Former Chief Nominations Counsel Opposes Sessions for Attorney General

Written Statement of Lisa Graves on Behalf of the Center for Media and Democracy Submitted to the U.S. Senate Committee on the Judiciary

Hearing on the Nomination of Senator Jeff Sessions to Be Attorney General of the United States

January 10, 2017

Chairman Grassley, Ranking Member Leahy, and Members of the Committee:

I respectfully submit this statement for the record in opposition to the confirmation of Senator Jeff Sessions to be the 84^th Attorney General of the United States.

Confirmation is a privilege, not a right--even for a sitting United States Senator.

Although some of the people of Alabama have chosen to vest Senator Sessions with authority to represent them in the Senate, his record demonstrates that he does not have the fairness or independence necessary to be an Attorney General who will protect the rights of all Americans.

As the former Chief Counsel for Nominations for Senator Patrick Leahy, I do not relish the necessity of opposing any Member of the Committee I once served, but I must speak up.

Although Senator Sessions may well be hastily confirmed through the reckless disregard of precedent and ethics emerging in this new Congress, still I would urge any Senator who cares about the rule of law to vote against giving this nominee the enormous powers of the U.S. Department of Justice--an agency I was honored to serve as Deputy Assistant Attorney General in the Office of Policy Development/Legal Policy.

We have seen the damage done to the duties of justice when the Senate confirmed someone too close to the President of the United States. That is what happened with short-tenured Alberto Gonzales who politicized the appointment of the U.S. Attorneys, the chief federal law enforcement officers in the states, at the behest of the White House. He embraced its partisan agenda to peddle the myth of widespread voter fraud, firing federal prosecutors who would not play along. He then gave plainly deceptive testimony to this Committee about those firings.

Senator Sessions was the first, and for a long time, only Senator willing to endorse Donald Trump, and he is now being rewarded for his loyalty--not for being the most qualified candidate.

How will he repay the debt of this appointment to Mr. Trump?

His record in the Senate is one of the most extreme--too extreme for a country so closely divided. There was no voter mandate to roll back crucial laws that Senator Sessions would be charged with enforcing, many of which he has repeatedly verbally assailed.

Senator Sessions has defended Mr. Trump, despite the many extreme or intemperate or false things Trump said or tweeted. One of the most troubling elements of all this is the durability of Senator Sessions' loyal embrace of Trump, despite the candidate's repeated race-baiting. This is an especially worrisome confluence given his civil rights record, reports of the nominee's past purported "joke" about benevolence toward the Klan, and more.

But, the issue I want to focus on is how Senator Sessions might respond to potential conflicts of interest or corruption by the incoming Trump Administration.

How the Pryor Nomination Bears on Senator Sessions' Potential Approach to Being AG

I am submitting this testimony in part because I think it is important to remind the public of how Senator Sessions responded when concerns about the potential corruption or ethical blind spots of one of his friends, William Pryor, were raised with this Committee by a whistleblower.

Back in 2003, it was a new thing for a state Attorney General to raise money from companies that public attorney was charged with regulating. To do so secretively was especially novel. These were new and controversial developments, long before the array of secretive corruption unleashed by the U.S. Supreme Court in the Citizens United decision became more common.

Such practices were especially unseemly because a state Attorney General is not just an elected official, like a governor. A state Attorney General is the public's attorney, someone given special duties--and special powers--to enforce the laws of a state, to investigate crimes and violations of civil statutes, to bring charges or pursue fines, to punish wrongdoing, and negotiate settlement of corporate or individual investigations to advance the public good.

Although a state Attorney General must raise money to run for office, there was a general sensibility that Attorneys General, as law enforcement officers, should not be currying favor with industries under their jurisdiction or be in a position where it could appear they were enforcing the law unequally, picking and choosing enforcement of the law based on donor preferences.

When most prosecutors and sheriffs stand for election, their campaign donors are publicly disclosed and so the public knows potential conflicts. But Mr. Pryor helped establish a new group in 1999, the Republican Attorneys General Association (RAGA), that behaved differently.

The donations solicited by Attorneys General who were part of RAGA were reported by the RNC but were not publicly tied to the state Attorney General who raised the money. So the public did not know who was currying favor with their Attorney General through large donations--but the state Attorneys General in RAGA did because they solicited the donations.

There was another important distinction from other electoral roles, besides disclosure. For city and county prosecutors, the laws they enforce are mostly criminal matters where the public knows that a crime was committed and can see if the one who did it was a big donor and can see how the potential criminal defendant is treated. But for state Attorneys General, the laws a corporation might break may not be so obvious or public as a murder or robbery, but could harm hundreds or thousands of people in ways that only a government investigation could uncover.

Moreover, if an Attorney General decided to oppose a particular law, such as a regulation of a corporation, that might be articulated as a policy decision--without the public or press knowing money had changed hands through an intermediary at the state Attorney General's request.

That's why the issue of RAGA was a big concern in the case of the nomination of then-Alabama Attorney General Bill Pryor. Pryor, a dear friend of Senator Sessions, had created and used RAGA as a mechanism to solicit donations from corporations to be given to an RNC division with the knowledge that the division would then help fund the electoral campaigns of those AGs.

Press accounts as early as 2000 expressed concerns about this new enterprise spearheaded by Mr. Pryor and whether it circumvented state campaign finance laws. Democratic Attorneys General expressed concerns about RAGA too, but then formed their own group, DAGA. However, DAGA stated publicly that it would disband if RAGA did.

But this is about more than RAGA. Now, in 2017, the administration of our laws is facing an unprecedented array of potential financial conflicts of interest by the incoming President and several of his top choices for the Cabinet or other posts.

And, the question becomes will someone as unconcerned about secret corporate influence on state Attorneys General as Senator Sessions was have any concerns or objections to the exertion of secret corporate influence on the agency heads or even--or especially--on the President himself, with his labyrinth of debt and corporate subsidiaries?

The Pryor incident sheds light on this question. Few people, other than Mr. Pryor, understood how RAGA operated. Some watchdog groups had raised concerns in the press about how it might be structured to sidestep campaign finance disclosures or donation limits, as well as to avoid the public from observing the appearance of conflict created by such solicitations.

But during Pryor's nomination, a whistleblower came forward with authentic documents showing precisely which corporations RAGA targeted, how the money was routed around RAGA, and the kind of secret access that was given to corporations based on how much they ponied up.

Perhaps it is too much to expect a loyal friend to condemn someone he admires if such a scheme were exposed. Perhaps, the more predictable reaction would be to defend that friend.

While personal loyalty is a particularly admirable quality in a friend, it is a quality that is not an inherently good one for someone tasked with independently enforcing the law of the land.

Of the many things that have gone awry in the Senate, one of them is the rise of loyalty to party or tribe over country. There was a time when Senators more regularly crossed party lines for the sake of our nation. There were periods when, if an ethical issue were raised about a nominee, that nominee's advocate might urge the nominee to withdraw, for the good of the office or for the sake of the country, rather than to deny it was an issue or attack the messenger.

But when Senate staffers sought time to fully investigate the potential conflicts of interest that Mr. Pryor's RAGA had enabled and whether he had responded to questions fully and truthfully, Senator Sessions did not express reverence for the position of trust of state Attorneys General and how secret fundraising from corporations might compromise the office he once held.

Instead, Senator Sessions expressed disgust at the accusers who suggested that someone he liked did anything wrong by secretly raising cash from companies for state AG elections.

In light of this and more, what can we expect him to do as the nation's chief law enforcement office in cases of evidence of wrongdoing against Donald Trump or members of his Cabinet?

Back in 2003, Senator Sessions expressed no reservations about the RAGA operation.

The money secretly solicited through RAGA was given to the RNC, which then wrote big checks to fund the participating AGs' state political campaigns, effectively laundering the money.

It was a clear pay-to-play operation, giving corporations special access to the top state law enforcement officer in a state if they donated--with more access the more they gave.

The whistleblower materials showed that Pryor used RAGA to pioneer the practice of state Attorneys General secretly raising money from companies whose activities were governed by laws those prosecutors were tasked with enforcing on behalf of the people who voted to elect them.

Can you imagine if the FBI were to raise money from corporations and individuals it was tasked with potentially investigating for criminal or civil violations of the law? It would seem like the shakedown it would be. Would corporations that gave get favorable treatment? Would those that did not be subject to investigation or enforcement? Such fundraising by Mr. Comey would obviously raise real issues of potential conflict and appearances by federal law enforcement.

But why should the public accept that as normal if the top state law enforcers do it?

I remember being stunned by the sheer number of corporations that Mr. Pryor's RAGA targeted for solicitations. Many of them had been investigated for potential federal or state violations.

When I researched the companies on RAGA's list, I found several corporations that federal or state authorities had indicted or sued for criminal or civil violations. The RAGA funding targets that I remember included:

• Microsoft, which had settled the Justice Department's antitrust case against it in 2001, the year I left DOJ, shortly before I came to work for the Senate Judiciary Committee;
• Columbia-HCA, which DOJ had sued for fraud based on whistleblower material in 2001;
• Koch Industries, which had been subject to one of the largest potential fines in U.S. history for emitting tons of cancer-causing benzene for which it was indicted by the Clinton Administration, but which DOJ settled shortly after G.W. Bush was sworn in;
• Kerr-McGee, infamous for the mysterious death of whistleblower Karen Silkwood;
• RJR Tobacco, Philip Morris, and another tobacco company that had been part of the 1998 master settlement of state liability suits for the harms and costs of smoking; and
• the National Rifle Association, though more than 30 cities and the state of New York had filed suit against gun manufacturers, based on the tobacco litigation liability strategies.

Other RAGA fundraising targets included big oil, drug, and credit card companies, and even law firms. I also remember that there were companies located in Mr. Pryor's state, like Alabama Power, which was part of Southern Co.--which had been sued in 2001 by the famous lawyer Johnny Cochran who was representing black workers claiming employment discrimination.

But we did not know that when this Committee held a hearing on Bill Pryor's nomination on June 11, 2003. Otherwise I would have urged that we ask him about those corporations and litigation, especially given Mr. Pryor's role as a hold-out against the tobacco litigation of other state AGs.

At that hearing, then-Senator Feingold asked about RAGA and whether Mr. Pryor had solicited money from corporations subject to his jurisdiction, a perfectly legitimate question based on what had been reported in the press about ethics questions being raised about the new RAGA group. At the time, Senator Feingold had just successfully won passage of the McCain-Feingold election reforms and was focused on protecting elections against corruption and dark money.

Mr. Pryor publicly and under oath denied that he had solicited funds given to RAGA or himself from corporations under his jurisdiction as the Attorney General of the state of Alabama.

Chairman Hatch put Pryor's nomination on the Executive Calendar for the very next week, June 19, despite the many concerns Senators raised about Mr. Pryor's extreme callousness toward prisoners, his hostility to constitutional protections for women's reproductive rights, and more.

Senators also submitted written questions to Mr. Pryor based on the hearing and his background, including follow-on questions about how RAGA raised funds since Mr. Pryor said that all RNC donations were disclosed (but what was not disclosed was which AG raised them).

The nomination was held over by the Chairman to July, with the asbestos bill and other issues.

Around July 4^th, a whistleblower provided the Committee with materials contradicting some of Mr. Pryor's statements under oath, showing that his staff planned the solicitation of funds from a wide array of corporations, including some that did business in Alabama. The documents included call sheets for Mr. Pryor and other state Attorneys General in RAGA.

What was not clear from the whistleblower materials was whether Mr. Pryor made all of the calls assigned to him by the woman who had been his chief of staff and whom he had chosen to be the main staffer for RAGA who was coordinating all of RAGA's corporate fundraising.

The minority staff informed the majority staff that a whistleblower had provided such materials to the Committee and requested time to investigate the matter before a vote would be taken on Mr. Pryor's nomination for a lifetime appointment. The materials were shared with majority staff.

What happened next was astonishing. Someone leaked information about the investigation and the identity of the whistleblower--known only to the majority and minority staff of this Committee--to a right-wing columnist in Alabama, Quin Hillyer, who exposed her name to the public in a July 16 column, two days before a vote was scheduled on Mr. Pryor's nomination.

In tumultuous arguments behind the scenes, majority Senators and staff accused the minority's Senators and staff of leaking the whistleblower materials to Mr. Hillyer to damage Mr. Pryor's nomination and worse. But it was absurd to suggest Democratic staff would leak the identity of the whistleblower or the documents to a right-wing state columnist who defended the junior Senator from Alabama. Senator Sessions was furious that documents had been given to the Committee about his friend. Senator Cornyn who had been part of RAGA was upset too. And Democratic Senators and staff were upset that they were being attacked for investigating the matter. Such heated recriminations, however, were not on the record.

At the Senate Judiciary Committee's Executive meeting in public on July 17, Senator Sessions did not object when Senator Cornyn and colleagues demanded an investigation of Senate staff and of the whistleblower who brought the materials about Mr. Pryor to the Committee.

Instead, Senator Sessions stood by his friend.

On July 23, it was Chairman Hatch who rebuffed Senator Cornyn's entreaties.

At that Executive Committee meeting, Senator Sessions expressed revulsion that anyone would say anything bad about his friend, Mr. Pryor, in tones similar to his defenses of his friend Trump.

According to the informal stenographic record and video of that meeting, he said "when I hear these outside groups promote their attacks on him, and distort his record and misrepresent this good and decent man, it makes me sick to my stomach."

Senator Sessions also defended Mr. Pryor on specific concerns about RAGA's solicitations, based on the preliminary investigation of committee staff. He stated, for example, regarding "the tobacco company, my notes are that he, quote, is 'almost certain' Bill Pryor did not solicit him." He also stated that he believed that Pryor "refused to take tobacco contributions to his campaign," and Mr. Pryor's staffer who was the RAGA fundraiser said he did not solicit them. And, those assurances were good enough for Senator Sessions.

However, the whistleblower documents actually showed that when Mr. Pryor led the group that RAGA had in fact successfully solicited donations from tobacco companies. The documents showed a tobacco company was also on his call list.

But Senator Hatch pretermitted the investigation after only about a dozen calls to potential witnesses--on which the majority staff discouraged answering the minority staff's questions. And the Chairman then forced Mr. Pryor's nomination to the floor in violation of the Committee's Rule IV that required minority consent, despite the pleas of Senator Leahy and other Members.

Mr. Pryor's nomination was blocked on the floor along with about a dozen other Bush nominees. In 2004, President Bush made a "recess appointment" to install Bill Pryor on the 11^th Circuit even though the Senate had not confirmed him.

After the 2004 election, President Bush re-nominated Mr. Pryor, and he was confirmed by the new Senate in 2005. (The most complete record of the Pryor nomination available online was compiled by Bill Moyers and his team: http://www.pbs.org/now/politics/pryor.html)

Fast forwarding a decade, Eric Lipton of the New York Times conducted a deep investigation into the extensive corporate lobbying of state Attorneys General through groups like RAGA.

In 2015, he won a Pulitzer Prize for that investigation into the important public policy concerns raised by corporations exerting such influence over the public's top attorneys in the states through RAGA. That was an important investigation that the U.S. Senate Judiciary Committee could have pursued years earlier had it not turned a blind eye to concerns about a friend of Senator Sessions and caved in to White House pressure to ram through Mr. Pryor.

Since Mr. Lipton's report, my organization--the Center for Media and Democracy--has also been examining RAGA. Our investigation uncovered RAGA's role in raising money to help thwart efforts by New York Attorney General Eric Schneiderman and others to hold Exxon accountable for knowing decades ago through its own scientists that burning carbon was changing our climate in harmful ways.

CMD's investigation has also led to more evidence about how RAGA's current pay-to-play operations have given special access to big coal companies that have funded professional climate change deniers and met with RAGA AGs to coordinate opposition to the Clean Power Plan. Some of those deniers have also been tapped by Mr. Trump for the transition team and to undo crucial federal policies that try to mitigate climate change, as CMD has documented.

All the fears that were expressed about RAGA in its early years by some Members of this Committee have come to fruition. RAGA's position is that everything it does is consistent with the laws--as they have been interpreted and modified at the behest of corporate interests.

So here we are. Senator Sessions is now poised to take over the top law enforcement role in the nation at a time when corporations are exercising enormous political influence and when the freedom of the press to investigate is under greater threat than any time in modern U.S. history.

I do think this Committee should seek commitments from Senator Sessions about investigating potential corruption and protecting press freedom. But I am concerned that such assurances are not very meaningful or enforceable.

After all, former Senator John Ashcroft promised this Committee that he would not push his personal views of an individual right to bear arms to limit federal regulation of firearms if he were confirmed. But shortly after he was confirmed, he issued a letter to the National Rifle Association interpreting the Second Amendment the way he swore to the Senate he would not. The reality is that the Senate has insufficient power and political will to enforce such promises.

That is why assurances are no substitute for having a nominee whose background and record give confidence to the public that he or she will be fair. Assurances are not the same as having a nominee whose record demonstrates he or she will hold the powerful accountable. They do not make a nominee truly independent of a partisan, political agenda--no matter how polite a nominee is when sitting at the witness table of the Committee or making courtesy calls.

Now more than ever, America needs a truly independent Attorney General, with Mr. Trump and so many nominees having such extraordinary financial conflicts and corporate loyalties.

And how would Senator Sessions respond to Trump's demands to investigate whistleblowers rather than the potential crimes they expose? Would he object? That seems doubtful.

These concerns are especially salient in the aftermath of the president-to-be urging the press be sued for daring to report allegations of witnesses against him--as with his threats to the New York Times for its reporting of the claims numerous women that Mr. Trump assaulted them.

No one can forget that--while others reacted with revulsion to Mr. Trump saying on tape he could grab women by their genitals since he was a celebrity--Senator Sessions defended Mr. Trump, even asserting that such aggressive touching of another person's sexual organs without consent was not assault. Yet every first year law student is taught that grabbing another person without his or her consent is assault, meeting the textbook definition of the word.

Senator Sessions' defense of Trump was also appalling to millions of women and girls across the country. How can anyone trust that Senator Sessions would insist on the full enforcement of protections for women in the law entrusted to the Department of Justice, including the Violence Against Women Act, Title IX, the Civil Rights Act of 1964, and other protections for women?

To unblinkingly defend Trump's behavior at its most shameless makes it difficult to imagine what kind of behavior of Mr. Trump that Senator Sessions would not defend or ignore. That is especially troubling given the fact that the Justice Department is supposed to act independently, and not bend and scrape like a loyal servant to the temporary occupant of the White House.

And how can any reasonable person have confidence that Senator Sessions will investigate the scourge of police shootings of unarmed black Americans, given his own defense of police policy and Mr. Trump's denigration of the Black Lives Matter movement along with his decision to make a white nationalist/supremacist, like Breitbart News' Mr. Stephen Bannon, his chief strategist?

How could any reasonable person believe that Senator Sessions would investigate allegations of corruption or sexual harassment--or any high crime or misdemeanor--against Mr. Trump?

Finally, I must add one last thing.

I know that with the concerns raised about Senator Sessions and racial justice issues, his former Judiciary Committee counsel William Smith has been quoted in the press as an African American lawyer who worked closely with Senator Sessions and who admires him greatly.

I feel obligated to share one anecdote about working alongside Mr. Smith that may give important context to his assessment of the Senator.

It occurred during the overnight debates the majority scheduled in November 2003 to try to break the Democratic filibuster of about a dozen Bush judicial nominees. That stunt was orchestrated even though Democrats had confirmed more than 98% of Bush' nominees on the floor. The White House gave buttons to Republican Senate staff saying "100%--that Bush was entitled to have all of his nominees be confirmed, which is contrary to how the GOP has treated many of President Obama's nominees, including Judge Merrick Garland for the Supreme Court.

Outside groups backing the Republicans also arranged for people to be bused in from around the country to observe that historic debate, which FOX infamously sought to stage-manage.

I remember sitting in the Democratic staff corral listening to that floor debate, when I noticed a busload of white folks shuffling in to the Senate gallery late one night. I was looking up at them because I was surprised that so many people had suddenly arrived when it was so late at night.

Mr. Smith crossed over from the Republican staff corral and said to me: "Do you want to know who those people are? Do you want to know? Those are the real freedom riders!"

I was shocked. I could not believe a black lawyer would ever compare white citizens bused to hear legislative speeches to the brave men and women, blacks and whites, who risked their lives traveling to Mississippi to help register blacks to vote during 1964's Freedom Summer.

As every student of history knows, hundreds of activists were arrested, dozens of churches were bombed, and three noble souls--organizers James Chaney, Andrew Goodman, and Michael Schwermer--were ambushed and murdered by the Klan after being arrested briefly by a KKK member in the sheriff's office. Several other blacks were disappeared and killed.

Shocked, I replied: "William, those are your words. I can't believe you'd say that. I can't believe you'd say those words." He pointed up to the gallery again and said "Those are the real freedom riders," and then he went back to the Republican corral. I will not ever forget his words.

I have no doubt Mr. Smith feels passionately about the political agenda he helped Senator Sessions advance, but I think those words provide context for different views of the world we are in.

Conclusion

One of my most treasured memories of working at the Justice Department, other than of my colleagues, is of the feeling of coming to work each day and walking through the tall aluminum doors on Pennsylvania Avenue with these words engraved above: "The Place of Justice Is a Hallowed Place."

The place of justice is a hallowed place. It is not hallowed by any employee's religious beliefs but it is hallowed, made sacred, by the work of people putting aside partisan politics to help deliver justice in this country, for all Americans no matter their party, religion, gender, or race.

Being Attorney General is one of the highest positions of trust in the land, and--to hallow that secularly sacred trust--the Department and the American people deserve someone to lead it who will put making our society more just for all the top priority, to provide justice for all and not some.

Doing so requires fidelity to the law above party and friendships. And, to do it well, to genuinely help make our society more just and to help our great country fulfill her highest aspirations--her noblest cause--necessitates someone who is willing to stand for the human rights of ordinary people, especially when faced with pressure from powerful people, groups, or corporations.

I wish that I believed that Senator Sessions would bend the arc of history toward justice. But I fear he will not.

I fear Senator Sessions will not oppose imprudence, corruption, or retribution by Mr. Trump, and will instead enable him, with the vastly expanded 21^st century law enforcement powers that now repose in the hands and the legal interpretations of the Attorney General of the United States.

For all these reasons--and based on the many eloquent concerns raised by numerous civil rights, civil liberties, immigrants rights, women's rights, LGBTQ rights, and environmental groups and more representing people across the nation deeply worried about the nomination of Senator Sessions--I respectfully urge you to vote "no" on Senator Sessions' nomination in Committee and to vote against his confirmation on the floor of the United States Senate.

Thank you for considering these concerns.