Sessions’ Inconsistent Consistency

Just when progressives, in Congress and elsewhere, were absolutely certain that Jefferson Beauregard Sessions III was the embodiment of everything they hated because he was bent on undoing their bureaucratic shift in law, he went and did something that confused them. He…he…well, let Matt Apuzzo explain.

The Justice Department has dispatched an experienced federal hate crimes lawyer to Iowa to help prosecute a man charged with murdering a transgender high school student last year, a highly unusual move that officials said was personally initiated by Attorney General Jeff Sessions.

In taking the step, Mr. Sessions, a staunch conservative, is sending a signal that he has made a priority of fighting violence against transgender people individually, even as he has rolled back legal protections for them collectively.

Up to now, it was more likely assumed that Sessions would be the one inclined to jail transgender people for being transgender, a status that presumably was unacceptable to someone with a name that, if it was a statue, would demand to be torn down.

As a senator from Alabama, Mr. Sessions had spoken out against same-sex marriage and voted against expanding federal hate crimes laws to protect transgender people, and civil rights groups were livid when President Trump nominated him to be attorney general. They predicted he would reverse policies on discrimination, police abuses and other areas.

In many ways, Mr. Sessions has fulfilled those predictions. He declared that the Justice Department no longer considered gay or transgender people to be protected from workplace discrimination and reversed a policy encouraging schools to let transgender students use bathrooms that fit their gender identities. He abandoned objections to voter identification requirements in Texas and signaled that he would not try to force federal oversight on police departments suspected of abuses.

His votes, and usually harsh and often foolish rhetoric, as a senator suggested he was particularly antagonistic toward racial and gender equality. His actions as AG, in dismantling the bureaucratic positions that pushed extant law into entirely new realms that Congress would not in furtherance of the prior administration’s social justice agenda, confirmed it.

During the Obama administration, the Justice Department pushed the boundaries of civil rights, routinely arguing for a broad reading of the law. Mr. Sessions takes a much narrower view. When civil rights laws say “sex,” Mr. Sessions argues, they mean only that — not gender identity or sexual orientation.

So Sessions would ruin it all? Not quite all.

In March, six House members wrote Mr. Sessions and implored him to investigate a spate of killings of transgender black women. The letter got his attention, and he summoned one of his top civil rights prosecutors to a meeting about it.

He ordered civil rights prosecutors and the F.B.I. to review each of the seven cases lawmakers had asked about and to contact local authorities to offer assistance. “A lot of concerns and questions were out there about how this was occurring and what we were doing about it,” Mr. Sessions recalled in his June speech.

Much as advocates will find his actions inexplicable and inconsistent, given the view that one is either all in on issues such as transgender rights or not, Sessions addressed his position during his confirmation hearing.

“The law has been passed. The Congress has spoken,” Mr. Sessions said. “You can be sure I will enforce it.”

At the time those words were uttered, there was reason to doubt their sincerity. Sessions has now put his prosecutor where his mouth is, showing surprising principle that many doubted he had in him.

There is a clear line drawn here, that Sessions may not believe, as a matter of policy*, that transgender people should be included in Titles VII and IX, and that he will not use his office to try to push the interpretation and enforcement of those laws beyond Congress’ words and intent. Despite those who have worked tirelessly to promote an agenda that conflates discrimination on the basis of sex with gender identity and sexual orientation, that was not what the law provided, was never what Congress intended, and is not how the Supreme Court has interpreted the law.

Yet, Congress has enacted hate crime laws, which Sessions similarly voted against as the Senator from Alabama, and despite his policy opposition to the law, has acted upon.

Mr. Sessions has invoked that testimony in discussions at the Justice Department, saying that he gave Congress his word and that he intended to keep it, according to one person present, who spoke on the condition of anonymity to describe private conversations.

Frankly, who knew whether Sessions would be a man of his word? Much as his word may, in issues like the non-existent crime epidemic or war on cops, be wrong, bordering on utterly nuts, it appears that he will adhere to his promise to Congress to enforce laws it has enacted, whether he agrees with them or not. And this doesn’t only apply to the murder of a transgender person in Iowa.

A high-profile test of Mr. Sessions’s views on individual accountability is looming. Last year, Attorney General Loretta Lynch authorized prosecutors to seek civil rights charges against a New York City police officer over the death of Eric Garner. Mr. Garner died in 2014 after the officer put him in a chokehold. His gasps of “I can’t breathe” became a nationwide rallying cry for protesters criticizing police abuses — a movement that Mr. Sessions criticized.

Sessions loves cops. Sessions hates Black Lives Matter. So what is Sessions doing about this?

Prosecutors have been building their case before a grand jury, with an eye toward what would be one of the highest-profile police abuse indictments in years.

This doesn’t mean you have to stop hating Sessions, or questioning his rhetoric and policies in a great many areas of law, but maybe he’s not quite as evil and Machiavellian as he’s portrayed. It could be the blind-squirrel syndrome, but it appears more likely that he’s acting out of principle, even if it’s not always the principle one would want. Now, if he could just use the same facts as the rest of us.

*The issue here isn’t whether this is good policy or bad, but that Sessions disagreed with the policy and Congress has failed, annually, to muster the votes necessary to change the law to include discrimination on the basis of gender identity and sexual orientation. You don’t have to like it (I don’t), but it remains the fact.


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9 thoughts on “Sessions’ Inconsistent Consistency

  1. Robert A. McReynolds

    Wow, one would think that disagreeing on policy issues would preclude “the wrong thinking” person from being a good lawyer.

      1. Patrick Maupin

        I find it easiest to reason about perfectly spherical, massless lawyers.

        In a vacuum, of course. It’s easiest to reason about lawyers when they are in a vacuum.

        1. LocoYokel

          “In a vacuum, of course. It’s easiest to reason about lawyers when they are in a vacuum”

          Doesn’t exist. Lawyers will always expand to fill any vacuum.

  2. B. McLeod

    The oddity with the federal interest in this particular case is that the Iowa officials, from a very early point, took the view that this was not a “hate crime.” Very few facts of the case have been publicized (non as to motive, that I could find), so the basis of the state charging decision is unclear.

    Also, various factions of “activists” have muddied the waters as to the decedent’s “gender identity.” Family members have said he was a gay male, whose pronouns of choice were male, although on rare occasion, he dressed up as a female and used the name “Kandicee.” Some of the decedent’s friends have reported that he identified as “gender-fluid.” The story that the decedent was a “transgender female” appears to have been launched by online commentators (and a state senator) who wanted that to be the story but did not really know anything about the facts.

    Sessions appears to be trying to send a signal that it is not okay to commit violence against LGBT (or gender-fluid) people, and this is not really inconsistent with any of his other positions.

    1. SHG Post author

      Reading “signals” tends to be problematic, as we read them based on our scope of knowledge and context. That he will enforce a la regardless of his political agenda is what he said, and is consistent with what he’s doing. I can live with that.

  3. LocoYokel

    Could it be that *GASP* he believes in following the law as written and not as the passionate (on either side) would wish it was? What a fascinating concept.

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