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May 25th, 2017

Insight

How Joe Biden twisted the case against Jeff Sessions

Byron York

By Byron York

Published Nov. 29, 2016

How Joe Biden twisted the case against Jeff Sessions 
David Paul Morris for Bloomberg

Jeff Sessions, Donald Trump's choice for attorney general, faces a Senate confirmation hearing in January. Already, Democrats have revived 30 year-old allegations of racism against the Alabama senator. But in making those accusations anew, they have also shed light on an extraordinary backstory in which Joe Biden, now vice-president but three decades ago the ranking Democrat on the Senate Judiciary Committee, distorted Sessions' record, and his views on race, in ways that resonate to this day.

In 1986, Sessions was the U.S. attorney for the southern district of Alabama. Nominated for a federal judgeship by Ronald Reagan, he encountered bitter resistance, led by Biden, in the Judiciary Committee. After extended hearings, the committee, in an extremely rare occurrence at the time, rejected Sessions' nomination on the grounds that he was "insensitive" on issues of race.

A key witness at the hearings was a Justice Department lawyer named Gerald Hebert, an initially-reluctant participant who was pushed onto the hearings' center stage by Biden's staff. Hebert accused Sessions of making racially biased remarks during their conversations while working together on civil rights cases in Alabama. Now, with Sessions facing confirmation again, Hebert has spoken out against the nomination - he says the prospect of an Attorney General Sessions "should make every American shudder" - and could once again be a crucial voice as Democrats try to deal a damaging blow to the new Trump team.

But what did Hebert actually tell the Senate Judiciary Committee 30 years ago? A look at the testimony - the transcript from the several days of hearings stretches to 565 pages - shows that Hebert repeatedly heaped praise on Sessions, not just for Sessions' honesty, forthrightness, and friendship, but also for the help and cooperation Sessions offered to Justice Department civil rights lawyers who sometimes felt that other law enforcement officials were indifferent or hostile to their cause.

Other career attorneys from the Department's Civil Rights Division told the committee much the same thing, in equally positive terms.

Together, their testimony, in a dusty old volume of Judiciary Committee proceedings, creates a far more positive and nuanced picture of Sessions than Biden, other Democrats, and some press accounts have suggested. It will be something to remember when the inevitable attacks on Sessions escalate in coming weeks.

Hebert is today director of the voting rights and redistricting program at an organization called the Campaign Legal Center. In 1986, he was a senior trial attorney in the Civil Rights Division, working in the Voting Section. The Sessions nomination was before the Senate Judiciary Committee, and Biden was leading the effort to stop it.

Hebert, based in Washington, worked on a number of cases with Sessions, beginning in 1981, when Sessions had just become U.S. attorney. The southern district of Alabama was one of the busiest, if not the busiest, site for Justice Department litigation under the Voting Rights Act and Civil Rights Act. Hebert traveled to Mobile, where Sessions was based, on several occasions to work on cases.

The two got along well. "I consider him a friend of mine, more than just a U.S. attorney in the southern district," Hebert told the Judiciary Committee at the 1986 hearings. "I call him when I go into Mobile even if I am not there necessarily on departmental business."

Sessions was an engaging, opinionated man who liked to talk politics and government, Hebert said. Sessions was also prone to "pop off" on occasion - a phrase used both by Hebert and by Sessions to describe himself. The two spent a good deal of time talking. "He enjoys discourse in his office so you can just sort of roll your sleeves up and say...let's talk one lawyer to another or from one person to the other," Hebert told an investigator working for Biden.

In one of their early conversations, in 1981, Hebert told the committee, Sessions said something startling. "Mr. Sessions and I were in his office, and we were talking about different judges' handling of cases," Hebert testified. "I mentioned to him that one of the judges had reportedly said...that a lawyer who handled civil rights cases in Mobile was either a traitor to his race or a disgrace to his race."

"And what is your recollection of Mr. Sessions' response or comment to your statement?" asked Biden.

"As I recall, he said, well, he probably is," Hebert answered. (At other times, Hebert has said that Sessions' response was, "Well, maybe he is.")

Hebert also told Reginald Govan, the investigator for Biden, that he had heard Sessions refer to the NAACP and ACLU as "un-American." "He said that he thought they did more harm than good when they were trying to force civil rights down the throats of people who were trying to put problems behind them," Hebert said of Sessions.

Senators questioned Sessions at length about both accusations. On the "traitor to his race" question, Sessions said he recalled the conversation with Hebert, and did not deny Hebert's account, but did not know exactly what was said. "I have wrestled with that to try to recall that instance, because I respect the lawyer referred to a great deal," Sessions testified. "I do not know why I would have said that, and I certainly do not believe that."

On the second matter, Sessions explained that he was referring to NAACP and ACLU positions on the Sandinistas and the conflict in Nicaragua - positions that strayed far beyond the organizations' core missions - and his opinion that those foreign policy stances were un-American.

The two statements became the core of the case against Sessions, mentioned every time an adversary accused him of racism or racial insensitivity.

At the time, though, Hebert said he did not intend either anecdote to become a part of the public debate. In a confidential interview months earlier, Hebert told the "traitor" and "un-American" stories to a lawyer for the American Bar Association as that group did its routine evaluation of judicial nominees. Sometime in the first week of March, Hebert was in his office at the Justice Department when he was surprised to receive a call from Govan, the Biden investigator, who was preparing for Sessions' hearing, scheduled to begin March 13. In the call, Hebert did not relate the stories about Sessions, on the grounds that what he had told the ABA had been in confidence. (Hebert later testified that at the time he spoke to the ABA, "My impression was that they were going to be confidential remarks and that they would go no further than that.")

But they went a lot further than that. On March 12, the day before Sessions' hearing, Govan called Hebert to say that a car would pick him up in 30 minutes to come give a deposition, and that he would testify publicly at Sessions' hearing the next day.

So Hebert talked to Govan on the 12th. The morning of the 13th, hearing day, Hebert said, he heard his "confidential" remarks about Sessions broadcast on National Public Radio. "I felt bad about that," Hebert later recalled. Hebert, as well as Sessions himself, was quickly learning how Biden and other Democrats on the Senate Judiciary Committee operated.

When Hebert finally sat in the witness chair, he confirmed what he had told Govan earlier, but he also described a much different Jeff Sessions than the one Democrats wanted to portray.

"I have very mixed feelings about my testimony today," Hebert said. "In conversations over the last couple of years - many of which, I understand, have been read into the record in these proceedings - Mr. Sessions and I have engaged in a number of conversations on subjects that touched racial issues and civil rights issues."

"Those comments are now a matter of public record here, and I stand by those as having been made," Hebert continued. "But by the same token, I have prosecuted cases that are highly sensitive and very controversial and, quite frankly, unpopular in the southern district [of Alabama]. And yet I have needed Mr. Sessions' help in those cases and he has provided that help every step of the way."

Hebert said he considered Sessions a friend, more than just a colleague, and more than that, a person he could trust.

"I believe that when Jeff Sessions says he's going to do something, he is a man of his word and he will do it," Hebert said. "And so if his testimony before the committee is that he would follow the law faithfully, I personally would believe him."

Hebert said not all U.S. attorneys in states covered by the Voting Rights Act were entirely cooperative with Justice Department litigation. "We have had considerable difficulty with several U.S. attorneys in cases we have wanted to bring," Hebert told the committee. "We have not experienced that difficulty in the cases that I have handled with Mr. Sessions. In fact, quite the contrary."

The day before, when Biden's investigator, Govan, asked if Hebert had ever had any trouble with Sessions' office, Hebert answered, "No, no. In fact, I've been able to call up on the phone and ask Jeff if I could dictate a paper to his secretary that needed to be filed within the hour and he's been willing to help me out. That just happened within the last two months."

Hebert was not the only Justice Department official to testify to Sessions' active role in civil rights cases. For example, Daniel Bell, deputy chief of the criminal section in the Civil Rights Division who first met Sessions when Sessions was an assistant U.S. attorney in the late 1970s, called Sessions "quite helpful" in civil rights prosecutions.

Questioned by Govan, Bell described a notorious case that rocked the Mobile area. "The particular case I tried, the government had indicted the sheriff of Mobile County and eight of his deputies for deliberately setting up an ambush and murdering a black inmate, an extremely unpopular case in Mobile, and there were a number of people, even in the United States Attorney's office, who were not too eager to be that friendly to the prosecution, especially a couple of Washington-based lawyers. And Mr. Sessions [was] very helpful to the prosecution." Sessions, Bell said, was willing to discuss "in great detail tactical questions and other questions concerning the case."

Bell mentioned that he had worked with Sessions in some way or another on about ten cases. "I never got the slightest impression that he wanted to do anything less than a full investigation of each."

Govan did not seem as interested in Sessions' zeal for civil rights enforcement as he was in allegations Sessions might have said something that betrayed racial bias.

"Have you ever heard Mr. Sessions make remarks that you considered racially insensitive?" Govan asked Bell.

"Not at all," Bell answered. "Not at all. As a matter of fact, my impression of Mr. Sessions is that he is very eager to pursue criminal civil rights cases, and he certainly was at the beginning of my acquaintance with him."

Govan persisted. "During the time that you interacted with Mr. Sessions, have you ever heard him make a remark that in any way, shape, or form you considered to be insensitive on racial matters, even though the remark was said in jest?"

"No, absolutely not," Bell said.

"Did you ever hear him make any remarks in jest that concerned racial issues?"

"No, I have not," Bell answered.

Another Justice Department lawyer, Barry Kowalski, who was deputy chief of the Civil Rights Division's criminal section, described working with Sessions in the prosecution of two Klansmen who lynched a young black man. "During the course of this case I became convinced that [Sessions] was dedicated to this criminal civil rights prosecution, that he was eager to see that justice was done in the area of criminal civil rights prosecutions, and I have no reservations at all whatsoever about his dedication to that proposition based on my experience with him."

Yet another Justice Department lawyer, trial attorney Albert Glenn, who worked on the lynching case, called Sessions "fully cooperative and fully supportive in everything that we have done in this investigation, from the beginning to the end."

The picture was pretty clear: U.S. Attorney Jeff Sessions was a vigorous enforcer of civil rights law who worked with Justice Department lawyers on prosecutions even when they were unpopular with the public or his own colleagues. And yet the remarks that Gerald Hebert testified about, the "traitor to his race" and "un-American" allegations, continued to shape the image of Sessions presented at the hearing and in the media.

At one point near the end of Hebert's testimony, Republican Sen. Jeremiah Denton asked Hebert, "Do you think Mr. Sessions is a racist?"

"No, I do not," Hebert answered.

At another point, Hebert said, "I am troubled by the fact that there is an image based on statements that I have made that Mr. Sessions is a racist. I do not really know whether he is or he is not. I probably ought to know, but I do not. I really cannot say. He has made some comments that show racial insensitivity, but by the same token he has not let whatever philosophy he might have or the comments that he has made affect his ability to do the job as U.S. attorney and to help the Civil Rights Division."

"I do know, though, that he is somebody who has been there when we have needed him."

At the end of Hebert's appearance, Denton had a simple wrap-up question. "If Mr. Sessions says he will be fair as a judge, would you believe him?"

"I guess in the courtroom we would say this question has been asked and answered," Hebert responded. "He is a man of his word and when he says something, I believe him. And if he says that - and I think I said in response to you, Sen. Denton, that if he says he is going to enforce the law, and that he may disagree with the law but he is going to enforce it, I would believe him."

Whatever else Hebert said, that was certainly a strong testament to Sessions' character. In the end, though, it didn't matter. Senate Judiciary Committee Democrats, eager to stop a Reagan nominee, voted to kill the Sessions nomination. They were joined by two Republicans, Arlen Specter and Charles Matthias.

Sessions stayed in his job as U.S. attorney, and later became Attorney General of Alabama, and then, in 1997, a U.S. senator. In one of those turns that can make life so amazing, the newly-elected Sen. Sessions took a seat on the Judiciary Committee alongside Biden and Ted Kennedy and the other Democrats who had tried not only to defeat his nomination but to destroy his reputation.

For his part, Hebert has indicated he's ready to try to stop Sessions again, writing a recent op-ed in the Washington Post in which he said Americans should "shudder" at the possibility of Sessions running the Justice Department. "So once again, I am adding my personal encounters with Sessions to the public record," Hebert wrote.

In the 30 years since the nomination fight, the memory of the accusations - shortened by history to "Sessions is a racist" - has never gone away. Now, it is back with Sessions' nomination as attorney general. But that was never what the hearings showed. Read what was said, and the testimony shows a Jeff Sessions who is much different from the image created in 1986.

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