During a confirmation hearing last month, members of the Senate Judiciary Committee asked Jeff Sessions, President Donald Trump’s nominee to be attorney general, hypothetical questions about standing up to the president. The Alabama senator said he would not be a “mere rubber stamp for the president.”
Now, because of Trump’s executive order to temporarily bar people from seven Muslim countries, and all refugees, from entering the United States, the question is no longer hypothetical.
At a contentious meeting Tuesday, Judiciary Committee members speculated about how Sessions, a former state attorney general, would handle the executive order as federal courts in five states have ordered a halt to implementation of the order saying it is likely illegal and unconstitutional. A committee vote was delayed until Wednesday, when the committee approved his nomination in an 11-9 party-line vote.
Rather than speculate about what Sessions would do, the full Senate should not move ahead with his nomination until Sessions answers those questions, not in writing, but in front the Judiciary Committee, where follow-up questions can be asked and answered.
We know that Republican lawmakers are loath to go down this road, but the legality of the executive order is the reality that Sessions would face on his first day as attorney general, and Americans deserve to know whether he will stand up to a president who, federal courts have said, is very likely breaking the law and violating the Constitution.
Sessions would likely offer bland language about following the law, but senators must dig deeper to get specific answers about this specific case.
Will Sessions, who helped craft Trump’s immigration policy, enforce, and allow other federal agencies to enforce, the president’s executive order? If his answer is yes, will he direct lawyers within the Justice Department to defend the order in court? Will he order government officials to violate temporary stays of the order that have been issued by federal courts?
If the answers to these questions are yes, Sessions is not qualified to be attorney general because his allegiance would be to Trump and not to the Constitution and laws that he would swear to uphold.
This is the conclusion Sen. Angus King has reached. “I believe that [the attorney general] will need to stand up to the President when they believe he is wrong,” King said in a statement Monday announcing that he will vote against Sessions. “While I certainly have concerns with Senator Sessions’ record, ultimately, I am concerned that he will not approach this critical role with the independence that is required, and that, as a result, the President could exercise an unchallenged influence in the affairs of the Justice Department, which must often take objective positions that may be at variance with the views of the Administration.”
It is also the standard Sessions championed in 2015. During her confirmation hearing to become deputy attorney general, Sessions asked this very question to Sally Yates, President Barack Obama’s nominee. “Do you think the attorney general has a responsibility to say no to the president if he asks for something that is improper?” the Alabama senator asked. “[I]f the views the president wants to execute are unlawful, should the attorney general or the deputy attorney general say no?”
“Senator, I believe that the attorney general or deputy attorney general has an obligation to follow the law and the Constitution and to give their independent legal advice to the president,” Yates responded.
Trump fired Yates Monday night for doing just that.
Yates directed Justice Department lawyers not to defend Trump’s executive order because she did not believe it was lawful. “I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right,” she wrote in a letter to top Justice Department lawyers. “At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.”
Trump fired her hours later. “Ms. Yates is an Obama administration appointee who is weak on borders and very weak on illegal immigration,” the White House said in a statement Monday night.
Trump then appointed Dana J. Boente, the U.S. attorney for the Eastern District of Virginia, as acting attorney general. Boente promptly rescinded Yates’ order.
The American people, through their representatives in the Senate, need to know whether Sessions will follow the model of Boente or Yates.