As a presidential candidate, Donald Trump made extraordinary and unfounded claims about widespread voter fraud, declaring that the election was “rigged” against him and even suggesting that he would not accept the outcome if he lost. Remarkably, even after winning the election, the president-elect has continued to pound at the issue. On November 27, he tweeted of “serious voter fraud in Virginia, New Hampshire and California” and said that millions of people voted illegally. Election officials, politicians from both major parties, and others have rightly criticized these baseless claims.
But it would not surprise if Trump found a more receptive listener in his choice for Attorney General. Jeff Sessions’s prosecution of civil rights leaders for “voter fraud,” all of whom were acquitted, was a key factor in his rejection by a Republican-majority U.S. Senate for a federal judgeship in 1986. Now he has been nominated to lead the U.S. Department of Justice, the agency with the single greatest role in protecting voting rights. The Justice Department enforces all federal voting rights laws, civil and criminal; prosecutes election misconduct; issues policies and guidance on compliance with federal voting laws; and sends federal observers to monitor elections. It is currently engaged in ongoing litigation to protect voting rights in at least 6 states. Should the Department reverse course, and be guided by political goals rather than legal principle, it could seriously damage the institutions of American democracy.
There is reason to worry — because that is exactly what happened little more than a decade ago.
In 2007, the Justice Department was upended by scandal because it had pursued a partisan agenda on voting, under the guise of rooting out suspected “voter fraud.” Its actions during the George W. Bush administration were well outside the bounds of rules and accepted norms of neutral law enforcement. In pursuing this agenda, DOJ political leadership fired seven well-respected U.S. Attorneys, dismissing some top Republican prosecutors because they had refused to prosecute nonexistent voter fraud. Top officials hired career staff members using a political loyalty test, perverted the work of the nonpartisan Voting Section toward partisan ends, and exerted pressure on states and an independent government agency to fall in line with an anti-voting rights agenda.
Ultimately, the effort backfired badly. The U.S. Attorney firings touched off a wave of investigations that exposed just how partisan the Justice Department had become and how far it had strayed from its mission of neutral law enforcement. The result was the worst scandal to hit the Department since Watergate. The Attorney General, Alberto Gonzales, was forced to resign, as were other top DOJ officials. It also helped drive Karl Rove, President Bush’s chief White House strategist, from his job. Moreover, the Justice Department not only lost credibility with Congress, but it also lost in the courts, where judges repeatedly rejected the untenable anti-voter legal theories it had urged.
The past Justice Department scandal offers clear lessons that Sen. Sessions and his cohorts should take care to avoid. Having been down this road before, the Senate Judiciary Committee, in its confirmation hearings for Sen. Sessions, should secure his solemn commitment that voting rights in the Trump Justice Department will not be treated in the same fashion as they were in the Bush Justice Department, and that he will not repeat the mistake of allowing a partisan agenda to infect the Department. At a minimum, Sen. Sessions should pledge to:
- Faithfully enforce the laws of United States, and ensure that enforcement actions are based on the mandates of the law and not partisan interest;
- Reject efforts to pressure state officials, U.S. Attorneys, and other agencies to adopt anti-voter policies or advance a partisan political agenda;
- Uphold the mission of the Department of Justice, including its core mission to protect civil rights and the right of every eligible citizen to vote free from interference and discrimination;
- Preserve the integrity and institutional competence of the DOJ by ensuring that career staff are hired, assigned duties, and evaluated based on their competence, not their politics, consistent with federal law and longstanding policy; and
- Ensure U.S. Attorneys — and all other DOJ employees — are not harassed or removed for failure to adhere to a partisan political agenda.
This paper provides a detailed account of the Justice Department scandal in the mid-2000s. This history offers key lessons and guideposts as to what conduct the next Attorney General must avoid — and must promise to avoid.