The confirmation hearing for Senator Jeff Sessions to be attorney general will begin Tuesday. It is expected to be a contentious affair, with supporters and opponents focusing on his experience, priorities, and record. No doubt particular attention will be paid to any policy changes he expects to make at the Department of Justice and to his record on race and voting rights. It is important that these issues be fully explored.
At the same time, the core role of the attorney general — as the nation’s highest-ranking lawyer and prosecutor, and as the protector of the integrity of the Department of Justice — should not be ignored. This means that the attorney general must ensure that the Justice Department remains free of politics, insists on the highest ethical standards, and makes decisions based soley on the facts and the law. While the attorney general is appointed by the president, he or she is not the president’s lawyer.
The attorney general can and should implement the president’s broad priorities (for example, in the areas of immigration or violent crime) but must be careful that these do not dictate particular prosecutions or cases. So here are a few questions and answers I would like to see:
Senator: I don’t understand why Hillary Clinton was not prosecuted for those e-mails. The FBI obviously did a poor job. Would you reopen the investigation?
Answer: No. The FBI has investigated and reviewed this matter, and Attorney General Lynch concurred in the decision not to prosecute. We can’t have a Department of Justice that goes back and reviews prior decisions on a particular case, unless the investigation and decision of the prosecutors were fundamentally unfair or flawed. Individuals have the right to rely on prosecution decisions made in good faith without having to worry that these will be revisited when election results are tallied.
Senator: What about FBI Director James Comey’s decision in July to disclose the detailed results of the investigation, even after he announced that he was not recommending prosecution, and then a few weeks before the election to announce that he was reopening the investigation?
Answer: Both decisions were wrong. The FBI director reports to the attorney general and I will ensure that Department of Justice policy will be enforced.
Senator: I was pleased to see that President-elect Donald Trump made clear that the Clinton Foundation will not be investigated. I trust you will adhere to this decision?
Answer: Not necessarily. The president should not tell the attorney general whom to investigate or not investigate. I have no idea whether such an investigation is warranted. But the view of the incoming president has no bearing on what I should do. If the president instructed me to prosecute or not prosecute a particular individual or organization, I would decline. If necessary, I would resign.
There are some serious issues to consider in the confirmation process for attorney general. Some have to do with Senator Sessions’ history and background. But some should apply to any nominee for attorney general, no matter who is tweeting about them.
Donald K. Stern is a former US attorney in Massachusetts.