WASHINGTON — Sen. Jeff Sessions confronted one of the biggest criticisms surrounding his nomination to become the next attorney general, insisting he’s not a racist.
In the wide-ranging Senate Judiciary Committee hearing, Sessions also pledged to recuse himself from all investigations involving Hillary Clinton based on inflammatory comments he made during a “contentious” campaign season, defended his views of the Roe v. Wade Supreme Court ruling on abortion, and reinforced the congressional ban on waterboarding.
The Alabama senator was one of President-elect Donald Trump’s earliest defenders on the campaign trail, and was also asked about President-elect Trump’s comments caught on a hot mic bragging about aggressive sexual behavior.
“Is grabbing a woman by her genitals without consent, is that sexual assault?” asked Democratic Sen. Patrick Leahy.
“Yes,” Sessions said.
Hours earlier, the hearing began when Sessions diverged from his prepared statement to address “head on” the very allegations that helped sink his nomination for a judgeship in 1986.
“I abhor the Klan and its hateful ideology,” Sessions said. “I never declared the NAACP was un-American.”
Sessions’ comments came during the first of several blockbuster confirmation hearings that will play out on Capitol Hill over the coming weeks as senators consider President-elect Trump’s Cabinet picks.
Addressing the idea of prosecuting Clinton, a theme of President-elect Trump’s campaign, Sessions said he wouldn’t be involved.
“I believe the proper thing for me to do would be to recuse myself from questions involving those kinds of investigations involving Secretary Clinton that were raised during the campaign and could be otherwise connected to it,” Sessions said, upon questioning by Judiciary Committee Chairman Chuck Grassley.
“I believe that would be best for the country because we can never have a political dispute turn into a criminal dispute,” Sessions said.
He also denied participating in the “Lock her up” chants during the campaign heard at President-elect Trump rallies.
“No I did not, I don’t think. I heard it … sometimes humorously done,” he said.
Sessions said he would respect the 1973 Supreme Court decision allowing abortion and the more recent Supreme Court decision allowing same-sex marriage — even if he doesn’t agree with the court’s decisions.
“I believe it violated the Constitution,” Sessions said in response to a question from Democratic Sen. Dianne Feinstein about whether he stands by his past statements calling Roe a “colossal” mistake.
“It is the law of the land, it has been settled for some time. … I will respect it and follow it,” Sessions said.
Likewise, Sessions said same-sex marriage is settled.
“The Supreme Court has ruled on that, the dissents dissented vigorously, but it was 5-4 and … I will follow that decision,” he said.
Sessions’ hearing, which started Tuesday and will continue into Wednesday, is expected to be one of the most contentious of President-elect Trump’s nominees. Democrats are preparing to interrogate Sessions on a number of fronts, including his record on race and civil liberties, women’s rights and prosecutorial conduct.
Sessions emphasized the importance of law enforcement and crime fighting. He made the case that safety is a “civil right” and cited the increase in violent crime in Chicago and other cities as “not an anomaly, but the beginning of a dangerous trend.”
“It is a fundamental civil right to be safe in your home and your community,” he said.
Protesters began interrupting the event before the hearing began, and continued throughout the moment. Right as Sessions was walking in, two demonstrators apparently dressed as members of the Ku Klux Klan were escorted out of the room. During one of his introductions, a woman protesting with Code Pink was escorted out calling Sessions “evil,” and two more separate protests were taken out during his opening statements, including a man yelling that Sessions is “racist.”
Still, there’s little likelihood Sessions won’t eventually be confirmed. Republicans hold a majority in the Senate and no GOP senators have spoken out against the’ nomination. Instead, Democrats can only hope to trip Sessions up while making their case to the American people against the President-elect Trump administration.
The top Democrat on the committee, Feinstein, started off the hearing by noting that it is difficult for Democrats to go after a longtime colleague, but that it will be necessary.
“The process is going to be fair and thorough,” Feinstein said. “But today, we’re not being asked to evaluate him as a senator. We’re being asked to evaluate him as the attorney general of the United States.”
“We cannot ignore that there are deep concerns and anxieties throughout America,” Feinstein said.
Sessions said he was keenly aware of civil rights and their importance.
“I deeply understand the history of civil rights and the horrendous impact that relentless and systemic discrimination and the denial of voting rights has had on our African-American brothers and sisters,” Sessions said. “I have witnessed it. We must continue to move forward and never back. I understand the demands for justice and fairness made by our LGBT community. I will ensure that the statutes protecting their civil rights and their safety are full enforced. I understand the lifelong scars born by women who are victims of assault and abuse.
“And if I am so fortunate to be confirmed as your attorney general, you can know that I understand the absolute necessity that all my actions must fall within the bounds of the Constitution and the laws of the United States,” he added.
Waterboarding ‘improper and illegal’
Sessions also faced a series of questions on the issue of torture and waterboarding, a hot topic since President-elect Trump has spoken in favor of waterboarding.
Waterboarding is considered torture by US and international law, though President-elect Trump has said he feels it can be brought back into use in the field.
Sessions was asked by Rhode Island Democratic Sen. Sheldon Whitehouse, “Does waterboarding constitute torture?”
Sessions replied that Congress has, since waterboarding’s use in the early Bush administration during the war on terror, Congress has outlawed it.
“Congress has taken an action now that makes it absolutely improper and illegal to use waterboarding or any other form of torture in the United States by our military and by all our other departments and agencies.”
He continued his strategy of telling senators he accepts settled law with torture, including under further questioning from Democratic Delaware Sen. Chris Coons.
Coons asked Sessions about the practice of “hitching posts,” used against prisoners in Alabama while Sessions was attorney general that would bind prisoners outdoors to a post for hours at a time. Coons said Sessions was written to during his tenure that this practice was unconstitutional, but Sessions said he did not examine the issue while in office.
“After the Supreme Court ruling I think it’s crystal clear what the law is, that was disapproved and disallowed and absolutely found to the be unconstitutional,” Sessions said.
Coons noted that Sessions has opposed criminal justice reform and anti-torture legislation in the Senate, even when some members of his party support it. He asked if Sessions would oppose torture as attorney general and how he would respond if the President tried to expand its use.
“In regards to the torture issues, I’ve watched them for some time and been concerned what we should do about it,” Sessions said. “This bill (Congress) passed last time was a major step, I thought not the right step. … (But) it is the law and it needs to be enforced.”
President-elect Trump comments from ‘Access Hollywood’
Sessions was also asked about President-elect Trump’s statements off the campaign trail — a 2005 tape that surfaced during the campaign that captured President-elect Trump on a hot mic bragging about aggressive sexual behavior, including using fame to grab women by their genitals with impunity.
After the “Access Hollywood” tape surfaced, Sessions told a reporter that he didn’t believe doing so was sexual assault, a position he later walked back.
Democratic Vermont Sen. Patrick Leahy asked Sessions point blank: “Is grabbing a woman by her genitals without her consent, is that sexual assault?”
“Clearly it would be,” Sessions said.
Leahy asked if Sessions would prosecute a “sitting president” or other high-level elected official if they were accused of the behavior that President-elect Trump described in the tape.
“The President is subject to certain lawful restrictions and they would be required to be applied by the appropriate law enforcement official if appropriate, yes,” Sessions said.
Leahy asked again whether the conduct in the tape would be considered sexual assault.
“The confusion about the question was a hypothetical question, and it related to what was said on the tape,” Sessions said in defense. “I did not remember at the time whether this was suggested to be an unaccepted, unwanted type, which certainly would meet the definition.”
“Is grabbing a woman by her genitals without consent, is that sexual assault?” Leahy asked again.
“Yes,” Sessions said.
Sessions has come under fire for his support of hard-line immigration policies also embraced by President-elect Trump, and deferred on a question as to whether he agrees with past statements from President-elect Trump calling for a complete ban on foreign Muslims from entering the United States — saying that President-elect Trump has since moved away from that position. Sessions, one of President-elect Trump’s first major backers on the Hill, has defended President-elect Trump’s positions throughout the campaign.
“I believe the President-elect has subsequent to that statement made clear that he believes the focus should be on individuals coming from countries that have histories of terrorism, and he’s also stated that his policy and what he’d suggest is strong vetting,” Sessions said in response to questioning from Democratic Sen. Patrick Leahy about whether he supports denying entry to the US based on religion.
Leahy asked why Sessions then voted against a sense of the Senate resolution that opposed using religion as a basis for denying entry into the US.
“Many people do have religious views that are inimical to the values of the United States,” Sessions said, saying he opposed the resolution because it barred considering religion at all.
“I have no belief and do not support the idea that Muslims as a religious group should be denied admission to the United States. We have great Muslim citizens who have contributed in so many ways,” Sessions said. “Americans are great believers in religious freedom and the right to exercise their religious beliefs.”
Sessions dodged taking a position on the intelligence community’s conclusion that Russians engaged in hacking and other activities to interfere with the US election. Under questioning from outspoken Russia critic Republican Sen. Lindsey Graham, Sessions said he needed to be briefed on the matter but had no reason to doubt the conclusions of the FBI.
Tense back and forth with Franken over record
Democratic Sen. Al Franken was the first on the committee to raise concerns about Sessions’ questionnaire that he submitted to the committee ahead of the hearing — a key piece of Democrats’ messaging against Sessions in the lead-up to the hearing.
Franken asked Sessions to pledge not to “distort” his own record, as he accuses others of doing in relation to race.
Franken zeroed in on two issues: a past statement in which Sessions said he “filed 20 or 30 cases” on desegregation and three of four civil rights cases he highlighted to the committee as being “personally” involved in.
Under questioning, Sessions admitted to Franken that the “20 to 30” estimate from 2009 was not accurate.
“The number would be less than that as we’ve looked at it,” Sessions said, saying that it was difficult to tell from docket sheets which cases he worked on and some began before he came into office or continued after he left as US attorney.
Franken also noted on the civil rights cases Sessions listed in his questionnaire as being part of the 10 most significant pieces of litigation he “personally handled,” as the question from the committee asked, lawyers involved in those cases say Sessions was not involved.
“We worked in the Justice Department’s Civil Rights Division, which brought those lawsuits; we handled three of the four ourselves,” wrote three of the lawyers in a Washington Post op-ed. “We can state categorically that Sessions had no substantive involvement in any of them.”
All three, J. Gerald Hebert, Joseph D. Rich and William Yeomans, have Democratic or left-leaning affiliations.
Sessions responded to Franken by reading statements from the attorneys from the past that said Sessions had signed off on the complaints they filed and had an “open-door” policy in relation to their cases, which justified him using those cases as examples.
“We decided that was an appropriate response since it was a major historic cases in my office,” Sessions said of filling out the questionnaire. “It was 30 years ago, and my memory in these cases, I was supportive.”
Noting several times that he is one of the few non-lawyer senators on the committee, Franken acted like an attorney questioning a witness, seizing on an off-hand comment from Sessions that he didn’t know Rich to ask how he could be “personally” involved in a case with an attorney he doesn’t know.
“When I hear I filed a case, I don’t know some of the parlance, it might have a special meaning in legal parlance, but to me as a layman, it sounds to me like filed means, ‘I led the case,’ or, ‘I supervised the case,’ it doesn’t mean that ‘my name was on it,'” Franken said. “And it seems to me, look, I’ll close Mr. Chairman, setting aside any political or ideological differences that you or I may have, DOJ is facing significant challenges … and our country needs an attorney general who doesn’t misrepresent or inflate their involvement on any single issue, so I consider this serious stuff.”
“You are correct Mr. Franken, we need to be correct in what we say,” Sessions responded.
Democrats have seized on the inconsistencies in Sessions’ questionnaire to accuse him of trying to inflate his record on civil rights in response to the criticisms surfaced in his 1986 hearing and beyond.
Civil rights record
This isn’t the first time Sessions has faced the Judiciary panel.
In 1986, Sessions was the second nominee in 50 years to be rejected for a federal judgeship, after confirmation hearings that brought up accusations that Sessions made racist remarks in his past and called the NAACP and ACLU “un-American.”
While he continued on to be attorney general of Alabama and serve in the Senate, the record from his confirmation hearings in the ’80s is likely to surface again this week.
Civil rights groups have been pressing Sessions’ record on the issue, calling out not just the statements and actions that came up at those hearings but those he’s made since. As attorney general, Sessions would oversee the Justice Department’s civil rights division and the enforcement of federal civil rights legislation.
“The attorney general should be an attorney general for all the people, but he has a particular responsibility to protect those who are most vulnerable — like immigrants, gays and lesbians, women — and Sen. Sessions has frankly been insensitive to or hostile to all of these groups,” said David Cole, national legal director for the American Civil Liberties Union, who will be testifying before the committee on Wednesday, as will the president of the NAACP and a former so-called “Dreamer,” an undocumented immigrant brought to the US as a young child.
Introduced by fellow senators
Sessions was introduced by two fellow GOP senators, fellow Alabama Sen. Richard Shelby and moderate Maine Sen. Susan Collins.
Collins gave a vigorous defense of her colleague, thought she noted she has not always agreed with the firebrand as a more moderate member of her party.
“I have never witnessed anything to suggest that Senator Sessions is anything but a dedicated public servant and decent man,” Collins said, directly addressing Sessions’ 1986 judicial nomination.
She noted that years later, Sen. Arlen Specter, who switched his affiliation from Republican to Democrat, singled out his vote against Sessions as the vote he regretted.
“‘I have since found Sen. Sessions is egalitarian,'” she quoted Specter in saying in 2009.
Sen. Tim Scott, the Senate’s sole African-American Republican member, released a statement of support Monday night in advance of the hearing.
“We may not agree on everything, but you would be hard pressed to find a nominee for any post that any senator is in 100 percent agreement with,” Scott said in a statement. “I have gotten to know Jeff over my four years in the Senate, and have found him to be a consistently fair person. I will continue working for what I believe is in the best interest of my state and my nation, such as criminal justice reform and stopping illegal immigration.”
Opposition from the left
Letters to the committee have targeted Sessions on a variety of issues aside from race, like disabilities and women’s reproductive health. The California Down Syndrome Advocacy Coalition wrote a letter expressing concern about a floor speech Sessions delivered in 2000 in which he called a law that provided for students with disabilities the “single most irritating problem for teachers throughout America today” because it did not allow for children with disabilities to be properly disciplined for behavioral problems.
In another letter, a coalition of women’s health and pro-abortion rights groups wrote the committee they were concerned about Sessions’ record opposing abortion rights and also his opposition to federal legislation that would have set up a safety fund for clinics providing abortion services.
The Congressional Black Caucus, which largely consists of members of the House, also intends to make themselves a presence in the hearings.
Three Democratic members of the Congressional Black Caucus, Georgia Rep. John Lewis, New Jersey Sen. Cory Booker and Louisiana Rep. Cedric Richmond, are scheduled to testify Wednesday.
“This is one of the more consequential appointments in American history right now given the state of a lot of our challenges we have with our policing, a lot of challenges we have with race relations, gay and lesbian relations,” Booker told CNN Tuesday morning.
Also testifying on Wednesday will be Amita Swadhin, a sexual assault survivor and survivors’ advocate who says she plans to discuss Sessions’ record on “issues that directly affect survivors.”
Prosecutorial conduct and the Justice Department
Sessions has faced questions about prosecutorial misconduct in two prominent cases, both likely to come up in the hearings.
One came up in his 1986 hearings. In the case, Sessions prosecuted three black community activists for voting fraud over their outreach to help voters at the polls, a case he lost. Former Massachusetts Deval Patrick wrote to the committee about the injustice he saw in the case as a member of the defense team at the time.
Another case that will likely come up is a 1997 case in which Sessions’ prosecution as Alabama attorney general of a local company based on a complaint from a competitor. The case was dismissed by a judge who called it one of the worst instances of prosecutorial misconduct his court had witnessed.
Sessions would oversee federal prosecutors as attorney general and serve as the nation’s highest prosecutor.
Sessions’ role as the nation’s top crime fighter will also play a central focus. Speaking in favor of the nominee will be the president of the Fraternal Order of Police, who will be supportive of Sessions’ track record on police issues, according to FOP Executive Director Jim Pasco. Of particular appeal to the FOP is Sessions’ support of civil asset forfeiture, which police see as a key tool in fighting gang and drug crime — though it is maligned by criminal justice reform advocates.
Sessions will also have advocates in former Attorney General Michael Mukasey, former Deputy Attorney General Larry Thompson and labor law expert Peter Kirsanow.