OPINION: Sessions Merits Our Gratitude; Whitaker Merits A Chance

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John Malcolm Contributor
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Jeff Sessions went out the same way he came in, and the same way he conducted himself during his 21 months as U.S. attorney general: quietly, humbly, discreetly, and with great dignity.

He had a tempestuous relationship with President Trump because of his decision to recuse himself from overseeing the Robert Mueller investigation, and he didn’t always see eye-to-eye with the president on issues such as criminal justice reform. Yet Sessions did much to advance the Trump agenda.

During his tenure, Sessions renewed the Justice Department’s emphasis on combatting violent crime, the drug epidemic, and illegal immigration. He devoted significant resources to each of these priorities and defended the administration’s legal positions in court on enforcing the so-called Travel Ban, ending the DACA program, and threatening to cut off discretionary funding to “sanctuary” jurisdictions.

By pursuing a more cooperative and less adversarial relationship than the Obama Justice Department, Sessions earned the gratitude and respect of state and local law enforcement officials. He stopped the highly controversial (and likely unconstitutional) practice of pressuring entities that are under investigation to enter into civil settlements and non-prosecution agreements that include significant payments to non-victim third parties (often political activists aligned with liberal causes) rather than into the U.S. Treasury.

He also pursued other administration priorities, such as defending voter-identification laws and religious liberty, as well as challenging campus speech codes and college admissions practices that use overt racial preferences.

The reins have now been turned over to Acting Attorney General Matthew Whitaker, but not without some controversy. Whitaker, a former U.S. attorney for the Southern District of Iowa during the Bush administration, had been serving as Sessions’ chief of staff for just over a year prior to his appointment under the Federal Vacancies Reform Act of 1998.

Some argue that Whitaker’s appointment as acting AG violates the Appointments Clause of the Constitution because his previous position as chief of staff was not subject to Senate confirmation. While certainly an interesting legal question, it is unclear who will have “standing” to challenge the legality of this appointment in court, at least in the near term.

The greater chorus of opposition, however, comes from those who object to Whitaker overseeing the Mueller investigation because of critical comments that he made as a private citizen and political pundit prior to rejoining the Justice Department. These concerns strike me as being overblown or, at the very least, premature.

As a private citizen, of course, Whitaker would not have been privy to any of the evidence gathered by Special Counsel Mueller during the course of his investigation. I see no reason to believe that, as acting attorney general, Whitaker would not be able to review and assess that evidence in an objective manner and to allow that investigation, which appears to be nearing its conclusion, to run its course.

Moreover, any Trump nominee to the position of attorney general would likely face the same skepticism, questions and concerns. Whitaker will be doing the country a real service by “clearing the decks” of this thorny and contentious issue, so that the next attorney general can focus his or her attention on the many other priorities that the Justice Department deals with on a day-to-day basis.

The Justice Department website states that its mission is the following: “To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.”

As a former prosecutor, I can tell you that this weighty responsibility relies on the dedication and integrity of the attorneys and investigators inside the Justice Department who seek to engender respect for the rule of law, strengthen our communities, and enforce the laws in a manner befitting the name of the department they serve. This requires steady and able leadership at the top.

We should all thank Jeff Sessions for his service — and wish Matthew Whitaker and the next attorney general the best of luck.

John G. Malcolm is The Heritage Foundation’s Gilbertson senior legal fellow and director of the think tank’s Meese Center for Legal and Judicial Studies.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.