sessions replied that he "questioned a number of the lawyers who would come down and seek my signature on the documents to file them, and the wisdom of it", but ultimately signed the documents.2
When asked about the claim Sessions had called a white civil rights lawyer "a disgrace to his race", Sessions said:3
I understand that that statement has been made, and I recall a conversation in which that was mentioned and I may have—I believe the statement was I had said maybe he is, and that is really disturbing to me. I suppose—I do not know why I would have said that, and I certainly do not believe that.
In response to further questioning, Sessions clarified he was not denying having made the comment, and "could not recall" if he had made it in a "spirit of levity" or not.
Sessions also testified that he could not recall making the comments about the ACLU and the NAACP to Hebert, but admitted making similar comments to another civil rights lawyer (Thomas Figures, who would also testify against Sessions later in the hearing). And he volunteered regarding one of Hebert's vote-dilution cases that "The City of Mobile case that I had talked with him about and argued with him a little—of course, I did not really know the law and I was just egging him on a little." This confirmed something Hebert had said in his interview, that he didn't think Sessions really understood those cases.
This was followed by Hebert's own testimony before the committee, which has been widely quoted. However, there's one thing Hebert said that I've not heard quoted elsewhere, which provides valuable context for the rest of his remarks. Hebert explains that he had initially believed his comments about Sessions would be kept confidential, only to be told one day at 1:15 that he would be called to testify before the Senate Judiciary Committee at 1:45 the next.4
Much of Hebert's testimony before the committee is quite complimentary towards Sessions. For example, here is Hebert's response to the first substantive question the committee asked him:5
I have, Senator, very mixed feelings about my testimony today, and I would like to answer your question, but first explain the reasons for that.
I have-in conversations over the last couple of years, many which, I understand, have been read into the record in these proceedings, Mr. Sessions and I have engaged in a number of conversations on subjects that touched racial issues and civil rights issues.
At the same time—and those comments are now a matte public record here, and I stand by those as having been made. But by the same token, I have prosecuted cases that are highly sensitive and very controversial and, quite frankly, unpopular in southern district.
And yet I have needed Mr. Sessions' help in those cases an he has provided that help every step of the way. In fact, I would that my experience with Mr. Sessions has led me to believe that I have received more cooperation from him, more active involvement from him, because I have called upon him.
I consider him a friend of mine, more than just a U.S. attorney in the southern district. I call him when I go into Mobile even if I am not there necessarily on departmental business, and he has occasion to call me when he has been in Washington.
I believe that when Jeff Sessions says he is going to do something, he is a man of his word and he will do it. And so if his testimony before the committee is that he would follow the law faithfully, I personally would believe him.
Such statements need to be read in the context of Hebert being caught off-guard, maybe even mortified, by the fact that comments about one of his colleagues which he had thought would remain confidential were in fact being made public. Similarly, Hebert told the committee that:
In the two Mobile voting case that I handled, in the Dallas County, AL case and in the Marengo County, AL case, I have had occasion numerous times to ask for his assistance and guidance.
I have been able to go to him; he has had an open-door policy and I have taken advantage of that and found him cooperative.
Yet in the interview that had happened previously, Hebert said, referring to Dallas, Marengo, and other cases he'd brought, "“He has never, you know, interfered with me in prosecuting those cases. He hasn’t had much to do with them."6
Taken together, all the evidence presented at the 1986 hearings is consistent with Sessions' "assistance" with Hebert's cases consisting mainly of signatures, office space, and use of Sessions' secretary, and the "guidance" consisting entirely of informal and rather uninformed devil's advocacy on Sessions' part. And it is hard to see how Sessions could have offered more useful "guidance" than that, given that Sessions himself admitted, in the hearings, that he didn't really know the legal issues in those cases. It is also notable that Sessions himself did not mention "guidance", only "questioning" and "arguing". In other words, Hebert was being nice.
In spite of these facts, when Donald Trump announced he would appoint Jeff Sessions as Attorney General, and the Senate Judiciary Committee sent Sessions a questionnaire asking about the "the most significant litigated matters which you personally handled", Sessions chose to take credit for both the Dallas and Marengo cases. Someone must have noticed this and found it odd, because a couple weeks later Sessions filed a supplement to the questionnaire that tried to explain this by "I provided assistance and guidance to the Civil Rights Division attorneys, had an open-door policy with them, and cooperated with them on these cases."
That language of course, is lifted from Hebert's 1986 testimony, and is lifted without attribution. Moreover, it is applied not just to the two cases brought by Hebert, but to two other civil rights cases. In response to these claims by Sessions, Hebert provided fresh testimony to the Senate Judiciary Committee saying that, "I can categorically state that Mr. Sessions had no substantive involvement in any of these cases". And during Tuesday's hearing, Senator Al Franken got Sessions to admit that he didn't even know the lawyer in charge of another of the cases.
It's that third case where outright perjury seems most likely.7 But with Herbert's cases, maybe Sessions believes what he said. Maybe, over the last 30 years, he's convinced himself that his colleague Jerry Herbert was not merely being polite, and his ill-informed devil's advocacy constituted valuable "guidance" on Herbert's cases. If so, then as the man who appointed Sessions likes to say: sad!
After Franken got Sessions to admit not knowing the lead attorney on one of the most significant cases Sessions claimed to have "personally handled", Ted Cruz got up and attacked Hebert, claiming that Hebert had "recanted" his testimony from the 1986 hearing. Actually, Hebert recanted only one detail: another attorney, Paul Hancock, had accused Sessions of obstructing one of Hancock's cases, and Hebert had been asked if this was true. Hebert initially said it was, but three days later realized, based on written documents, that he had been mistaken. From Hebert's original testimony, it is rather obvious his knowledge is second-hand, through Hancock, and that Hebert has only said, in effect, "that's what Hancock told me".8 Finding this out made me quite sorry about having ever said nice things about Ted Cruz.
The record of the 1986 hearings have a lot of enlightening details about the trumped-up voter fraud prosecution Sessions brought, which maybe I'll write about in a future post. That's always been the thing that's troubled me most about Sessions, given Trump clearly has a thing for bogus claims of voter fraud. But for any member of the Senate who doesn't think that prosecution is disqualifying, what I've described here really ought to be a smoking gun. It really says something that the counter-narrative Sessions has spun about himself as a civil rights hero is at best a confabulation, and at worst perjury. It's now up to the Senate to decide if they'll tolerate that.
1. pp. 97-117 of above-linked record of the 1986 hearings.
2. p 31 of the hearing record.
3. p. 35
4. p. 62
5. pp. 56-57
7. Since a couple people told me they found this point unclear: the last page of the PDF of Sessions' questionnaire contains an affadavit saying everything in the questionnaire is true and accurate to the best of his knowledge. And the questionnaire claims Sessions "personally handled" a case whose lead attorney (Joseph Rich) he eventually admitted he never met. The fact that Sessions initially doubled down, though, makes look like not an honest mistake.
8. Hebert's original testimony is on pp. 60 and 109 of the record of the hearings. His statement correcting his testimony is on p. 216.