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In his June 13, 2017 Senate testimony U.S. Attorney General Jeff Sessions refused to acknowledge that destruction of evidence (such as possible tapes of the President’s discussions with James Comey) constitutes obstruction of justice. The chief law enforcement official of the country nakedly placed politics over precedent. Never before has an AG acted so shamelessly.
RUBIO: Do you know if the president records conversations in the oval office or anywhere in the white house some.
SESSIONS: I do not.
RUBIO: If any president was to record conversations in their official duties, would there be an obligation to preserve those records?
SESSIONS: I don’t know, senator. Probably so.
Sessions’ entire testimony was an act of obstruction of justice, strategically forgetting, dodging, delaying, and refusing to even consider let alone acknowledge matters of public record. It was like a Lewis Carroll story: Jeff’s Adventures in Dementia.
AG Sessions refused to even say what he was saying – dancing around asserting executive privilege, knowing that saying the words would push the investigation of the administrations illegality forward by allowing a legal challenge to such assertion. Of course he was aided in his obstruction by his fellow Republican southern male Senators, but when he refused to admit that destroying evidence is illegal the AG and his Emperor were laid bare.
Federal law enforcement recent disgraces include AG Alberto Gonzales’ 2007 firings of US attorneys for blatantly political purposes, but black letter law standards were not denied then. The 2002 torture memos were a sickening betrayal of settled standards of law and morality, but they were signed by the head of the Office of Legal Counsel (OLC), known as “the president’s law firm” as it is more closely aligned with the chief executive than the AG, head of the Department of Justice – whose duty is to the people of the United States, not the sitting President.
The U.S. DOJ has a mixed history. Its mission statement concludes that it shall “ensure fair and impartial administration of justice for all Americans.” Serving that goal well were AGs Robert H. Jackson, Robert F. Kennedy, Nicholas Katzenbach, and Ramsey Clark, among others who bravely championed desegregation and civil rights. Disserving that mission were AGs John Mitchell, Edwin Meese, and Alberto Gonzales, among others who used the law as an amoral tool of power to subvert equal justice under law.
Law exposed as a mere instrument of power loses any semblance of intrinsic principled value. As such, the rhetoric of democracy and rule of law ring hollow, and the law cannot cohere.
AG Sessions testimony cannot be allowed to stand. Fortunately, he will not have the last word. The consciousness of guilt of the current AG and President is evident in the public record, making an important part of the case against them by a prosecutor. We shall see if special counsel Mueller is up to the job and able to overcome the political obstacles on the path to justice.
William A. Cohn, professor of jurisprudence at New York University, and lecturer on law, ethics and critical thinking at the University of New York in Prague, and SUNY Empire State College, is a member of the California Bar and author of Led Astray: Legal and Moral Blowback from the Global War on Terror (Assessing the War on Terror, Routledge, 2017).