By Mark Oppenheimer
In 1997, a state judge in Birmingham, Ala., dismissed charges against the manufacturer Tieco for cheating one of its corporate customers. In his order, the judge adopted the defense's position that the Alabama attorney general's office had committed "serious and wholesale prosecutorial misconduct."
Moments after being publicly shamed, the attorney general gave an impromptu interview. His central concern was not his reputation, but what he saw as unfair disparagement of prosecutors.
"Charges like 'prosecutorial misconduct' offend me," said Jeff Sessions, now a U.S. senator and the nominee for attorney general. Judges shouldn't use such language, Sessions argued, because "if prosecutors are continued to be abused by defense lawyers, it can chill their willingness to take on high-profile, complex cases."
Few of Trump's nominees would bring to their jobs a fixed ideology as poisonous as what Sessions would bring to the Department of Justice. As attorney general, Sessions would oversee federal prosecutors and, most likely, would have a say in whom the president appoints to the federal bench. From his perch he could further his conviction that "prosecutorial misconduct" is nothing more than slander.
What also sets him apart is his belief that prosecutors are at a disadvantage, indeed are something of an endangered species, overrun by the vicious defense bar.
In the Tieco case, Sessions' office was accused of sharing evidence that it had seized for its prosecution with Tieco's rival, USX, which then sued Tieco in civil court. While litigation was still ongoing, Tieco's lawyers filed an ethics complaint with the Alabama Ethics Commission. Although the commission ultimately decided that it had "insufficient facts" to proceed, Sessions' response to the affair was, once more, revealing.
"People who file these kind of complaints need to be asking some real hard questions of themselves, if they're capable of that, because it's really an unhealthy process," Sessions said. "I think it threatens and complicates the ability of good investigators to do their job."
Faced with apparent gross misconduct by a prosecutor, the defense, according to Sessions, should hold its fire.
Sessions has returned to this theme repeatedly. In 2010, as a member of the Senate Judiciary Committee, he worried during one hearing that "a lot of these powerful defendants are outgunning the prosecutors."
In our adversarial legal system, defense attorneys are supposed to do all they can for their clients. Anything less is malpractice. But Sessions doesn't see it that way. And when opposing judicial nominees, his favorite charge is that they are biased against prosecutors. His complaints are often leveled against nominees who are people of color.
Before Susan Oki Mollway, an Asian American woman, was confirmed to the federal judiciary in 1998, Sessions worried that based on her "background," including her "activities with the ACLU in Hawaii," she could be expected to have the "liberal, activist, anti-law enforcement mentality."
Frederica Massiah-Jackson would have been the first female African American federal judge in Philadelphia, but she withdrew her nomination. "I had a feeling, an intuition, that there was something unhealthy about this nominee, that there was perhaps an unstated bias against prosecutors and law enforcement," Sessions said about her.
I couldn't find a single example of Sessions stating in public that a prosecutor was too zealous, or that a defendant needed more vigorous representation. For Trump's intended attorney general, the arc of justice always bends toward the state.
Mark Oppenheimer, a contributing writer to the Los Angeles Times' opinion section, is the host of the podcast Unorthodox.