Attorney General Jeff Sessions joined me this morning:
HH: I’m joined by the Attorney General of the United States, the Honorable Jeff Sessions. General Sessions, welcome, it’s a great honor to have you. I worked for two Attorney Generals long ago and far away, and I have said throughout this process you are more qualified than anyone I have ever seen in my lifetime take that office. Congratulations.
JS: Thank you, Hugh. It’s good to be back with your program, and I do love the department, having spent 15 years here. And it’s so great to return. And there’s a lot of good things we can do.
HH: Let’s start with some questions, Mr. AG. Any intention on your part or the President’s part to close Guantanamo Bay detention facility?
JS: Well, I have not favored that. I believe it’s a, I’ve been there a number of times as a Senator, and it’s just a very fine place for holding these kind of dangerous criminals. We’ve spent a lot of money fixing it up. And I’m inclined to the view that it remains a perfectly acceptable place. And I think the fact that a lot of the criticisms have just been totally exaggerated.
HH: The suspected killers of 9/11, of 3,000 Americans, are there, but the military justice system in place is not getting them to trial. Now you work hand in glove with DOD on that. It’s kind of a scandal that no one has faced justice 15 years later. Do you expect to accelerate that process?
JS: Hugh, that’s a good question. I think it’s time for us to think through how we’re going to use Guantanamo, to what extent we’re going to use military commissions to try these unlawful combatants. They are like prisoners of war, and prisoners of war can be held throughout the time of the conflict. You don’t have to release them so they can continue to kill you. But at the same time, if they have violated the rules of war, they can be prosecuted. And we’ve got to work our way through this. It would be done, if done, by the United States Military, their JAG prosecutors.
HH: All right, I want to, I gather you’re in favor of expediting it, though?
JS: Well, I do. As a matter of act, we’ve got to think this through. We’ve got to get the military on board. By now, we should have worked through all the legal complications that the Obama administration seemed to allow to linger and never get decided, so nothing ever happened. So it is time for us in the months to come to get this thing figured out and start using it in an effective way. In general, I don’t think we’re better off bringing these people to federal court in New York and trying them in federal court where they get discovery rights to find out our intelligence, and get court-appointed lawyers and things of that nature.
HH: And last question on this subject, General Sessions, if the President says to you we’ve captured some new unlawful combatants. I want to send them to Gitmo. Is your advice to him send them, bring them on in, we have plenty of space?
JS: Yes. Oh, there’s plenty of space. We are well equipped for it. It’s a perfect place for it. Eventually, this will be decided by the military rather than the Justice Department. But I see no legal problem whatsoever with doing that.
HH: I want to turn now to a case pending before the United States Supreme Court, the case of Trinity Lutheran Church of Columbia V. Pauley scheduled for argument on April 19th, probably the most important Free Exercise Clause case in a long time. You’ve named Noel Francisco as your solicitor general designate. Will Justice Gorsuch be confirmed by then? Will Noel Francisco argue that case?
JS: Well, that’s, those are good questions. Noel hasn’t joined us, yet as solicitor general. We’ve got to get him confirmed, and that’s probably weeks away. And then we’ve got the question of when Judge Gorsuch could be confirmed. I’m hoping that will move right along. There can be some delays on the Supreme Court, because you know, you’ve got to have a super majority. It’s subject to a filibuster at this point. so we’re hoping Judge Gorsuch is so fabulous, his record is so strong, and he just simply believes that you should follow the law as written. He doesn’t want to make up law. That means he’s not a threat to our liberties. I think, I believe he’s going to have bipartisan support, and I’m hopeful that he can move right on through. We’ll see. I can’t give you a date on when I would expect him to be confirmed.
HH: Now this 1st Amendment case, so important to us, though. Who’s going to argue it? And do you, have you had a chance, yet, to figure out whether or not the United States Government will argue to overturn the very bad Lemon Test and indeed declare all of the state Blaine Amendments unconstitutional, given their original anti-Catholic bias? That’s deep in the weeds, but it matters a lot.
JS: Well, you understand this. But I need to be careful before I opine on it. So I’ll kind of dodge that question right now. We’re going to be putting together a great team in the solicitor general’s office. As you know, Hugh, it’s an important office. The solicitor general is the greatest lawyer job in the world, they say. You get to stand up before the United States Supreme Court and represent the United States of America. So it’s a great honor, and we’re going to try to make sure that any lawyer arguing for us in courts of this country are capable and principled, and know that we serve under the Constitution and not above it.
HH: Would you tell me, at least, though, Mr. Attorney General, that Trinity Lutheran, you will review personally the arguments being made, because they can go for a small ball win, or they can go for a big win on this for religious freedom. And I’m for the going for the big win on this one.
JS: Well, I will. That’s a commitment I’ll make, Hugh.
HH: I appreciate that.
JS: Because it is an important case, and we will definitely try to do the right thing on that one.
HH: There are 18 Circuit Court vacancies. There are zero nominees. When do we see some nominees for these crucial judgeships, AG Sessions?
JS: Well, I believe they are moving along fine. They have to do, well, we’re not, I won’t say we’re fast as we should be. I will say I know some great nominees are moving before the President actually submits their names. They have to do a background check, has to study the potential nominees’ opinions, because those courts of appeals are very important. And that’s a matter that we take very seriously, and I think we’ve already seen by the actions of the federal courts in blocking the President’s executive order that you’ve got to have judges who show discipline, who recognize that the other branches of government have legitimate Constitutional powers, and just show restraint. And we haven’t seen, we’ve seen too little of that sometimes, I think.
HH: Now General Sessions, you were a senator, so you’ll get this question. There are some states with circuit vacancies. I can think of Connecticut for the 2nd Circuit. My friend, Carol Platt Liebau, would be a terrific judge, or New Mexico, where John Eastman would be a great judge on the 10th Circuit, a vacancy. When there are two Democratic senators, how are you going to help find circuit court judges for there? And do you care what the Democratic senators say to you about those vacancies?
JS: Well, you want to listen to what they say. However, Hugh, with regard to circuit judges, it’s more, these are multi-state circuits. And therefore, unlike a district judge, where home state senators have a lot of power on the blue slip power, that’s less so with regard to the circuit vacancies. And it will be, the President has more ability and freedom to pick the best kind of judge for those slots.
HH: Do you approve of that blue slip process for district court judges? It’s brought us an endless run of kind of good judges in California, but no ideological edge to them, because we’ve always had two blue state senators.
JS: Well, that’s a good point. It’s a power by history. It has probably prevented, not probably, it has definitely prevented in a lot of states like my home state, with two Republican senators, we’ve been able to get even under President Obama some moderate to liberal judges rather than more radical judges that might have occurred.
HH: So that’s an ambivalent answer. What about the 60 vote threshold for Supreme Court justices. I want that to go the way of the Reid Rule and appellate judges. What do you think, General Sessions?
JS: Well, you’re aggressive on this.
JS: You’re getting a little hungry smelling victory out there.
JS: Well, that, we need to get this Supreme Court done, great judges put on the Court who understand they’re not above the law, but serve under it. They don’t get to make law. If they do, they can run for the Congress. And so I think that will be a defining issue in the years to come for the Supreme Court. We’re not going to, Senator McConnell has said that he does not believe, how did he say it? He said Judge Gorsuch will be confirmed.
JS: And our next nominee will be confirmed. So that could mean that some of these traditions may not hold.
HH: Do you have any reason to expect another vacancy in the summer?
JS: No more than you, Hugh.
HH: All right.
JS: Your judgment is as good or maybe better than mine.
HH: Let’s talk about the rule of law. I have a piece coming out in the Washington Post about this on Sunday, Attorney General Sessions. One RICO prosecution against one marijuana retailer in one state that has so-called legalization ends this façade and this flaunting of the Supremacy Clause. Will you be bringing such a case?
JS: We will, marijuana is against federal law, and that applies in states where they may have repealed their own anti-marijuana laws. So yes, we will enforce law in an appropriate way nationwide. It’s not possible for the federal government, of course, to take over everything the local police used to do in a state that’s legalized it. And I’m not in favor of legalization of marijuana. I think it’s a more dangerous drug than a lot of people realize. I don’t think we’re going to be a better community if marijuana is sold in every corner grocery store.
HH: No, but it would literally take one racketeering influence corrupt organization prosecution to take all the money from one retailer, and the message would be sent. I mean, if you want to send that message, you can send it. Do you think you’re going to send it?
JS: Well, we’ll be evaluating how we want to handle that. I think it’s a little more complicated than one RICO case, I’ve got to tell you. This, places like Colorado, it’s just sprung up a lot of different independent entities that are moving marijuana. And it’s also being moved interstate, not just in the home state.
JS: And neighbors are complaining, and filed lawsuits against them. So it’s a serious matter, in my opinion. And I just came from a big rally in New Hampshire yesterday, Hugh. This is, this opioid problem is just huge. There were 9,000 high school and junior high school students there. A mother I met who had lost a son three months before, a child, and she said there were 50 more mothers there who’d lost children speaking to those kids. We’ve had this huge opioid surge in America, 120 people a day die from drug overdose. And I do believe, and the President has issued an order to the Department of Justice to crack down on drugs and these international cartels that are moving this Fentanyl that’s so deadly into our country. And we’re going to step up that in a very vigorous way as I talk to United States Attorneys yesterday by conference call.
HH: Now let me switch to the Department itself, Mr. Attorney General. It had a bad eight years. I’m a proud veteran of the Department of Justice, as you are. But the IRS case, the Fast and Furious case, Secretary Clinton’s server, the Department of Justice came under great criticism. How about an outside counsel, not connected to politics, to review the DOJ’s actions in those matters with authority to bring charges if underlying crimes are uncovered in the course of the investigation, and just generally to look at how the Department of Justice operated in the highly-politicized Holder-Lynch years?
JS: Well, I’m going to do everything I possibly can to restore the independence and professionalism of the Department of Justice. So we would have to consider whether or not some outside special counsel is needed. Generally, a good review of that internally is the first step before any such decision is made.
HH: Will you be looking at the IRS investigation specifically, because that left many of us thinking that the Department of Justice had laid down for a terrible abuse of political power?
JS: It does. That circumstance raised a lot of questions in my mind, and when I was in the Senate. So it is a matter of real concern to me.
HH: I want to talk to you about the Department of Justice as well. You protect people from fraud. In the United States, there are a number of states, including where I am today, California, but also Illinois and Connecticut that have these massive unfunded pension liabilities. And you realize, like the Teamsters Fund was repeatedly prosecuted by the Department of Justice, because it was run fraudulently. These are state employee pension funds that are not able to pay what they’re promising to pay. Do you think there’s a federal role there to investigate these state pension funds to find out whether or not they are leading people on?
JS: A lot of this is just poor, reckless and political weakness in not ensuring that the revenue that goes into these funds is sufficient to meet the outflow demands that are going to happen in the future. You’re right. This is hugely important. It may not be criminal. And we have other departments that do work on those issues, like Treasury, and others that could get into that. But if there’s fraud, and sometimes there has been, we would be quick to act, and take action against it, because we’re talking about the future of American workers’ retirement.
HH: Yeah, I do think it’s absolutely fraudulent what they do. I hope you’ll look at that. Last question.
JS: I have not studied the California plan and some of the others that are so huge.
HH: Last question about conflicts. The Emoluments Clause hyperventilating, for example, it’s calming down. But are you satisfied with the structure put in place by White House Counsel McGahn about the President’s conflicts? Do you think it is sufficient to the day? You know, it was Fred Fielding advised on it, McGahn worked hard on it. I’m happy with it. What do you think, Mr. Attorney General?
JS: I have not personally reviewed it, but I know that no president has spent more time, and no White House Counsel has spent more time than Don McGahn in trying to get this right. President Trump has said he wants to do it right, and they’ve taken considerable steps in that regard. I believe they are in compliance, or will be in compliance as the law would require. But when you’ve got, you know, vast holdings, you have to spend extra time to try to get it right.
HH: Oh, I skipped over one question, Mr. Attorney General, that the Chief Justice won’t like if I do. Are you in favor of raising judicial pay so that we keep the judges we put on the bench longer?
JS: Well, I have never been one that wants to surge them up too much. You want to raise senators and congressmen pay, too?
HH: No, no, no I don’t. I just want to keep the judges.
JS: (laughing) Well, we have co-equal branches. Why should they be paid more?
HH: Because we need them to stay longer.
JS: Well, you might be right, so that’s important. Hugh, did you see today that the front page of the Washington Times, that a nose dive in illegals crossing the border?
HH: I did.
JS: This is something I have, I think you and I have talked about.
HH: Many times.
JS: If we do this thing right, people will stop coming. If you send a clear message that the border is not open, and you’re not going to get in successfully, and we are going to catch you, you’ll see a significant decline, 40%, I believe, already.
HH: Congratulations on that, Mr. Attorney General. Come back early and often. We love talking to you, and thanks for your commitment on Trinity Lutheran. I appreciate it, sir.
JS: All right, Hugh. Good to be with you.
HH: Thank you, Attorney General Jeff Sessions.
End of interview.