by Dan Froomkin
Attorney General Jeff Sessions has a perplexingly contradictory view of civil rights law when it comes to transgendered people.
On the one hand, he is enthusiastic about prosecuting murder cases in which the victims were allegedly targeted because of their gender identity. On the other hand, he went out of his way to give employers a green light to discriminate against transgender people in the workplace; rejected the Obama administration interpretation that nondiscrimination laws require schools to allow transgender students to use the bathrooms of their choice; and defended Donald Trump's half-baked tweet in favor of banning transgender troops.
The backtracks on transgender protections are among several stark and abrupt reversals from practices during the Obama era that have come under Sessions's watch. One on level, that's not so surprising, coming from the attorney general for a president who on Monday described himself, accurately, as "very opposite" from his predecessor.
But some reversals have violated decades of Justice Department precedent – and others have come against a backdrop of consistent forward movement on social issues.
Members of the Senate Judiciary Committee on Wednesday get their first chance to question Sessions since his confirmation hearings more than nine months ago. And in order to explore how dramatically the Justice Department has changed in that time, they should ask the attorney general to explain those turnarounds, and how they came to be.
So, for instance:
Q. It seemed obvious to former Attorney General Eric Holder that the law prohibiting discrimination "because of sex" extends to discrimination because of an employee's gender identification. Why do you see things differently?
Q. If you consider the targeting of transgender people for violence to be a civil rights issue, why is discriminating against them at the workplace not a civil rights issue?
Holder in a 2014 memo, argued the legal interpretation of "sex", as cited in Title VII of the Civil Rights Act of 1964, had evolved over time. "[C]ourts have interpreted Title VII's prohibition of discrimination because of 'sex' as barring discrimination based on a perceived failure to conform to socially constructed characteristics of males and females," he wrote.
"The most straightforward reading of Title VII is that discrimination 'because of ... sex' includes discrimination because an employee's gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex."
In July, Sessions's Justice Department filed a brief in a case in which it wasn't even a party, arguing that Title VII doesn't protect employees from discrimination based on sexual orientation.
And a few months later, Sessions sent out a memo countermanding Holder's expansive view of "sex" with a more literal, and anachronistic, reading.
“Title VII does not prohibit discrimination based on gender identity per se," because it doesn't explicitly refer to gender identity, Sessions wrote. Rather than citing new legal precedents or evidence, he simply insisted that " 'Sex' is ordinarily defined to mean biologically male or female."
But in what Matt Apuzzo of the New York Times on Sunday called an example of the "nuance" of Sessions's approach to civil rights, Sessions has been enthusiastic about fighting individual cases of violence against transgender individuals.
Sessions voted against the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2010, which amended federal hate-crime law to include crimes motivated by a victim's actual or perceived "gender, sexual orientation [and] gender identity".
But as attorney general, Sessions praised the first conviction under the new statute of a transgender murder, and has sent a DOJ lawyer to help Iowa prosecutors try a man charged with murdering a transgender high school student last year
By all accounts he even responded with alarm to a letter this March from six House Democrats, asking him to investigate the recent murders of seven African-American transgender women.
"I personally met with the Department’s senior leadership and the Civil Rights Division to discuss a spate of murders around the country of transgender individuals," he said in June.
Q. Do you think it's possible that giving the green light to a certain kind of discrimination in one circumstance might encourage it in another?
And consider Sessions's approach to civil rights violations by police officers. As with victimization of transgender people, he seems aggrieved by individual cases, but utterly heedless of the possibility that there can be a pattern and practice of bad conduct.
For instance, Sessions promised to "punish any police conduct that violates civil rights." But in a March memo that effectively halted the federal review of troubled law enforcement agencies, he wrote that "The misdeeds of individual bad actors should not impugn or undermine the legitimate and honorable work that law enforcement officers and agencies perform in keeping American communities safe."
Q. Why do you acknowledge that there are individual violations of civil rights, but you do not seem able to acknowledge that there are also collective, institutional violations that could and should be addressed? Are you willing to acknowledge those are possible, and actually exist?
In February, Sessions was said to be behind the formal rejection of the Obama administration’s position that nondiscrimination laws require schools to allow transgender students to use the bathrooms of their choice.
Q. Did you see the Obama administration's position as part of an expansion of gay, lesbian and transgender rights? What do you consider the appropriate limits on those rights?
Sessions will rightly and inevitably face a slew of questions about his encounters with Russian officials during his time with the Trump campaign, and his role in possible obstruction of justice, including the firing of FBI Director James Comey.
Matthew Miller has suggested some good questions to that end at Lawfare; Just Security has published an excellent timeline of the various obstructions, with plenty of appearances by Sessions.
It would certainly be worth getting Sessions to state clearly what exactly he has recused himself from, and why he thinks that didn't include participating in the firing of FBI Director James Comey.
Keeping to the theme of asking Sessions about reversals, senators should also ask him about the sudden settlement in May in a case involving Russian businessman Denis Katsyv, one of whose other lawyers was Natalia Veselnitskaya, a Russian attorney who had held a secret meeting in June 2016 with Trump’s son, son-in-law and then-campaign manager.
Democrats on the House Judiciary Committee in July asked Sessions some fine questions about that:
Q. Was Natalia Veselnitskaya involved at any point in the settlement negotiations of U.S. v Prevezon Holdings Ltd.?
Q. Why was the case settled for $6 million just two days before trial was scheduled to begin?
Q. Was there any contact between President Trump, White House personnel, the Trump family, or the Trump campaign with the Department of Justice regarding the Prevezon case?
Q. Did you discuss the Prevezon case with anyone associated with the transition team at any point during the time you were under consideration for Attorney General?
Q. Did you discuss the Prevezon case with Ambassador Kislyak, or any other Russian official, at any time?
When it comes to voting rights, one Sessions about-face wasn't simply a rejection of Obama administration policy, it was a reversal of more than two decades of consistent Justice Department enforcement of the rule in question. The brief was signed exclusively by political appointees. By contrast, a group of former political appointees and career lawyers filed an amicus brief with the Supreme Court to represent the historical view.
Q. Why did no career Justice Department lawyers sign the brief your solicitor general filed in July doing a 180 on the Department's traditional position on its interpretation of a key element of the Voting Rights Act?
In a key labor relations case, the Justice Department in June not only abandoned its previous position, it actually filed an amicus brief on behalf of the companies that were formerly its targets. The issue was whether arbitration agreements can bar employees from suing their employers. The Obama administration argued no; the Trump administration argued yes.
The brief, with admirable transparency, explained that "After the change in administration, the Office reconsidered the issue and has reached the opposite conclusion."
Q. What factors played a role in the department's reversal on whether arbitration agreements can bar employees from suing their employers?
The Solicitor General has often been called "the Tenth Justice" in light of the office's tradition of honoring the doctrine of precedent. It isn't supposed to switch positions on the interpretation of federal law willy-nilly.
Q. What sort of process is there to determine whether the Solicitor General should abandon a previously held interpretation of the law?
Q. How high is the bar?
Under Obama, the Justice Department was defending a new rule regarding hydraulic fracturing operations on public lands. But when it was time for oral arguments, the Trump administration had already started dismantling the rule. So a Justice Department lawyer told a 10th Circuit panel that his bosses didn't want to win the case anymore – but also didn't want to lose it, either, because that might set a bad precedent.
A 1984 Supreme Court decision requires judges to defer to administrative agencies’ interpretations of ambiguous federal law.
Q. Are you concerned that abrupt reversals in interpretations of federal laws could lead the courts to reconsider the normal cannons of deference?
Sessions has ordered prosecutors to abandon Obama-era leniency when it comes to prison sentences for nonviolent drug offenses, returning to the drug-war tactics that led to the current state of mass incarceration.
Q. Do you think the Drug War has worked?
Q. Do you disagree that mass incarceration has a disproportionate impact on people of color?
There's been an emerging consensus on the right and left that civil asset forfeiture by law enforcement agencies is widely abused, wildly unfair, and probably unconstitutional.
In July, Sessions rolled back Obama-era curbs on asset forfeiture and announced the federal government will seize more cash and property from suspected criminals, whether or not they have been charged with a crime.
But his move was so unpopular in both parties that the House overwhelmingly passed an amendment that would roll back the Sessions rollback.
Q. What prompted you to try to reopen the civil asset forfeiture spigot?
Q. Who, besides you, thinks that letting the government seize innocent people's property without charging them with a crime is a good idea?
Every new administration wants to put their stamp on the Justice Department. But the way Sessions is reversing course at times seems not very well thought out. Making Sessions answer for those actions is what congressional oversight is all about.