By Frank Bowman
The endless fever dream of the Trump era has no stranger aspect than our for-now-at-least Attorney General Jefferson Beauregard Sessions. On the one hand, from the point of criminal justice policy, he is in the running as objectively the worst Attorney General of the last half-century. It’s not merely that he is conservative on criminal justice issues. Any Republican Attorney General in a post-Obama Republican presidency would surely have retrenched somewhat on some of Obama’s liberalizing initiatives.
The truly distressing aspect of Sessions’ tenure is that he combines two mutually reinforcing tendencies. The first is Sessions’ own attitudes to crime. His views on crime and punishment were, it seems, formed in the 1980s when a core tenet of social conservatism was that the only answer to crime in general, and drug crime in particular, was punishment in the form of ever longer terms of imprisonment. The result — mass incarceration at levels unparalleled in what used to be called the free world — has been so unpalatable, and its human and financial costs so obviously disproportionate to its benefits, that even most conservatives have recoiled and actively begun searching for more humane and cost-effective means of addressing crime. Organizations like “Right on Crime” have been proposing conservative alternatives to mass incarceration, and have had some success implementing them in the states. Such efforts are even endorsed by liberal boogiemen like Newt Gingrich and the Koch brothers.
Indeed, criminal justice reform is one of the few tough policy areas on which there is a large degree of agreement between thoughtful conservatives, moderates, and liberals. And yet we have in Jeff Sessions one of the last diehard paleoconservative tough-on-crime guys. He and a handful of like-minded cavemen – a pejorative term I do not use lightly — notably including Sen. Tom Cotton, seem impervious to either moral or evidence-based arguments against thoughtless “toughness.” By sticking together and relying on Sen. McConnell’s refusal to allow consideration of any measure without near-universal Republican support, they prevented the passage of even a modest sentencing reform bill in the last congress. In doing so, they thwarted the wishes of the majority of their Republican colleagues, not to speak of Democrats. Sessions’ opposition to a new effort at such legislation is again proving an impediment and has stirred the wrath even of so reliable a pillar of the Republican right as Judiciary Committee chairman Charles Grassley.
Worse, Sessions’ personal rigidity is meshing with the near-official Trump Administration policy of voiding any Obama policy initiative, regardless of merit. Sessions is reversing all the Obama-era ameliorations of prosecution policy on drug and other cases, and threatening to upend the federal-state ceasefire regarding differing treatment of marijuana. It also appears that the Sessions Justice Department has effectively gutted Obama-era federal prison education initiatives. And the beat goes on.
And yet, as dreadful as Sessions is on substance, he remains, perversely, the single flimsy barrier against removal of Robert Mueller and the shutdown of the investigation Mueller heads. Sessions’ one possible redeeming feature is his respect for the Justice Department as an institution. He has compromised the Department on more than one occasion, most recently in his firing of former FBI Deputy Director McCabe. But he seems to be clinging to some shreds of personal and institutional self-respect. Just his week, Sessions appears to have done another good thing, in deflecting the call by House Republicans for a second special prosecutor to look into Hillary Clinton, the dossier, and who knows what else by instead referring the investigation of all such matters to the DOJ Inspector General and to a general review by, John W. Huber, the U.S. Attorney for the District of Utah.
The assignment of Huber to be something more than a regular U.S. Attorney and something less than a “special counsel” is an interesting move. Presumably, Sessions hopes that Huber’s work will check the cacaphony from House Republicans without unleashing a new special counsel operating at cross-purposes with Mueller. Likewise, it may be that Sessions hopes that, if Huber finds no reason for more extensive investigation, that will carry weight with Orin Hatch, who himself carries considerable heft in paleoconservative circles.
I have had hard things to say of Mr. Sessions before, and doubtless will again. But at least as regards Mueller and related matters, he is — tenuously — clinging to his reputation as a Justice Department institutionalist. Whether that will be enough in the end to redeem him, and the rest of us, remains to be seen.