Once again a good and decent man is being maligned. Sen. Jeff Sessions, nominated by President-elect Donald Trump to be U.S. attorney general, is that man. Democrats and the Left, just as they did 30 years ago when Sessions was nominated for a federal judgeship, are trying to derail his nomination — with false accusations.
In 1986, the Democrats trotted out J. Gerald Hebert, a U.S. Justice Department Civil Rights Division lawyer. Hebert made headlines when he testified under oath during the public Senate hearing. The major accusation against Sessions, who was the U.S. attorney for the Southern District of Alabama, was that he blocked the filing of a civil rights voting case that government lawyers wanted to prosecute.
Hebert’s testimony was simple and straightforward: He claimed he had “personal knowledge” of the case and detailed how it was thwarted. “[W]e found out,” he said, “that, in fact, Mr. Sessions had gotten in touch with the [FBI] agents and had called off the investigation.”
Hebert even provided Sessions’ rationale: “[H]e instructed the FBI not to investigate because he thought it was a bad investigation and did not agree with it.”
Joe Biden, a U.S. senator from Delaware at the time, outlined the process for civil rights cases: The FBI investigates pursuant to a written request from the assistant attorney general for civil rights, who works in Main Justice in Washington. Biden stressed that U.S. attorneys do not have unilateral authority to reject these cases after the assistant attorney general has recommended they go forward. Rather, any problem is to be discussed and worked out. Hebert picked up on the issue. It was, he claimed, the only time he could recall that a U.S. attorney had cut off such a prosecution.
Ever the honest broker, Hebert swore that he was only “telling the truth” because it was his “duty.” Except he wasn’t.
Three days later, Hebert had to recant. When confronted with documentary evidence of his false statement, he was compelled to submit a declaration in which he admitted that the “documents show that [Sessions] was not the United States Attorney involved in blocking the voting investigation … in the Southern District of Alabama.” Rather, he acknowledged, “it was his predecessor [a Democratic appointee].” By falsely accusing Sessions, Hebert had to misremember who the U.S. attorney was, the county where the incident occurred and the year.
Hebert apologized “for any inconvenience caused” by his testimony, but by then the damage was done. Headlines had been blaring for days that Sessions was a racist.
Hebert’s distortion of the truth has not been limited to Sessions. He has been severely criticized by the judicial system for making exaggerated claims of racism. In United States v. Jones, taxpayers had to forfeit more than $86,000 for a case he brought in Alabama, which the appellate court described as “carelessly instigated.” Because of a history of redrawing voter districts, Dallas County made “undisputed errors” in its voter lists. More than 50 white voters who did not reside in a newly created district were permitted to vote there. A black candidate running for county commissioner lost. Hebert charged three county officials with intentional racial discrimination under the Voting Rights Act, and the 14th and 15th Amendments. The district court ruled for the defendants, finding that “unwitting errors and a mistake cannot be intentionally discriminatory,” and awarded attorneys’ fees and expenses. The government appealed only the fee award.
Describing the case as “troubling,” the 11th Circuit upheld the award and rebuked the government for bringing the case on “unfounded accusations,” because evidence presented at the trial showed that the challenged voting “resulted from mistakes in a map that had been used by election officials for many years. A properly conducted investigation would have quickly revealed that there was no basis for the claim” of intentional discrimination. In an unusual lament, the court wrote, “Unfortunately, we cannot restore the reputation of the persons wrongfully branded by the United States as public officials who deliberately deprived their fellow citizens of their voting rights.”
Now, Hebert is at it again. In a Nov. 22 op-ed in the Washington Post, he wrote that he was threatened during the 1986 hearings by Alabama Sen. Jeremiah Denton and an unnamed congressional staffer. “[They] took me into a back room,” he wrote. “The testimony on Sessions was going south, and they told me to get in there and straighten it out — or my job would be in jeopardy.” Hebert professed to be undeterred because the senator and the staffer could not affect his job and so he testified. Albeit falsely.
And yet again, what Hebert claims is disputed. Denton is deceased, but his unnamed aide is quite alive. Joel Lisker has submitted an affidavit to the U.S. Senate Judiciary Committee stating unequivocally that the threat did not occur. Interestingly, Hebert never made the “threat” accusation while Denton was alive, and he never reported the threat to the Department of Justice. In fact, at the Senate hearing, Hebert testified to just the opposite: “[N]obody…called me and said, Hebert, you better come up here right away because you have got to straighten this out.”
During the same hearing, Denton asked Hebert directly and under oath, “Do you think Mr. Sessions is a racist?”
“No, I do not,” was the reply.
Thirty years later, without any personal contact with Sessions since the hearings, Hebert, in a Dec. 18 USA Today interview, now says of Sessions: “He’s a racist.”
On Jan. 10, Sessions is scheduled to appear before the Senate Judiciary Committee to present his qualifications to replace Loretta Lynch. Confirmation hearings should be a forum for discussing issues. They should not provide a platform for a discredited witness to make more false statements about a good and decent man.
Victoria Toensing is a former Chief Counsel for the Senate Select Committee on Intelligence and former Deputy Assistant Attorney General, U.S. Department of Justice, where among other assignments she created the anti-terrorism section. She is a founding partner of diGenova & Toensing.