No Senator has any excuse for confirming Sessions
Before I get into the meat of this post, I want to explain why I'm writing it: to show there is not one person in the Senate who has the slightest excuse to vote to confirm Jeff Sessions as US attorney general. Everything I describe here is a matter of public record. Most people don't know it because they're not as obsessive as I am, but if you're a Senator, this is your job. And if you're too busy with all the other things you have to do as a part of your job, this is why you have staff. There is no excuse.
In my first post on Sessions, I went to the transcripts of Sessions' 1986 confirmation hearings for a Federal judgeship to show that the revisionist attempts to portray Sessions as a civil rights hero are nonsense. Now I'm going to draw from the same transcripts to show why the defenses of Sessions' behavior in the "Perry County Three" case, Sessions' failed voter fraud case against three civil rights activists, fails.
Much was made, in his more recent confirmation hearings, about the fact that African-Americans originally asked for the investigation into the case. The transcripts contain abundant evidence that Sessions' prosecution was selective, that he ignored similar allegations of voting fraud against whites. But I'm not going to focus on that here, because the initial motivation for the investigation doesn't justify what happened afterwards. As one of the defense lawyers involved in the case put it during the 1986 hearings, the issue is "not whether the case should have been prosecuted, but how it was prosecuted".1
In fact, the hearings revealed clear evidence of prosecutorial misconduct by Sessions' office. For example—and this is just one example—according to an affidavit by another defense attorney in the Perry County case:2
It is standard pretrial practice for prosecutors to turn over to the defense FBI notes of interviews with witnesses. These notes are called "302's." If such notes are at all exculpatory, the prosecutors must turn them over. In the case of the witness Alma Price, the FBI conducted three interviews. In the first, on September 25, 1984, Ms. Price to the FBI that she voted for a candidate named Reese Billingslea and did not make any changes to her ballot. (See Appendix G.) (Her ballot reflected a change beside the name of Reese Billingslea.) According to the notes of the second interview, on October 5, 1984, Ms. Price explained that, though she did not make the change, she directed Albert Turner, one of the defendants, to do so and that he did so in her presence. (See Appendix N.) On December 13, 1984, the FBI conducted a third interview, this time to get the witness to confirm the contents of the first interview. (See Appendix I.) Mr. Sessions' office produced the FBI 302's of the September 25 and December 13 interviews, but not that of the October 5 interview -- the one that was plainly exculpatory. The existence of that 302 was not disclosed even after the witness was put on the stand by the U.S. Attorney and adopted the exculpatory version she had previously given. It was only during subsequent cross-examination of an FBI agent that the defense counsel discovered the missing 302. Thus, despite two requests by the defense, one of which specifically requested prior to trial the 302's of Alma Price by name, and the prosecution's constitutional duty to honor those requests, Mr. Sessions failed to produce material tending to show a defendant's complete innocence of one of the counts in the indictment. (See also, Appendices J, K, L.)
The "appendices" listed in parentheses are the 302s in question plus other official court documents corroborating the statements in the affidavit. The hearing transcripts contain other examples like this, but this may be the most blatant and well-documented example (at least in the hearing transcripts).
During the trial, Sessions' team also tried to argue that activities protected by the Voting Rights Act were actually voter fraud:3
The question came up at trial, what exactly was Mr. Sessions' legal theory that he was proceeding with that would allow him to go forward with ballots that did not have unconsented alterations? And he explained that theory through his assistant at trial.
What happened was that I sought to clarify what the Government's theory was in the transcript at pages 17 to 18, and I asked, "What about a situation where a wife says to her husband or a husband to his wife, 'I don't know how to vote in this case, you tell me how to vote and I will vote that way'." And I said "the U.S. Attorney's office has indicated," as it had on the phone, "that the type of situation would fall within their idea of illegality under the indictment."
Mr. Sessions' assistant then stood up and answered to the court, to my question, "is that within their theory of voter fraud," by saying yes, "that is one of our theories." In other words, when, for example, illiterate absentee voter Reaner Green told Mr. Hogue—and this is a quote from her testimony—"I want to vote the way y'all are voting," and then he filled out her ballot that way because she was illiterate, Mr. Sessions expressly considered that to be an illegality and proceeded against the defendants on that theory.
I think I need not remind the committee that that very type of voter assistance of illiterate voters is not illegal. In fact, that activity was protected both by the 1982 amendments to the Voting Rights Act and in fact has been held for about 20 years to be constitutionally protected activity.
This quote comes from James Liebman, a law professor who was involved in the case on the defense's side. The relevant trial transcripts do not seem to have made it into the official record of the 1986 hearing, but it appears that during the hearing the senators on the Judiciary Committee had access to the trial transcripts, and no one disputed the description of what had happened at the trial.
In fact, after giving his testimony, Liebman was questioned by Senator Jeremiah Denton, a member of the Judiciary Committee who emerged as one of Sessions' most vocal defenders. Denton, however, did not address at all the issue of Sessions' prosecution being based on an absurd and unconstitutional legal theory—aside from briefly dismissing much of what Liebman had to say as retrying the Perry County case.
That was an odd position for Denton to take—there is something to be said for not retrying criminal cases in senate hearings, but if that's how Denton felt, if he wanted to take the case at face value, the fact is that at face value the case was deeply troubling. The bottom line is that Sessions prosecuted three civil rights activists for voter fraud—a common rationalization for disenfranchising African-Americans to this day—and a jury had little trouble concluding the case had no merit. I am writing about the case in such detail only because Sessions' defenders are now trying to spin it into evidence of how responsive he was to the concerns of the African-American community he was supposed to be serving.
Towards the end of the hearings, Denton made a closing statement. Among other things, he claimed the allegations of misconduct by Sessions in the “Perry County Three” case had been totally disproved by the testimony of LaVon Phillips, who acted as a legal assistant to the county DA on the case.4 After noticing this claim, I carefully read Phillips’ testimony, and it does no such thing.5 He says he never saw the FBI trying to intimidate witnesses—but hardly claimed to have been present at every interview. Nor did he dispute, as far as I can find, some of the instances of prosecutorial misconduct by Sessions’ office described by other witnesses.
It's unfortunate that coverage of Sessions' 1986 hearings chose to focus on racist comments he'd made in private, rather than the appalling way he handled the prosecution of the Perry County Three. I understand why this happened—racist comments are a lot easier to explain than prosecutorial misconduct, especially when writing for a lay audience that doesn't know anything about legal ethics. But the danger of Jeff Sessions' nomination for Attorney General is not that he'll make racist comments in private. It's that he'll abuse his power to attack the foundations of our democracy. Donald Trump has left little doubt that that's what he's hoping for out of an Attorney General. The question now is whether the Senate will cooperate.
1. p. 493
2. pp. 369-370
3. p. 194
4. p. 520
5. p. 272ff