By DoD Photo by Navy Petty Officer 2nd Class Dominique A. Pineiro/Released [Public domain], via Wikimedia Commons

This has been a tough week for the justice system in the United States. Legal and criminal justice advocates may be reeling from a one-two punch that, when examined, closely places the evenhandedness of the Department of Justice in serious question.

NPQ is covering these two stories because the justice system—its independence and integrity—is core to our democracy, and events of the last week have been alarming on two major fronts. 

Reverting to Overincarceration: Sessions’ Connections to Private Prisons

Remember, in the waning days of Obama’s presidency, when Deputy Attorney General Sally Yates declared that the federal government was phasing out its contracts with private prisons? The role of mandatory sentencing for drug crimes role in expanding sentences for even minor nonviolent offenses by years had been acknowledged, and the prison population was actually beginning to decline. Those were the good old days, when for about a minute, overincarceration was seen as a problem rather than a market by people on both sides of the political aisle. Criminal justice reformers crowed, and the stock value of the two largest private prisons in the country plummeted.

At the time, I suggested no chickens be counted. Private prisons are a $4.8 billion dollar industry, and their success depends upon crime—and the public’s fear of crime—being high. Consider, if you will, President Trump’s dire and untrue representations about a spike in violent crime and the dangers that come from undocumented immigrants. Consider, too, Attorney General Jeff Sessions’ ties through former aides to the private prison industry.

In February, our new attorney general rescinded that order regarding the use of private prisons. Last week, he followed that up with a memo to federal prosecutors directing them to charge offenders with the “most serious, readily provable offense.” They should deviate only in special circumstances and with the okay from a U.S. attorney general or assistant attorney general.

“This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency,” Sessions wrote. “Any inconsistent previous policy of the Department of Justice relating to these matters is rescinded, effective today.” Thus, the years-long work of advocates on reversing the terrible toll of mandatory sentences was set back, at least at the federal level.

As we mentioned, Sessions has connections to the private prison industry, and the stock prices of those large private prison companies have recovered since Trump’s election. On the day after the election, we wrote, “[s]hares of the GEO Group jumped by 30 percent, and the Corrections Corporation of America saw its stock increase by 40 percent. GEO Group’s stock is trading near its 52-week high, while CCA’s rebound still leaves it one-third below its August share price.” Reports Vocativ, “On Nov. 7, 2016, a day before Trump won the presidential election, GEO Group’s stock was worth $10.61 a share and CoreCivic’s was at $14.19. As of Thursday, they were worth $32.10 and $32.81, respectively.”

At the time, we expected that those facilities might be filled, at least at first, with immigrants lacking legal status under Trump’s new policies in that area. But, in part due to the public response, the growth has been less than perhaps expected. 

The Russia Investigation: An Obstruction of Justice?

Meanwhile, Sessions has been busy elsewhere, sending a memo to the president to back one sent Sessions by Deputy Attorney General Rod Rosenstein, urging Trump to fire James Comey as Director of the FBI. The timing of this was clearly suspect, coming a week after Comey had testified that the investigation at the FBI  about links between the Trump campaign and Russia was not only quite active but was focused in part on Trump advisors.

In his memo, Sessions wrote, “Based on my evaluation, and for the reasons expressed by the Deputy Attorney General in the attached memorandum, I have concluded that a fresh start is needed at the leadership of the FBI.”

But why were we hearing from Sessions on this issue?

“During the course of the last several weeks, I have met with the relevant senior career Department officials to discuss whether I should recuse myself from any matters arising from the campaigns for president of the United States,” he said in his written recusal released on March 2nd. “Having concluded those meetings today, I have decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.”

Sessions thus recused himself after being faulted for failing to disclose contacts with the Russian ambassador to the U.S. during the presidential campaign when he was a high profile surrogate for Trump in addition to his role as a U.S. Senator. In the eyes of some, Attorney General Sessions’ open participation in former FBI director James Comey’s termination last week flouts that commitment to recuse himself, placing his tenure at risk.

Trump’s admission to NBC News anchor Lester Holt during an interview that he was thinking of the Russia investigation when he fired Comey—a statement that contradicted the denials of the rest of the crew—did no one but the general public any favors. Readers will recall that statements by the administration have been used in more than one court ruling to reverse a Trump executive order.

Stephen Gillers of the New York University School of Law says that Sessions flagrantly violated his recusal. “The scope of the recusal is very broad,” Gillers said. “‘any existing or future investigations of any matters related in any way to the campaigns for President…’ The grounds for firing Mr. Comey in the Rosenstein memorandum are explicitly stated to be Mr. Comey’s public comments about Mrs. Clinton, during the campaign and prior to the election. These grounds are plainly encompassed within Mr. Sessions’ description of the broad scope of his recusal.”

Kathleen Clark of Washington University’s School of Law said, “There is strong evidence that the firing was related to the investigation, and if Sessions had any access to any information indicating that they were related—that the potential firing was related to that investigation—he had an obligation to recuse.”

Some legal experts say that since it was a voluntary self-recusal, he was obligated only to himself, and therefore the violation is not actionable. Further, the investigations have been conducted by the FBI at a level below that of the FBI Director, though Comey has reportedly received frequent briefings on progress. It’s a debatable question whether Comey’s employment status would affect the inquiry. Comey’s deputy insists that the investigations are unaffected by Comey’s departure, and others suggest that Comey’s firing only invigorates the investigators. Jennifer Rubin of the Washington Post writes, however, that other legal experts see this situation as potentially career-ending.

Refusing to recuse oneself from a conflict or breaking the promise to recuse from a conflict is a serious breach of legal ethics.

“Someone could file a bar complaint, and/or one with DOJ’s office of professional responsibility, if Sessions had a conflict of interest when it came to the firing decision, and if he did not follow the ethics rules, including those of DOJ by acting when he had a conflict of interest,” legal ethics expert Norman Eisen tells me. “The fact that he broke his recusal commitment, if he did, would be relevant context, and violating an agreement can sometimes in itself be an ethics violation.”

In sum, Sessions has risked his law license, whether he realized it or not. He needs to testify immediately under oath; if there is no satisfactory explanation, he must resign. The alternative could be impeachment proceedings.

Laurence Tribe, a well-known constitutional law expert, thinks potential impeachment should extend further up the ladder. “As I see it, the President’s discharge of FBI Director Comey on a clearly pretextual basis for the obvious purpose (even if unlikely to be achieved) of shutting down the FBI’s then-accelerating investigation into possible collusion between the Trump campaign and Russia was on its face an obstruction of justice, the very same charge that the first Article of Impeachment against Richard Nixon made.”

On Saturday, Tribe called for impeachment proceedings against President Trump in an opinion piece in the Washington Post, based on what he says is the president’s own participation in an obstruction of justice.

Consider, too, how Trump embroiled Deputy Attorney General Rod J. Rosenstein and Attorney General Jeff Sessions, despite Sessions’ recusal from involvement in the Russia investigation, in preparing admittedly phony justifications for the firing on which Trump had already decided. Consider how Trump used the vice president and White House staff to propagate a set of blatant untruths—before giving an interview to NBC’s Lester Holt that exposed his true motivation.

Trump accompanied that confession with self-serving—and manifestly false—assertions about having been assured by Comey that Trump himself was not under investigation. By Trump’s own account, he asked Comey about his investigative status even as he was conducting the equivalent of a job interview in which Comey sought to retain his position as director.

Further reporting suggests that the encounter was even more sinister, with Trump insisting that Comey pledge “loyalty” to him in order to retain his job. Publicly saying he saw nothing wrong with demanding such loyalty, the president turned to Twitter with a none-too-subtle threat that Comey would regret any decision to disseminate his version of his conversations with Trump—something that Comey has every right, and indeed a civic duty, to do.

To say that this does not in itself rise to the level of “obstruction of justice” is to empty that concept of all meaning. Obstruction of justice was the first count in the articles of impeachment against Nixon and, years later, a count against Bill Clinton. In Clinton’s case, the ostensible obstruction consisted solely in lying under oath about a sordid sexual affair that may have sullied the Oval Office but involved no abuse of presidential power as such.

But in Nixon’s case, the list of actions that together were deemed to constitute impeachable obstruction reads like a forecast of what Trump would do decades later—making misleading statements to, or withholding material evidence from, federal investigators or other federal employees; trying to interfere with FBI or congressional investigations; trying to break through the FBI’s shield surrounding ongoing criminal investigations; dangling carrots in front of people who might otherwise pose trouble for one’s hold on power.

Yes, it’s been a loudly busy week for Sessions. One wonders at what point Trump will see him as a grandstanding problem rather than a deployable asset. Once that happens, we may start to hear less from him; the firestorm he has helped create may be enough to set ejective mechanisms in motion.