Sessions Silent as Trump Attacks His Department, Risking Autonomy and Morale
Posted February 4, 2018 8:07 p.m. EST
WASHINGTON — As President Donald Trump hammers away at the Justice Department’s credibility, one voice has been notably absent in the department’s defense: the one at the top.
The attorney general, Jeff Sessions, has been largely quiet and even yielding as the president leads the most public and prolonged political attack on the department in history, a silence that breaks with a long tradition of attorneys general protecting the institution from such interference.
“What is unusual is the FBI and the Justice Department being attacked, the president leading the charge and the attorney general missing in action,” said Jack L. Goldsmith, a Harvard law professor who headed the Justice Department’s Office of Legal Counsel under President George W. Bush. “Why isn’t he sticking up for the department?”
Current and former prosecutors say Sessions’ tepid response reflects efforts to appease Trump, even at the expense of morale among the department’s employees, and has raised fears that prosecutors cannot depend on protection from political interference.
“Attorneys general swear an oath to protect and defend the Constitution, not the president,” said Matthew S. Axelrod, a partner at Linklaters and a former Justice Department official who began as a federal prosecutor under Bush. He left the department after his boss, Sally Q. Yates, was fired by Trump when she refused to defend his travel ban. “Institutions like the DOJ rely on their leaders to be a voice that defends them. It’s critically important to this institution that its leadership have its back.”
It is a duty previous attorneys general have embraced. The department’s rank and file still extols a story from more than a decade ago as the model for how the system should work. In that encounter, the ailing attorney general, John Ashcroft, allowed his acting replacement, James B. Comey, to defy the Bush administration during a confrontation in his hospital room over a surveillance program Justice Department lawyers had deemed unconstitutional.
The traditional lines have blurred under Trump and Sessions, however. For nearly a year, the president has critiqued the work of the Justice Department and complained about Sessions for a variety of perceived infractions and acts of disloyalty. He attempted to fire Robert S. Mueller III, the special counsel overseeing the investigation into Russian election interference and possible ties to the Trump campaign, and considered firing Rod J. Rosenstein, the deputy attorney general and official who oversees Mueller.
While the Justice Department has argued that a case brought by Paul J. Manafort, a former campaign chairman for Trump, against Mueller should be dismissed, Sessions has not voiced robust support for the special prosecutor.
And last week, after Trump latched on to allegations in a contentious Republican memo that the Justice Department and FBI had abused their surveillance powers and called their conduct a “disgrace,” Sessions offered a meager defense of his lawyers and the institution. “I have great confidence in the men and women of this department,” Sessions said in a statement after the memo was released. “But no department is perfect.”
Through a spokeswoman, Sessions declined to comment for this article.
His muted response to Trump’s remarks stood in stark contrast with the defiant statements made by Christopher A. Wray, director of the FBI. “I am determined to defend your integrity and professionalism every day,” Wray said in a message to FBI employees. “Talk is cheap; the work you do is what will endure.”
Sessions’ standing with Trump has eroded in his year as attorney general. The president criticized his Senate confirmation performance and his decision to remove himself from overseeing the Russia investigation, even musing that he would not have hired Sessions had he anticipated the recusal. He berated him so severely over Mueller’s appointment that Sessions offered his resignation.
That fraught relationship has impaired Sessions’ ability to act as a bulwark between his lawyers and politics, former career prosecutors said.
“Sessions’ silence is evidence that Trump’s public neutering of anyone close to this investigation is working,” said Paul Pelletier, a Democratic candidate for Congress in Virginia who was a federal prosecutor for nearly three decades. “It is deleterious to the whole criminal justice process.”
Pelletier said that although the attorneys general with whom he worked, from Edwin Meese III to Eric H. Holder Jr., sometimes clashed with their staffs, they gave prosecutors and the institution itself unwavering public support.
“Prosecutors and agents are extremely vulnerable if they’re not properly supported by leadership, especially when it comes to investigations and attacks launched on the political side,” said Daniel Petalas, a former prosecutor in the department’s public integrity section and the U.S. attorney’s office in Washington. The department is often involved in high-profile cases, sometimes with powerful people at the center who seek to discredit the investigations against them. “Prosecutors have to stand silently and cannot defend their work to the public,” Petalas said. “They can only hope that the leadership will serve as a bulwark.”
Two current federal prosecutors who spoke on the condition of anonymity said they were working hard to maintain morale. They were heartened by reports of Wray standing up to Trump, and they remain optimistic that the institution can withstand political attacks, with or without Sessions’ public support.
Several current and former Justice Department officials said Sessions’ recusal had given them hope that he would defend the staff and its work from politics. But even before the Republican memo was released, other choices worried them.
Trump’s decision to pardon former Sheriff Joe Arpaio, who had been convicted of contempt of court for his failure to end racial profiling practices, was “a thumb in the eye to career prosecutors,” said Christopher Hunter, a former FBI agent and prosecutor who left the department in December. He called Sessions’ silence on that issue demoralizing.
“The use of the presidential pardon to excuse unconstitutional, discriminatory conduct that violated a federal court order — that undermined our system,” Hunter said.
The silence from Sessions could have a more pernicious effect on the staff than the blow to morale, the officials say. The condemnations send the message that people can be persecuted for holding political beliefs at odds with those of the president. During a speech in Norfolk, Virginia, last month, Sessions said that he loved the department and that the “vast majority” of employees were patriotic and hardworking. But he also said the department could not be defensive when criticized by politicians, and implied that it might be necessary to weed out “political bias and favoritism” from investigations and prosecutions.
“We don’t see criticism from Congress as a bad thing,” Sessions said. “When they learn of a problem and start asking questions, that is a good thing.”