In 1997, a state judge in Birmingham, Ala., dismissed charges brought against Tieco, an industrial equipment manufacturer, for cheating one of its corporate customers. In his order, the judge adopted the defense's position that the Alabama attorney general's office had committed "serious and wholesale prosecutorial misconduct" that was "so pronounced and persistent that it permeates the entire atmosphere for this prosecution."
Moments after being publicly shamed, the attorney general in question gave an impromptu interview in the courthouse hallway. His central concern was not, as one might expect, his reputation, but what he saw as unfair disparagement of prosecutors.
"Charges like 'prosecutorial misconduct' offend me," said Jeff Sessions, now a United States senator and President-elect Donald Trump's choice for attorney general. Judges shouldn't use such language, Sessions argued, because "if prosecutors are continued to be abused by defense lawyers, it can chill their willingness to take on high-profile, complex cases."
Once confirmation hearings begin, anti-Trump forces may want to save their ammunition for the climate-change deniers, the plutocrats, the bizarrely unqualified, or the nominees hostile to their intended departments. In this crowd, Sessions, an attorney general nominee who has actually been an attorney general, could seem like the grown-up keeping an eye on the playground.
But he's as dangerous as all the others. Few of Trump's nominees would bring to their jobs a fixed ideology as poisonous as what Sessions would bring to the Department of Justice. As attorney general, Sessions would oversee federal prosecutors and, most likely, would have a say in whom the president appoints to the federal bench. From his perch he could further his conviction that "prosecutorial misconduct" is nothing more than slander.
The problem is not only that Sessions has a soft spot for prosecutors, a typical position for a conservative Republican. What sets him apart is his belief that prosecutors are at a disadvantage, indeed are something of an endangered species, overrun by the vicious defense bar.
In the Tieco case, Sessions' office was accused of sharing evidence that it had seized for its prosecution with Tieco's rival, USX, which then sued Tieco in civil court. While litigation was still ongoing, Teico's lawyers filed an ethics complaint with the Alabama Ethics Commission. Although the commission ultimately decided that it had "insufficient facts" to proceed, Sessions' response to the affair was, once more, revealing.
"People who file these kind of complaints need to be asking some real hard questions of themselves, if they're capable of that, because it's really an unhealthy process," Sessions said. "I think it threatens and complicates the ability of good investigators to do their job."
Faced with apparent gross misconduct by a prosecutor, the defense, according to Sessions, should hold its fire.
Sessions has returned to this theme repeatedly. In 2010, as a member of the Senate Judiciary Committee, he worried during one hearing that "a lot of these powerful defendants are outgunning the prosecutors." It was a strange tangent, which came during his examination of John A. Gibney, a nominee for the federal bench in Virginia. The two men had been discussing arbitration for workplace disputes, a subject that had nothing to do with criminal defendants. Sessions was gathering his thoughts, and before he moved on to the topic of a judge's role when he sees an ineffective counsel, he tossed off his comment about "outgunned" prosecutors.
In our adversarial legal system, defense attorneys are supposed to do all they can for their clients. Anything less is malpractice. But Sessions doesn't see it that way. And when opposing judicial nominees, his favorite charge — it's practically a mantra — is that they are biased against prosecutors.
Sessions' complaints are often leveled against nominees who are people of color.
Before Susan Oki Mollway, an Asian American woman, was confirmed to the federal judiciary in 1998, Sessions worried that based on her "background," including her "activities with the ACLU in Hawaii," she could be expected to have the "liberal, activist, anti-law enforcement mentality" typical of the 9th Circuit, for which she was being considered.
Frederica Massiah-Jackson would have been the first female African American federal judge in her district, but she eventually withdrew her nomination. "I had a feeling, an intuition, that there was something unhealthy about this nominee, that there was perhaps an unstated bias against prosecutors and law enforcement," Sessions said about her.
It's certainly not beyond the pale to worry about bias. What's troubling is Sessions' dog-whistling about nominees' "background," or their being "unhealthy," as if those who care about defendants' rights, or civil liberties, are an infection in the system.
In opposing defense attorney James Cole's nomination to be deputy attorney general in 2011, Sessions said, "It is all right to defend an unpopular person, but 13 to 16 members of the Department of Justice, political appointees by this administration, have had as their background defending terrorists." Is it just me, or does somebody who says it's "all right to defend an unpopular person" clearly mean the exact opposite?
For his upcoming confirmation hearing, Sessions filled out a questionnaire in which he indicated that he sometimes did criminal defense while in private practice. But a Westlaw search turned up no court orders with him listed as defense attorney. That aside, Sessions identifies exclusively with prosecutors. I couldn't find a single example of Sessions stating in public that a prosecutor was too zealous, or that a defendant needed more vigorous representation. For Trump's intended attorney general, the arc of justice always bends toward the state.