Sen. Jeff Sessions, who is in line to become attorney general, said Tuesday that the law “absolutely” prohibits waterboarding and offered no hints at any legal workaround that would allow President-elect Donald Trump to bring back the interrogation tactic.
Sessions, R-Ala. and one of Trump’s earliest supporters, told the Senate Judiciary Committee that he would be an independent-minded attorney general who would say no to Trump. He said he did not support an outright ban on Muslim immigration and promised to defend the nation’s laws — even in areas like abortion and gay rights where he has made his opposition known over a long, conservative career.
Senate Democrats do not have the votes, by themselves, to block Sessions’ confirmation, and they did little in the hearing Tuesday to try. They did not vigorously confront Sessions on allegations of racism from three decades ago. Instead, they opted to use the hearings to try to establish the early legal boundaries of a Trump administration.
Sessions offered no support for banning Muslim immigration, as Trump frequently suggested during the presidential campaign. “I have no belief and do not support the idea that Muslims as a religious group should be denied admission to the United States,” Sessions said. But he noted that Trump has since clarified that restriction should be placed on immigration from countries that support terrorism, which Sessions said was lawful.
Trump also has promised to bring back waterboarding, an interrogation tactic that the CIA used against suspected terrorists in the years after the Sept. 11, 2001, attacks. As a senator, Sessions supported the legal analysis that authorized waterboarding and said that “it worked” in extracting information.
Federal law bans waterboarding, but Trump’s comments have raised questions about whether he will try to find a way to sidestep that law. One option would be to declare the law an unconstitutional intrusion on the president’s authority as commander-in-chief. Sessions did not address that on Tuesday, but said waterboarding was “absolutely improper and illegal.” Those remarks provide a steep new legal hurdle that would make it extraordinarily difficult, if not impossible, for a Trump administration to reinstate it.
Sessions was a top surrogate for Trump during a campaign in which “lock her up!” was a rallying cry against Hillary Clinton. Sessions said that if there were lingering investigations into Clinton’s use of a private email server or her family foundation, he would recuse himself.
“You intend to recuse yourself from both the Clinton email matter and any investigation involving the Clinton foundation, if there are any?” Sen. Charles E. Grassley asked.
“Yes,” Sessions said. He added: “This country doesn’t punish its political enemies.”
The FBI’s investigation into Clinton’s email server is closed. And while a preliminary investigation into the Clinton Foundation is open, senior career officials at the FBI and Department of Justice have said there is little basis for the case to move forward.
When Sessions last faced the Judiciary Committee, it was three decades ago for a seat on the federal bench. His nomination failed, in part over allegations that he had described civil rights groups as “un-American” and that he suggested a white lawyer was a disgrace to his race for representing African-Americans. At the time, he said his comments were misunderstood or taken out of context. He offered a more forceful denial this time: “I never declared that the NAACP was ‘un-American’ or that a civil rights attorney was a ‘disgrace to his race,'” Sessions said.
In 1986 he described it this way: The NAACP and other civil rights organizations, when they leave the basic discriminatory questions and start getting into matters such as foreign policy and things of that nature and other political issues — and that is probably something I should not have said, but I really did not mean any harm by it.
Sessions assured his Senate colleagues that he would strictly adhere to the Constitution and stand up to the president if needed. He’s been consistent for years that senators should apply that test to Department of Justice nominees.
The Republican theme of the hearing is that Sessions is a known entity, and he reinforced that in his opening remarks. “You know who I am,” he said. “You know what I believe in.”
That won’t ease the fears of many Democrats. Sessions has been a far-right conservative Republican for decades and believes that the Justice Department has overreached in its enforcement of civil rights laws.
Sen. Charles E. Grassley of Iowa, the Republican chairman of the Judiciary Committee, kicked things off with a reminder that Sessions is not simply a nominee. He is a colleague. “We know him well,” he said.
That may be a way to counter allegations that Sessions holds racist views. Sen. Diane Feinstein, D-Calif., the new ranking Democrat on the committee, offered a rejoinder. “We’re not being asked to evaluate him as a senator,” she said. “We’re being asked to evaluate him as attorney general.”
Feinstein criticized his vote against extending hate crime laws to cover gay men and lesbians, his support of waterboarding and his work to defeat bipartisan immigration bills. She questioned whether he would support laws that he voted against.
She also said that it was important for Sessions to make clear that he would “tell the president no when necessary.”
The last time Sessions faced a confirmation hearing, it did not end well for him. In 1986, President Ronald Reagan nominated Sessions for a federal judgeship. But accusations of racist comments and questions about a racially charged voter-fraud prosecution torpedoed his nomination. Witnesses testified that Sessions had, among other things, referred to the American Civil Liberties Union and the NAACP as “un-American” for “trying to force civil rights down the throats of people.”
Back then, he seemed unprepared for such questions. This time, Republicans are leaving nothing to chance and have lined up African-American surrogates to speak on his behalf.
But Democrats are ready to counter those witnesses. In a rare break with tradition, Booker will testify against his fellow senator because of Sessions’ record on civil rights issues. Rep. John Lewis, D-Ga., a hero of the civil rights movement, is also set to speak out against the nomination.
In his opening remarks, Sessions is to expected to focus less on his civil rights record and more on trying to assure senators that he would “be willing to tell the president ‘no’ if he overreaches.”
The attorney general “cannot be a mere rubber stamp to any idea the president has,” Sessions will say, according to prepared remarks released by the Trump transition team.
His assurances are aimed at critics who charge he would lack the independence to rein in Trump if the incoming president moves ahead with a series of incendiary campaign pledges, like reinstituting torture or temporarily banning Muslim immigrants.
At the same time, Sessions plans to emphasize the law-and-order themes he was known for in the Senate.
Trump’s former campaign manager once complained that journalists took the candidate “so literally.” Democrats can’t force Trump to testify under oath about whether he was serious about wanting to ban Muslim immigrants or require them to register with the government, deport millions of immigrants, reauthorize waterboarding or appoint a special prosecutor to investigate Hillary Clinton. But they can ask Sessions.
Look for Democrats to try to use Sessions to frame the legal limits of a Trump presidency.
Besides the hot-button issues, listen to how Sessions answers questions about drug policy and mandatory-minimum sentences. For years, the Department of Justice has essentially agreed not to interfere with states that legalized marijuana, and Sessions has steadfastly opposed that policy. His comments Tuesday will signal whether he plans a confrontation with states like Colorado and California, or whether he might soften his stance as attorney general.
Republicans will probably try to bring up areas where Sessions has found common ground with Democrats, such as reducing the sentencing disparity between cases involving crack cocaine and those involving powder cocaine.
Sessions has a tough-on-crime record. Expect him to frame that record in terms of white-collar corporate crime, which liberals have said too often went unpunished under President Barack Obama.
Sessions has been in the Senate for nearly 20 years and is liked by his colleagues. Moderate Republicans and at least one Democrat have already said that they will vote for him, which all but guarantees his confirmation. That does not mean Democrats will hold their fire, but they are likely to mount their most vigorous offensive against other nominees, including Rep. Tom Price, a Georgia Republican who is Trump’s choice to be health secretary.