Attorney General Jeff Sessions is causing low morale and infighting among “rank-and-file employees” by doing his job of implementing Trump administration policies at the Justice Department, the New York Times’ Katie Benner claims, based on anonymous hearsay, in a recent article. Intending to paint him negatively, the Times accidentally paints a picture of a diligent and effective agency head who is achieving results over the objections of a large, entrenched, and politically extreme bureaucracy attempting to thwart constitutional accountability.
“During his 20 months in office, Attorney General Jeff Sessions has swept in perhaps the most dramatic political shift in memory at the Justice Department, from the civil rights-centered agenda of the Obama era to one that favors his hard-line conservative views on immigration, civil rights and social issues,” Benner opines.
Benner’s article is a great example of how so-called mainstream media come at the issue of governance from an entirely liberal political perspective. The liberal political views of bureaucrats are portrayed as neutral and beyond reproach. Political accountability of the bureaucracy, if at the hands of Republicans or conservatives, is considered suspect. The article is also a great example of journalism’s crisis of credibility. Let’s go through some of those failures.
Who Sets Policy?
In October 2017, Sessions authored a memorandum noting that Title VII of the Civil Rights Act of 1964 bars employment discrimination on the basis of sex. While a previous attorney general attempted to interpret this to include “gender identity,” Sessions accurately noted that sex, which is a biological reality, is specified in the 1964 law, while gender identity, which is based on subjective feelings, is not.
Benner falsely claimed that this memorandum “stripped protections” from people. She further falsely claimed that “Sessions consulted no departmental experts,” despite career attorneys in the civil and civil rights divisions being consulted.
Even so, the assumption that career bureaucrats must approve policy changes shows deep confusion about how the executive branch works in the American system. The people elect a president who appoints cabinet officials. These officials also have political appointees. In this way, the bureaucracy is accountable to the people. If cabinet officials were forced to follow the bureaucrats, there would be no need for cabinet officials or elections at all.
The Times clearly wants to suggest that rank-and-file employees are apolitical bureaucrats, as if that would justify rogue agency work not beholden to the American people through their political appointees. But they fail to make the case that they are apolitical. For instance, the Times quotes Diana Flynn, the former head of the civil rights appellate division who supported redefining sex to include “gender identity” and worked to implement that change in 2014. She said of Sessions’ return to the law, “Edicts came down, and it was up to us to try to implement them.”
While that is an accurate understanding of the American system, she didn’t mean it in a good way. You will never guess where this apolitical bureaucrat ended up after leaving the Justice Department. She’s now focused on transgender issues for Lambda Legal, and her Twitter feed is full-on Resistance. The Trump administration should not be forced to set its policies according to this political activist’s whims, even when she was a high-ranking bureaucrat.
Ignoring Obama’s DOJ
From the very first paragraph, the Times portrays Obama’s policy objectives neutrally as “civil rights centered” while describing Sessions as having “hard-line conservative views.” Later, we’re told:
Mr. Sessions’s shift in the department’s priorities reflected Mr. Trump’s campaign promises to be tough on crime and crack down on illegal immigration, much as former Attorney General Eric H. Holder Jr. took office in 2009 with a mandate to realize President Barack Obama’s vision on civil rights.
When you put it that way, the Obama administration suing nuns to force them to provide abortifacients sounds so much nicer and civil rights-y!
The Times acts shocked that Sessions and Trump decided not to defend aspects of Obamacare. “[P]olitical leaders urged a judge to find unconstitutional two of the law’s key elements, a reversal of the government’s longstanding position,” which led to a 27-year department veteran resigning in protest. The Times says an all-hands meeting was called to deal with the fallout.
It is beyond reasonable to be upset that the Justice Department is not enforcing and defending the law as written, regardless of one’s views of the law. But it is complete hypocrisy for the New York Times, which effusively praised Obama for abandoning defense of the law for the Defense of Marriage Act. The news story about that decision was filled with quotes praising Obama for his nuance and evolution on redefining marriage to encompass same-sex couples. The only opposition to politicizing the Justice Department was from “conservatives.”
Times reporters concluded that Obama had no choice but to stop defending the law. It did not occur to the activists at the Times that declining to defend the law for political reasons would establish an undesireable precedent. Similarly, there was never any mention of unrest or low morale caused by the Obama administration’s politicized “Fast and Furious” gunwalking scandal that led to the murders of numerous individuals.
Nobody Can Challenge Sanctuary Cities
One scare story put forth by the Times is that Sessions was aggressively looking for legal avenues to fight sanctuary cities:
In one instance, Mr. Sessions directly questioned a career lawyer, Stephen Buckingham, who was asked to find ways to file a lawsuit to crack down on sanctuary laws protecting undocumented immigrants. Mr. Buckingham, who had worked at the Justice Department for about a decade, wrote in a brief that he could find no legal grounds for such a case. Reminding Mr. Buckingham of the attorney general’s bona fides as an immigration hard-liner, Mr. Sessions asked him to come to a different conclusion, according to three people who worked alongside Mr. Buckingham in the federal programs division and were briefed on the exchange. To Mr. Buckingham’s colleagues, the episode was an example of Mr. Sessions stifling dissent and opening the department to losses in court. Mr. Buckingham resigned a few months later, and Mr. Sessions got his lawsuit. A federal judge dismissed most of the case, and the department has appealed.
Perhaps the specifics of the request make this story sound less ludicrous than it does here. In fact, that seems more than possible. The Federalist has published articles agreeing that the federal government can’t legally withhold funding for sanctuary cities under current law, for instance. But the idea that there is no legal rationale on earth to go after cities that are actively thwarting federal law is difficult to believe.
The article also mischaracterizes the Justice Department’s legal record under Sessions. While the Ninth U.S. Circuit Court did rule against Justice on this matter, the Ninth Circuit also ruled that Sessions’ travel ban was unconstitutional. Both rulings were appealed, and the travel ban was ultimately upheld by the Supreme Court in June. The fate of the sanctuary city case remains unknown.
The Trump administration has had many Supreme Court wins, which the Times buries in one line attributed to Justice’s Director of Public Affairs Sarah Isgur Flores in the 26th paragraph of the 38-paragraph story.
… Ms. Flores noted that [the department’s] reversals on workplace arbitration, voting rights, labor unions and the appointments of federal officials were validated by wins at the Supreme Court.
But really, what are four Supreme Court victories and counting compared to a couple-three disgruntled activists talking anonymously to the New York Times? Who is to say which is more enduring and newsworthy?
Gay Conservatives Not Welcome?
To paint a picture that Sessions has hurt morale, the Times tells the following story:
Internal events intended to boost morale have also proved tense. Guy Benson, a Fox News commentator, was chosen to speak at a gay pride event over the objections of the department’s L.G.B.T. affinity group, DOJ Pride, Justice Department lawyers said.
DOJ Pride members held a separate event, where one employee spoke about how progress for L.G.B.T. Americans had regressed under Mr. Trump.
The Times neglects to mention that Benson (disclosure: a friend and colleague) is an openly gay conservative as opposed to a random Fox contributor. His speech, which was as measured and thoughtful as any Benson speech, was well received.
Had DOJ Pride objected to Benson speaking because of his politics, as the Times claimed, that would mean that DOJ Pride suffered from crippling ideological bias. But multiple sources there say they did not object to his speaking. The separate event mentioned by the Times was not a competing speech but an awards ceremony. Attendees do not recall the comments the Times claims were made there.
For Crying Out Loud, Stop Saying Bruce Ohr Is a Nobody
Remember that the headline of the article was that Sessions was harming the rank-and-file employees. The article’s first mention of a “rank-and-file” Justice Department employee links to an article about Bruce Ohr, a key Justice Department official who is being investigated for his role in transmitting illicit Hillary Clinton campaign documents to the FBI.
But the article never tells readers that. In other articles over the last few months, Benner frequently claimed without evidence that Ohr was an unimportant and little-known “midlevel government worker.” The Times’ “strange insistence that Bruce Ohr is a big nobody” is “an effort at elision so strained it makes one hope the Times writers didn’t hurt themselves,” wrote one journalist.
Far from a mid-level government nobody, Ohr was one of the most senior officials at the Justice Department until he was demoted last year. He was integral to the Russia collusion narrative, serving as a conduit for the Russian-connected Christopher Steele to feed information to the FBI that was used to secure wiretaps and other surveillance on Trump campaign affiliates.
His wife worked with Steele for Fusion GPS, the firm secretly funded by the Clinton campaign to run the anti-Trump operation. Ohr quietly funneled this information both before and after Steele was terminated as an informant by the FBI for lying. His wife just refused to testify about her role in the Russia collusion narrative, citing dubious spousal privilege.
No Non-Resistance Sources
One major theme of the article is that Trump has caused a decline in morale by critiquing the actions of those involved in the Russia collusion narrative, and by critiquing Sessions for recusing himself from oversight of the meandering and undefined probe. But Sessions has repeatedly brushed Trump back, most recently in late August. (See: “Attorney General Jeff Sessions fires back after Trump’s criticism”) At that time, news reports claimed the response emboldened career employees at the department. But in this New York Times story, it gets only the briefest mention in the middle of a sentence.
It is difficult to believe that the handful of anonymous sources are an accurate representation of Justice’s many tens of thousands of employees. It’s even more difficult when the few named sources are radical activists or Resistance figures. Benner quotes Norm Eisen, a former Obama official who has a rather unhinged Twitter feed, and Benjamin Wittes, the friend of James Comey who regularly had access to and published information about how James Comey felt about sensitive issues. As a colleague noted of Wittes’ quote in the Times article, “Oh you got a sarcastic quote from Benjamin Wittes attacking the Trump administration? Did you also find ice in Antarctica?”
The article ends with an anecdote of Justice Department employees mocking Sessions and maligning Trump, but stopping when political appointees joined in their conversation. Whether that suggests an immature and unprofessional component of the bureaucracy or something else is up the reader.
It is not news that civil servants are overwhelmingly liberal and dislike the will of more conservative voters. An article like this should not ignore that basic tension that has long existed. Still, this attempted hit on Sessions could not have backfired worse, giving voters who support political accountability of the swamp hope that it can be achieved even when the bureaucracy, media, and other establishment entities are united to stop it.