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Jeff Sessions, Trump’s attorney general, will be a massive setback for civil rights

A man who once allegedly said the KKK “was okay until I found out they smoked pot” will guide the nation’s top law enforcement agency. But he said he was taken out of context.

Sen. Jeff Sessions meets with President-elect Donald Trump.
Sen. Jeff Sessions meets with President-elect Donald Trump.
Kevin Hagen/Getty Images

If there was ever any doubt on where President Donald Trump will take the country on issues like civil rights, criminal justice, and immigration, Alabama Sen. Jeff Sessions’s nomination for attorney general — confirmed by the Senate, mostly along party lines, on Wednesday — should put all of those doubts to an end.

On all of these issues, Sessions has been extremely conservative. He’s opposed reforms to reduce mass incarceration, proposed stringent crackdowns on immigration, and he even has a history of racist remarks that ended his hopes of a federal judgeship. And that’s not even getting to other issues, from voting rights to discrimination against LGBTQ people, where Sessions has been equally conservative.

Sessions, for his part, has denied some of the worst accusations against him, particularly over allegedly racist remarks he says were jokes and taken out of context. “I did not harbor the kind of animosities and race-based discrimination ideas that I was accused of,” Sessions said at a Senate nomination hearing.

As attorney general, Sessions won’t be able to set law, but he will have a lot of power in guiding how the law is interpreted and enforced. Particularly on criminal justice and voting rights, this makes Sessions a big threat for reformers and civil rights advocates who made gains during President Barack Obama’s time in office — but will likely see many of those gains erased under Sessions.

But Sessions’s nomination is also not much of a surprise. On the campaign trail, Sessions’s very conservative views on immigration made him a close Trump ally. And since he previously served as a federal prosecutor and Alabama’s attorney general, he’s a natural fit, in terms of career qualifications, for the job of US attorney general.

Indeed, Trump’s team suggested as much in a statement about the possibility of a Sessions’s nomination back in November: “While nothing has been finalized and he is still talking with others as he forms his cabinet, the President-elect has been unbelievably impressed with Senator Sessions and his phenomenal record as Alabama’s Attorney General and U.S. Attorney. It is no wonder the people of Alabama re-elected him without opposition.”

Whatever Trump’s impressions of Sessions may be, the nomination ended up hugely controversial in the Senate — leading Republican Majority Leader Mitch McConnell of Kentucky to take the extraordinary move of silencing Sen. Elizabeth Warren, a Democrat from Massachusetts who was one of Sessions’s staunchest critics. There’s a reason for that: Not only is Sessions’s record very much to the right, but it’s also mired by several controversies in which Sessions was accused of explicit racism.

Sessions has a very conservative record on issues the Department of Justice oversees

The US Department of Justice seal. Ramin Talaie/Getty Images

Sessions has a long conservative record, one that suggests he would move the Justice Department to the right on issues ranging from crime to immigration.

For one, Sessions has time and time again proven to be “tough on crime,” opposing efforts to roll back tough prison sentences that contributed to mass incarceration.

Over the past few years, a bipartisan group of senators has been working on legislation that would reduce mandatory minimum prison sentences for nonviolent offenders and give judges more sentencing discretion in cases involving low-level drug offenders. But the legislation never really got anywhere in the Senate, in large part because Sessions, along with Trump allies and Republican Sens. Tom Cotton and Ted Cruz, opposed the bill.

Sessions used typical “tough on crime” rhetoric to justify his opposition, arguing that the legislation would send a signal to the courts and criminals that their punishments aren’t being taken seriously anymore. As he put it, it would “send a message to judges and prosecutors that we’re not interested in people serving sentences anymore” when “the crime rate is beginning to go up.” (The FBI shows the homicide rate ticked up in 2015, but it’s still at half of what it was at its peak in the 1990s.)

Sessions has shown some capacity for reform. He co-sponsored the Fair Sentencing Act of 2010, which raised the threshold for a five-year mandatory minimum for possession of crack cocaine from 5 grams to 28. That brought it a bit closer to the 500-gram threshold for powder cocaine, which is pharmacologically similar to crack. And it helped reduce one of the major drivers of racial disparities in the criminal justice system, because crack is more common in black communities than powder cocaine. (There are questions, however, about whether Sessions’s involvement was in reality not about genuine reform but about making sure the disparity between crack and powder cocaine wasn’t closed too much.)

But when it came to bigger criminal justice reforms in the past couple years, Sessions helped kill the bill that would have reversed some of the broader criminal justice policies that contributed to mass incarceration.

This reflects a long-held “tough on crime” and “tough on drugs” stance that Sessions has held for much of his career. A recent analysis by the Brennan Center for Justice, a criminal justice reform group, found that as a federal prosecutor in Alabama, 40 percent of Sessions’s convictions were drug-related — about double the rate for other Alabama federal prosecutors. From very early on in his career, then, Sessions was about cracking down on crime and particularly drugs in a punitive way.

On voting rights, Sessions has also toed the conservative line. In the 1980s, Sessions prosecuted Albert Turner for alleged voter fraud after Turner helped black voters register in Alabama — earning the nickname “Mr. Voter Registration.” The charges fell flat, with a jury deliberating for less than three hours before finding Turner not guilty of all counts of mail fraud, altering absentee ballots, and conspiracy to vote more than once. This moment is very telling: These kinds of court challenges would be tried time and time again by conservative lawmakers and prosecutors, even in 2016, to stop black voter registration efforts.

Then, when the Supreme Court in 2013 struck down parts of the Voting Rights Act and effectively allowed states with histories of racial discrimination to pass new voting restrictions, Sessions denied that Shelby County, Alabama — which brought the challenge to the Supreme Court — ever had a history of voter discrimination. “Shelby County has never had a history of denying voters and certainly not now,” he claimed.

Shelby County and Alabama have a long history of discrimination of all kinds. And the Supreme Court’s decision let Alabama pass a strict voter ID law in time for the 2016 election — a policy that makes it harder for minority voters in particular to cast a ballot, since they’re much more likely to lack the flexible job hours and means of transportation to obtain a voter ID.

But Sessions, in fact, previously admitted to calling the Voting Rights Act a “piece of intrusive legislation.” And after the Supreme Court’s ruling, he opposed efforts to update the law so the federal government could continue to oversee voting laws in places with histories of discrimination.

Sessions is also very conservative on immigration, which is one of the reasons he came around to supporting Trump (who based much of his campaign on being “tough” on immigration) fairly early in the Republican primary. Sessions, for one, helped shape Trump’s immigration plan, which cracks down on both illegal and legal immigration.

And when it comes to LGBTQ issues, the Human Rights Campaign recently gave Sessions a flat 0 percent score, in large part because he opposed every proposal to protect LGBTQ people from discrimination in the workplace, housing, and other settings. Sessions also questioned whether anti-LGBTQ discrimination even exists, arguing during discussions of a federal hate crime law that “I just don't see it.” And he opposes same-sex marriage to this day, previously arguing that the US Supreme Court’s decision to legalize same-sex marriage nationwide was “unconstitutional.”

Sessions also has a history of racist remarks

Jeff Sessions campaigns for Donald Trump. Jeff Swensen/Getty Images

Before he became a US senator in 1995, Sessions served as a federal prosecutor in the 1970s and 1980s. He was later elected attorney general of Alabama in the 1990s.

In between those two jobs, in 1986, then-President Ronald Reagan nominated Sessions to serve as a federal judge in Southern Alabama. The nomination quickly turned controversial — and was rejected — as multiple witnesses testified that Sessions had made racist remarks.

A prosecutor, J. Gerald Hebert, told Sessions about the time a federal judge called a prominent white lawyer “a disgrace to his race.” Sessions replied, “Well, maybe he is.” Hebert also claimed that Sessions once said the ACLU and NAACP are “un-American” for “trying to force civil rights down the throats of people.”

Thomas Figures, a black prosecutor, said Sessions had called him “boy” and told him to be careful with what he said to “white folks.” Figures also claimed that Sessions said that the KKK “was okay until I found out they smoked pot.”

The accusations ultimately led the Senate Judiciary Committee to reject Sessions’s nomination.

During Senate hearings for his attorney general nomination, Sessions denied some of the accusations, arguing that he abhors the KKK and will work to defend people’s civil rights. In his defense, he cited a case in which as a federal prosecutor in the 1980s he helped prosecute a KKK member for killing a black teen — although his actual role in prosecuting the case has been recently questioned.

But in the past Sessions has acknowledged most of the accusations, claiming that many of them were jokes and taken out of context. “I am loose with my tongue on occasion, and I may have said something similar to that or could be interpreted to that,” he testified in 1986.

Sessions also claims he did some promising civil rights work as a prosecutor. He told the National Journal in 2009, “I signed 10 pleadings attacking segregation or the remnants of segregation, where we as part of the Department of Justice, we sought desegregation remedies — the takeover of school systems, redrawing lines — all those things that I was allowed to participate in supporting.” And in a questionnaire filed to the Senate Judiciary Committee for his nomination, Sessions cited four civil rights cases as among the 10 most significant cases he took part in “personally.”

But civil rights lawyers who actually litigated these cases have disputed Sessions’s close involvement. As three civil rights lawyers wrote in the Washington Post, “We worked in the Justice Department’s Civil Rights Division, which brought those lawsuits; we handled three of the four ourselves. We can state categorically that Sessions had no substantive involvement in any of them. He did what any U.S. attorney would have had to do: He signed his name on the complaint, and we added his name on any motions or briefs. That’s it.”

Sessions will likely shift the Justice Department sharply to the right

If Jeff Sessions's nomination is accepted, he'll replace US Attorney General Loretta Lynch.
If Jeff Sessions’s nomination is accepted, he’ll replace US Attorney General Loretta Lynch.
Mark Wilson/Getty Images

Based on this record, people should expect the Justice Department to move sharply to the right once Sessions takes over.

One of Sessions’s biggest jobs as attorney general will be guiding the massive network of federal prosecutors, which sprawls all across the US. In that role, Sessions could try to double down on mass incarceration. He could, for example, rescind instructions to federal prosecutors to incarcerate fewer low-level drug offenders — something that his record suggests he’d be very willing to do.

If Sessions continues his “tough on crime” streak on policing issues, he also may stop investigations into police. Under the Obama administration, the Justice Department carried out nearly two dozen investigations into local police departments — more than any of President Obama’s predecessors — typically in response to high-profile police shootings. The investigations uncovered all sorts of abuses and constitutional rights violations in cities ranging from Baltimore to Ferguson, Missouri. Sessions could bring an end to these investigations.

On voting rights, Sessions may not try to challenge Southern states’ voting restrictions in the same way the Obama administration was willing to. This may be a return to the Bush administration, which essentially treated civil rights enforcement as a joke and never took accusations of voter suppression or other civil rights violations seriously. In fact, Sessions could guide the Justice Department to focus on voter fraud, which, even though it’s extremely rare, Republicans over the past few years have cited as part of an effort to make voting more difficult — typically in a way that disproportionately hurts minority voters.

On immigration, Sessions could make Trump’s deportation plans more likely. Since the Justice Department runs the immigrant court system, Sessions could make it easier — by staffing up the court, for example — to deport 2 to 3 million undocumented immigrants, as Trump proposed.

And on LGBTQ issues, Sessions wouldn’t have as much power as he would in other realms. But he could, for example, reverse the Justice Department’s LGBTQ-inclusive interpretation of federal civil rights laws and, in doing so, help halt the push for courts to recognize that LGBTQ people are protected from discrimination in the workplace, housing, schools, and other settings under federal law.

Sessions’s nomination validates many critics’ fears of Trump

President-elect Donald Trump meets with Republicans on Capitol Hill. Mark Wilson/Getty Images

When you put this all together, Sessions’s nomination appears to validate many Trump critics’ greatest fears. His administration will go “tough on crime.” It won’t care much for the civil rights of minority Americans. It will try to be “tough” on immigration. And given Sessions’s history of racist remarks, it certainly doesn’t appear that Trump is too sorry about his own history of racist comments on the campaign trail and beforehand.

Indeed, some critics immediately voiced deep concerns. Rep. Luis Gutierrez, an Illinois Democrat, quickly released a statement condemning Sessions’s nomination: “If you have nostalgia for the days when blacks kept quiet, gays were in the closet, immigrants were invisible, and women stayed in the kitchen, Senator Jefferson Beauregard Sessions is your man. No senator has fought harder against the hopes and aspirations of Latinos, immigrants, and people of color than Sen. Sessions.”

There are some open questions. It’s unclear, for example, if Sessions will try to crack down on states that have legalized marijuana through the threat of federal law, which still maintains that pot is illegal. The Obama administration took a hands-off approach to states that legalized. And Trump has suggested he would follow a similar path, saying that pot legalization should be left to the states. But Sessions, an opponent of legalization who once said “good people don’t smoke marijuana,” may take a hard-line stance — cracking down on the now eight legal pot states and many more medical marijuana states in an effort to dismantle their systems of legalization.

And it remains to be seen whether Sessions will let Trump use the Justice Department as a political tool of the White House rather than keep it as a quasi-independent agency, potentially letting Trump leverage the major law enforcement arm of the federal government for political gain.

But even if Sessions doesn’t take a Trump-approved or conservative approach on every issue, it’s likely he would move the Justice Department sharply to the right — in a way that could affect anyone from federal prisoners to undocumented immigrants to minority voters.

Watch: Donald Trump and the rise of American authoritarianism

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