Head Of Department Of Justice Bashes Justice System Because It Blocks Too Many Of Trump's Orders
from the small-words-from-a-small-mind dept
Recently, Attorney General Jeff Sessions attended the Eighth Circuit Judicial Conference. Considering he was speaking to members of the judiciary, it seems odd he would have used this occasion to deliver a rant against the judicial system.
As a prosecutor, Sessions greatly benefited from the system he now maligns. The justice system barely enters the lives of those being prosecuted. An adversarial system designed to provide the accused with due process is rarely engaged. The outcome is predetermined, except for arguments over minor details. As the Supreme Court wrote in a 2012 decision, the criminal justice system is a downhill slope for prosecutors who rarely need more than a light shove to put someone behind bars.
Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. [...]
The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.”
Having been a beneficiary of a barely-engaged court system for so many years (and now overseeing more beneficiaries as the head of the DOJ), you'd think Sessions would be grateful for all the years the courts rendered themselves pretty much invisible.
Instead, Sessions wants to complain about a supposedly unfair system that keeps acting as a check against the Executive Branch… you know, exactly what it's supposed to be doing.
I am the top lawyer for the Executive Branch. It is a co-equal branch. It too is entitled to proper respect from the courts. Our Assistant U.S. Attorneys, advocating for legal positions—even if the judge may not agree—are due proper respect.
Judges are not sent from Olympus. They are not always correct. Indeed, our appeals in a number of cases have borne fruit in whole or in part.
Some of the erroneous rulings have been quite costly to the taxpayers, have delayed executive action, and have engendered criticism of the President, and the Department of Justice, in the media and various groups.
In Sessions' mind, "co-equal" does not mean counterbalanced or of equal power. Sessions' adheres to an Animal Farm version of equality, where the Executive Branch is more equal than the court system he feels isn't handing out enough respect. This is a truly bizarre -- and somewhat frightening -- take on the legal challenges filed against Trump's executive orders.
Some challenges have been denied. Others have been granted. Injunctions have been issued, with a few of those rolled back after an appeal. This is the way the judicial system is supposed to work, but Sessions wants to hate on it for functioning exactly how it's designed to.
We have a government to run. It is not the duty of the courts to manage this government or to pass judgment on every policy action the Executive Branch takes.
Ah, but it is the duty of the courts to "manage the government" or "pass judgment on policy actions." If policies are challenged in court -- by citizens -- the court has to take the case. Just because Sessions doesn't like some of the outcomes doesn't mean the system isn't working. But it is plainly disingenuous to claim judges have no business passing judgment. JFC, it's right in the name.
For all the talk about "co-equal," it's clear Sessions -- as the head of the goddamn Department of Justice -- feels the justice system has too much power.
We are also defending the constitutional structure of the federal government against nationwide injunctions—orders by a single district judge that block the entire Executive Branch from enforcing or implementing a statute, regulation, executive order, or policy.
You could also call them “non-party injunctions” or “global injunctions”—because they apply across America or even the world, and grant relief, whether they want it or not, to those who are not parties to the case.
Scholars have not found a single example of this type of remedy in the first 175 years of the Republic. But the Executive Branch has been hit with 22 in less than two years’ time in office.
Wow. That sures sounds like the judiciary has it in for the President. Let's see if this unprecedented thing has any precedent…
This goes beyond politics. This has been a problem for administrations of both parties. Until President Trump, the President with the most limitless injunctions was President Obama. Before him, it was President Clinton.
That's Sessions undercutting his own narrative. What this looks like isn't some grotesque misuse of judicial power. No, administrations regularly setting new injunction records indicates to me the Executive Branch has routinely overstepped its Constitutional boundaries before being reined in by courts -- courts designed from the ground up to act as check against overreach by other branches of the government.
The very thing he complains about -- being "held back" by the judicial branch -- he claims to celebrate towards the end of his prepared remarks.
Our Constitution has governed us from the horse and buggy age to the digital age. Ours is the oldest and most resilient constitution in the world. We don’t need conservative judges or liberal judges. As Chief Justice Roberts testified, we just need judges to adjudicate disputes, calling the balls and strikes as they are without taking sides in the game.
But we must be vigilant to our Constitution's design and to its most central feature: the separation of powers.
That is what the American people rightly expect from those who enforce the laws of the United States.
Let's be vigilant to protect the separation of powers, says Sessions, as he suggests the judicial branch might need some trimming if it won't stop standing in the way of questionable executive orders and policies. Good lord. You'd expect this sort of nonsensical drivel from internet randos, not the head of the DOJ.
Sessions is like anyone else: the courts are working when they deliver decisions he likes and a complete failure when they don't. That's fine. And that's expected, especially when partisan agitation seems to be at an all-time high. But that's not the sort of thing you tell a judiciary conference. That's the crap you save for preaching to the converted.
The real ugliness, though, is this: Sessions obviously feels the courts should serve the Executive Branch, no matter how many times he says he values the system of checks and balances that prevents the judiciary from being a subsidiary of the presidential administration. Fortunately, Sessions only has the power to bitch about it. If he could do any real damage to the court system itself, he'd be dangerous. This mini-rant shows Sessions is a small man with a small mind and a willing participant in spreading the Trump Administration's narrative of victimization -- something painfully embarrassing to observe when its being issued by the people leading one of the most powerful nations in the world.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: attorney general, courts, doj, donald trump, jeff sessions, judiciary, separation of powers
Reader Comments
Subscribe: RSS
View by: Time | Thread
Fulfilled expectations
To be fair, the entire administration is essentially internet randos, starting with the dude at the top, @realDonaldTrump.
[ link to this | view in chronology ]
One of the advantages of dictatorships...
Is that they're fast. Laws don't go through a system of deliberation through committee, just whatever the king says, goes. And if that suddenly means all Catholics are illegal, well the executions begin post haste.
It's exactly that problem -- that a regime change could suddenly criminalize huge swaths of the population -- that our constitutional framers fled when they came to the new world. And it's exactly that kind of problem they were trying to prevent by setting up a system that involved a lot of individuals to consent (or at least compromise) before sweeping legislation could get passed. And to make sure they didn't get too crazy (because they have and will), they made another branch of government to make sure (more or less) it all abides by prior rules, specifically the ones in the Constitution.
And, curiously, it is that the kind of thing -- again, that a regime change could suddenly criminalize huge swaths of the population -- that the Trump administration seems eager to bring back into favor.
Sessions just hates it when due process is enforced.
[ link to this | view in chronology ]
Re: One of the advantages of dictatorships...
[ link to this | view in chronology ]
Re: Re: One of the advantages of dictatorships...
These are laws, not rules in a board game and the fact you know what "enumerated powers" are shows you are trying to mislead people.
[ link to this | view in chronology ]
Re: Re: One of the advantages of dictatorships...
It will come as no surprise that the judiciary sees things differently. In Marbury v. Madison, 5 U.S. 137 (US 1803), the supremes said that the idea that a written constitution did not imply judicial review would be an ``absurd result''.
In other words, when we enumerate the limited powers, judicial review pretty much falls out of that. If you have a written constitution and a judiciary, then you get review for free: no further enumeration is required.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Sessions, Conforming to EXACTLY What One Expects
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
I had to vote yours as Funny. "Der Groppenfuher"
Priceless,
Aric
[ link to this | view in chronology ]
I am outraged at this disrespect for our fearless agent orange loud mouth twit.
[ link to this | view in chronology ]
Re:
The problem seems to be that Sessions has a different idea as to exactly what the 'assigned duties' of the judicial branch are, with 'acting as a check against oversteps by the executive branch' apparently not on the list in his mind.
[ link to this | view in chronology ]
Re: Re:
Employee performance appraisals sometimes include a section on whether said employee has a grasp of the policies, practices and procedures in place and whether they adhere to them. Anyone who has worked a government contract has probably run into this requirement to document and police same.
So, Sessions wants his minions to go against the practices and risk termination all because they just simply like the guy?
[ link to this | view in chronology ]
"because they just simply like the guy"
Yes.
Sessions' view of duty in civics seems to parallel closely with Trump's, specifically loyalty above all.
It's a very early-medieval ideal, that you'd kill your your own kin, violate hospitality or commit mortal sin if your liege commanded you to. And it's made worse in Trump's case that he doesn't and wouldn't extend that same loyalty in reverse.
During the Renaissance we started looking away from vassal-liege hierarchies, instead commanding loyalty to a nation, to its flag and to the law of the land. It's from this tradition that we still have a pledge of allegiance. (Albeit, we cheapen it when we force alien children to say it when they have no cause to do so. Then such pledges feel more like devices of indoctrination).
At any rate, Sessions, as an antebellum traditionalist probably regards himself as a lord by divine right, and thanks to Christian doctrine to justify slavery of Africans (because Christians are proscribed from enslaving Christians) he assuredly believes that non-whites are inferior, more savage creatures than himself. And as a lord, he probably does commonly expect loyalty to him from his inferiors above loyalty to law or nation.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
These are Deplorable Truths
[ link to this | view in chronology ]
Re: These are Deplorable Truths
[ link to this | view in chronology ]
Truth isn't truth
There are facts verified by multiple independent sources. From those we can determine strong hypotheses. If facts are numerous and consistent, and we can use our hypothesis to predict future events, we may be onto a theory.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
The US is a step TOWARDS liberty.
It's a matter I wrestle with, given I was indoctrinated myself in the California School System, and was taught American Exceptionalism, the accepted account of history and to say my Pledge of Allegiance with the best of them.
And yes, what we told the US is, isn't. It never really was.
Part of that, are the big glaring exceptions written into the system that disenfranchised slaves and women, but the other part was control by the elite, that our aristocrats choose who gets nominated so it doesn't ever really matter who we elect.
Ours is a feudal system like the kingdoms before it. The people are more involved than they were in the the Constitutional Monarchy that was the England we left, but those who weren't slaves were often share-croppers or workers in a truck system or came here as prisoners to their debt.
We're still peons. We are not just called that. And we're free to starve and die if our loyalty to our creditors and employers prove insufficient.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Bullshit Bingo
[ link to this | view in chronology ]
It should be a GOOD thing
[ link to this | view in chronology ]
You left out the word Allegedly
Shouldn't that be "the people allegedly leading"?
[ link to this | view in chronology ]
Re: You left out the word Allegedly
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Resign, Trump, and take the rest of your pathetic minions with you.
[ link to this | view in chronology ]
Re:
Even if Mueller indicts trump, it takes congress to get off their lazy asses and do their damned jobs.
"having the federal government run by a criminal syndicate is embarrassing and frustrating"
Yes, people have been embarrassed and frustrated for many decades now.
[ link to this | view in chronology ]
They seem to care more for grandstanding, and/or the well-being of non-citizens, than orders which benefit the citizens in our country.
[ link to this | view in chronology ]
Re:
We all know that politicians "grand stand" on a routine basis, it is second nature to them - all of them - but you knew that.
Not sure why some folk want to be able to abuse those from foreign lands, is it a psychological thing where it makes you feel better about yourself?
"orders which benefit the citizens in our country."
LOL - like what for example? I am aware of some that benefit the wealthy but that is ablut it ... perhaps you an example?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
"the courts have been legislating"
The courts legislate from the bench all the time. It's only in vogue to accuse them of such when one doesn't agree with a majority ruling.
But it's part of the position when one chooses to consider the spirit of a law and apply it to the context of current events, or when a justice feels a law is dumb, look at its letter and see if that can be used to interpret it to do minimum damage.
Which, again, is great for those who agree with the given justice. And aggravating to those who don't.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]