U.S. Attorney General Jeffrey Sessions joined me this morning to discuss threats to First Amendment freedoms as well as other pressing topics at the Department of Justice:
HH: So pleased to welcome back to the program Attorney General Jeff Sessions. General Sessions, welcome, good to have you this morning.
JS: Thank you, Hugh, good to talk to you.
HH: On October 6th, you issued a memorandum, Federal Law Protections For Religious Liberty. Today, you’re talking about religious liberty, I am told. Why the emphasis now on religious liberty and the Free Exercise Clause?
JS: The President asked us directly at the Department of Justice to review the law and to ensure that people in this country are entitled to freely exercise their religion. Hugh, you had time in the Department of Justice, and you know the Constitution. It says right to, you know, Congress, government can’t establish a religion. Then it also says it can’t prohibit the free exercise thereof. And there’s great concern around our country, and I’ve felt this for years, that the government is constricting people’s honest and dutiful expressions of religious faith. So we have set forth the law, and we’re going to defend the right of people to express their religion in appropriate ways.
HH: Probably the most important case with regards to free exercise rights in 30 years is coming before the Court this fall in Masterpiece Cake Shop. The Department of Justice has filed an amicus brief arguing that the baker in that case need not be obliged to create a cake for a same sex wedding. It’s a very important case. I’ve read the brief the DOJ filed. Will the Solicitor General be arguing that case, Mr. Attorney General?
JS: Solicitor General did prepare it, and as to who will actually stand before the Court, I’m not sure. But we feel strongly about that case. And I believe in any kind of fair analysis of it, we have taken a sound position.
HH: It will be controversial, because it involves same sex wedding. But it in no way seeks to overturn the ruling on same sex wedding. It simply points out creative expressions cannot be compelled. Is that not the bottom line of the brief and the position of the Department of Justice?
JS: That is an excellent summary. You have read the brief, I do believe.
HH: I’ve got it in front of me.
JS: So few people…they ask these questions, and they don’t even hardly know. But that is exactly correct. And they’re just, why should you have to compel somebody to do something in these circumstances that they feel requires them to participate in something they believe violates their religious belief?
HH: I want to point out, though, for people…
JS: I think that states we ought to be more respectful of people, really, on both sides, perhaps, to express themselves without always ending up in court.
HH: And I want people to know the Department of Justice is also argu[ing] “that most businesses, even those that provide services related to expressive events such as weddings, cannot show that they engage in protected expression, thus a commercial banquet hall may not refuse to rent its facilities, nor may a car service refuse to provide limousines or a hotel refuse to offer rooms, nor may an event service refuse to rent chairs. But such products, the hall, the limousine, a hotel room or a chair are not inherently communicative.” You are, I believe, Mr. Attorney General, protecting speech and free exercise of religion with this brief.
JS: I believe so, and I think you fairly said that there’s specific public accommodation statutes that protect individuals when they go into public restaurants and things of that nature. So you’re correct about that, but there are free exercise rights to, as I think we properly expressed in our brief, and we believe the law if properly enforced and as basically is in fact, protects expression of religion. But many government agencies have been going beyond that in attempting to impose rules on religious people we think went too far. The President, President Trump said you make sure that doesn’t continue to happen, issue a guidance, and that’s what we’ve done.
HH: Now the Solicitor General when he appears, he is the 10th Justice, so it does matter who shares time with the petitioner here. Will you talk with the Solicitor General about representing the United States in that argument, Mr. Attorney General?
JS: Yes, we’ve discussed it previously, yeah.
HH: So do you think he will be doing it?
JS: I’m not sure whether Noel Francisco, who’s a great lawyer, will personally argue that case. But I know he is exceedingly well-informed on it, and is very, because I’ve talked to him about it.
HH: I look forward to hearing that decision. A couple of other issues I want to run through with you, Mr. Attorney General. I know you’re recused from most of the Russia stuff. But are you recused from the investigation into the Steele dossier and GPS Fusion?
JS: Well, I have not made a formal announcement on what kind of recusal I might have there. But I could well be, and so…
HH: How about the Uranium One case. Are you recused from that?
JS: Well, the, you know, of course there was one case that’s already been prosecuted, and people have been sentenced on, but as to what may happen after that, if anything, I’m not able to comment.
HH: And are you recused from any investigations into the Clinton Foundation?
HH: All right. Finally, we were talking about free speech, and I want to go back to free speech. Are you satisfied that the IRS’ abuses of free speech were adequately investigated by the Department of Justice?
JS: We have reviewed those and continue to be open to receiving information on those matters. And we’ve had quite a few lawsuits that have been filed against the Department of Justice. We believe that we announced today a settlement of some of those cases, and we feel that the Internal Revenue Service was in error, made some big mistakes to the detriment of citizens of our country, that the IRS can never, ever, ever be used to place a finger on the scale of justice for political reasons. And we’re very unhappy about the way that has occurred. We’ll not comment on the existence or not of a criminal investigation.
HH: No one was punished, and so do you understand why people believe that it looks like they got away with this Scot free, Mr. Attorney General?
JS: I do understand that people feel about it strongly. I was a very strong critic when I was in Congress. But, well, the head of the IRS was fired, and two or three others were terminated, too, or resigned under pressure. So it wasn’t as if nothing happened, but the, I understand the concerns of American people who never want to see an abuse occur.
HH: Let’s turn to some other big players and their impact on speech, Mr. Attorney General. The NCAA has grown to be such a powerful entity that they can dictate to states which laws they may have and which laws they have not. Now it’s been previously ruled in the Tarkanian case that they are not a state actor. Do you think we ought to revisit whether or not the NCAA is a state actor and therefore subject to respecting people’s 1st Amendment rights?
JS: I’m not able to give you good comment on that, Hugh. It’s a complex matter. None of those issues have been discussed for quite a number of years. And I should be careful before I comment on it. I’m not prepared to give you a good answer right now.
HH: Would you be willing to have the Civil Rights Division look into it and report back to you, because I think the NCAA is out of control.
JS: Well, actually, we have, there are a number of rules that they have issued that impact universities, that could even impact antitrust and issues like that have been raised with the Department of Justice Antitrust and Civil Rights Division. And I will look at it.
HH: Let me ask you as well about Big Tech. Big Tech has begun to alarm me, largely because of Franklin Foer’s book, World Without Mind. The New York Times reports today, Cecilia Kang, that Amazon, Apple, Facebook, Google and Microsoft spent $14 million dollars in lobbying in just the last quarter. Should the Anti-Trust Division be opening investigations into Big Tech and the concentration of power and wealth, Mr. Attorney General?
JS: You know, Hugh, that the Antitrust Division does have certain powers to examine matters. It also doesn’t have power to examine certain matters, and shouldn’t impose itself unlawfully in free enterprise. So these are tough calls. I would just say that I believe, I think the President believes, that big business needs to be held accountable, must follow the laws as they are written, and the amassing of certain economic powers can adversely impact free markets. And the Antitrust Division can have jurisdiction. But I’m not prepared to say take such a broad question you just raised. You know, let’s take a specific set of facts and justify any investigation of any industry.
HH: I hope they’re looking. It’s becoming a little bit chilling how big they are. Let me turn to marijuana, Mr. Attorney General. A lot of states are just simply breaking the law. And a lot of money is being made and banked. One RICO prosecution of one producer and the banks that service them would shut this all down. Is such a prosecution going to happen?
JS: I don’t know that one prosecution would be quite as effective as that, but we, I do not believe that we should, I do not believe there’s any argument, because a state legalized marijuana that the federal law against marijuana is no longer in existence. I do believe that the federal laws clearly are in effect in all 50 states. And we will do our best to enforce the laws as we’re required to do so.
HH: But one prosecution that invokes a supremacy clause against one large dope manufacturing concern, and follows the money as it normally would in any drug operation and seizes it, would shut, would chill all of this. But I haven’t seen on in nine months, yet. Is one coming?
JS: Really analyze all those cases, and I can’t comment on the existence of an investigation at this time, Hugh, you know that, so, but I hear you. You’re making a suggestion. I hear it.
HH: I’m lobbying.
JS: (laughing) You’re lobbying.
HH: I’m lobbying as well about the Consumer Financial Protection Bureau, because I think it’s as unconstitutional as any agency I’ve ever seen.
JS: It’s unbelievable.
HH: Have you had that…
JS: I agree with you on that. I fought it in the Senate.
HH: Well, can we not bring, you know how the President, the previous president, they didn’t like a law, they just didn’t enforce it. Remember the Marriage Defense Act? They just said we’re not going to enforce it? Why doesn’t the Department of Justice take a page out of the Holder book and say we’re doing with the CFPB? It violates the Constitution?
JS: Well, there are some matters that are ongoing there. But I guess I’m not at liberty to say. But the idea of creating an entity that has its own source of funds, that’s unaccountable to Congress, is really problematic. And there are a lot of things that have been happening, and I know you always have been alert to, that represent erosions of the Constitutional powers like this, the President announced recently that you couldn’t continue to fund the Affordable Care Act, Obamacare, because the money is not appropriated by Congress.
JS: President Obama’s been spending the money. He didn’t, he has, so we, the President has concluded, and a judge has concluded, and others have concluded, that there was not an appropriation, and if there is not an appropriation, the executive branch, the president, can’t spend money.
HH: That’s the Anti-Deficiency Act. And I’m glad you guys enforced that.
JS: The Anti-Deficiency Act.
HH: One last question, Mr. Attorney General, we’re almost out of time. Has the Department of Justice been attacked by cyberhackers successfully?
JS: Wouldn’t be able to give you any in depth about that, but we know for a fact that all our agencies are continuing to be under cyberattack. Some of our adversaries around the globe are highly sophisticated, and some are investing more than they ever have before in penetrating our defense systems, penetrating our commercial companies, our American companies, and stealing technologies they have spent years and maybe billions developing, and immediately using it to weaken us competitively. We have got to do a better job of protecting our nation’s secrets and our nation’s technology, and our commercial technology for that matter.
HH: Good luck in that, Mr. Attorney General. Always a pleasure to speak with you. Good luck in your speech today and winning the Masterpiece Cake. I hope Noel Francisco argues that case. Thank you, Mr. Attorney General.
JS: All right, good deal, thank you.
End of interview.