Jefferson Beauregard Sessions, a son of the segregated South who was named after leaders of the Confederacy, faces a tough new test of his commitment to protecting civil rights as he oversees the Justice Department’s investigation of the deadly violence at a rally of white nationalists in Virginia.
Sessions’ political career has been dogged by questions about race, including during his confirmation hearings this year. In his six months as attorney general, he has worked quickly to change how the department enforces civil rights law, particularly in the areas of police reform and voting rights.
Yet Sessions was also quick to forcefully condemn the car attack at the neo-Nazi rally in support of a Confederate statue in Charlottesville. His response stood in contrast to that of President Donald Trump, who drew equivalence between the white nationalists and those protesting their beliefs. Sessions denounced racism and bigotry and called the driver’s actions an “evil” act of domestic terrorism worthy of a federal civil rights investigation.
Observers say the real test will be in what Sessions does next, given the legal limitations he faces.
Federal hate crimes law may not cover the killing even if it was motivated by hate. Federal criminal law has no specific, catchall charge for acts of domestic terrorism. Sessions may decide that the murder charges already leveled against James Alex Fields Jr. in state court are sufficient for justice.
“It’s my hope that with the degree of national and international scrutiny, that this department will do the right thing,” said Kristen Clarke, a former hate crimes prosecutor and president of the liberal Lawyers’ Committee for Civil Rights Under Law. “This is a case that the world is watching.”
For Sessions, a genial 70-year-old with an Alabama drawl and an uncompromising conservative ideology, leading the Justice Department is the capstone of a decadeslong political career. He has faced questions about his treatment of minorities along the way.
As a federal prosecutor in the 1980s, Sessions charged black community activists, who were swiftly acquitted, in a voter fraud case that, along with allegations of racially charged comments, cost him a federal judgeship. As a Republican senator more than 20 years later, he opposed expanding the federal hate crimes statute to protect people based on their sexual orientation and gender identity.
Clarke said Sessions’ comments in the days after the Charlottesville attack made her cautiously optimistic, but his history has her concerned.
Sessions promised to “advance the investigation toward the most serious charges that can be brought, because this is an unequivocally unacceptable and evil attack that cannot be accepted in America.”
But he also acknowledged that deciding whether to bring federal charges won’t be quick or easy.
Hate crime cases are often challenging because the government must prove that a suspect was primarily motivated by hatred of the victims’ race or religion, as opposed to their political views. The Charlottesville case could be tricky. The victim, 32-year-old Heather Heyer, was white. That means investigators will have to prove Fields was targeting minorities when he plowed into the crowd, not just anti-racism protesters.
Prosecutors can argue that a suspect committed a crime not because of the race of the victim but because of the race of the people on whose behalf she was protesting, said William Yeomans, an American University law fellow and former high-ranking official in the Justice Department’s civil rights division. But that interpretation of the hate crimes law has rarely if ever been used, he said.
“It’s a challenge, but I don’t think it’s entirely impossible or shouldn’t be explored,” Yeomans said. “The real measure of (Sessions’) commitment and his success in this case will be the thoroughness of the investigation” even if the case remains in state court.
Fields already faces a long sentence if he is convicted in Virginia, so a federal charge could be seen as largely symbolic. Former Attorney General Loretta Lynch, for example, said she brought hate crimes charges in a massacre at a black church in South Carolina because that state has no hate-crimes law, and federal charges were needed to adequately address a motive rooted in racial hate.
The latest case is being investigated by career prosecutors and FBI agents, who will make recommendations to Sessions. The FBI would not describe the scope of the resources it has devoted to the investigation, but there are signs it is a priority. Agents were looking for clues in Fields’ hometown in Ohio the day of the attack.
Sessions has said prosecuting hate crimes is a priority of his civil rights division. Yet he is reshaping the unit in other ways that make advocates nervous.
Under Sessions, the department has expressed support for a strict Texas voter ID that a federal judge last month found discriminates against minorities; backed off court-enforceable improvement plans for troubled police agencies; and told local school districts they no longer must allow transgender students to use the bathrooms of their choice.
The department declined to comment further on Sessions’ thinking about the Charlottesville case. Sessions has not said whether he personally favors the removal of Confederate monuments such as the one memorializing Robert E. Lee at the center of the Charlottesville violence. He has said only that cities should make that choice free from violence. His supporters say neither emotions nor his past will guide him in the investigation.
“He will look at it from a very legal perspective. Was a crime committed, and what are we going to do to get a conviction?” said Armand DeKeyser, who worked closely with Sessions and became his chief of staff in the Senate. “He won’t be governed by emotion.”