Missing: The 'Frank' in Sen. Al Franken's Anti-Sessions Rant

Shame on Sen. Al Franken.  In a rambling diatribe during a Senate Judiciary Committee hearing last week, the Senator attempted to cast aspersions on Attorney General nominee Sen. Jeff Sessions by relying on recent claims of a discredited former U.S. Justice Department civil rights lawyer, Gerald Hebert, who 30 years ago had to recant false testimony about Sessions.  

Franken displayed pique regarding the questionnaire Sessions submitted for the Committee’s hearings.  The form asked for the “ten most significant litigated matters” personally handled by Sessions “whether or not” he was the attorney of record. Of the ten, Sessions listed four civil rights cases.

He subsequently submitted a supplement, explaining his role for those cases “like most U.S. Attorneys … with non-criminal civil rights cases, was to provide support” for the civil rights lawyers.  He described support as having “reviewed, supported and co-signed complaints, motions, and other pleadings” and providing “assistance and guidance” with an “open door policy.”  

Franken’s complaint was that Sessions “misrepresented” his roles because he only provided “support” for the four cases.  He relied on a January 3, 2017 Washington Post op-ed by Hebert, claiming Sessions “had no substantive involvement” in the cases, except signing documents.  Franken, a comedian prior to his Senate gig, obviously has no inkling how the legal system or Department of Justice works.

Generally, U.S. Attorneys do not try non-criminal Civil Rights cases.  Because litigation in this area requires special expertise, the Justice Department Civil Rights division has trained legal teams, which investigate, draft indictments, and try the cases.  But signing pleadings and complaints is no trifling act.

A lawyer’s signature holds counsel responsible for every fact and argument in that document. I have never signed a court document without knowing all the facts and reviewing cited case law.  Franken mistakenly equates the thought and responsibility behind a lawyer’s signature on a legal document with signing a fundraising letter.

Significantly, Hebert has a history of misrepresenting facts, the sin Franken casts at Sessions.  

Thirty years ago Hebert falsely testified against Sessions when he was rejected for a federal judgeship based on trumped up charges of racial insensitivity. Hebert testified he had “personal knowledge” of a civil rights case that Sessions had closed down as U.S. Attorney, even remembering specifics about the rationale.  

Except it was Sessions’ Democratic predecessor who had nixed the case.  Franken excused the memory lapse because Hebert was called to testify on “very short notice.”  

But Franken omitted the fact that Hebert had provided this false accusation to the American Bar Association (ABA) weeks before, which was the reason the Democrats called him to testify.  Hebert could have checked on his accusation before talking to the ABA, let alone testifying publicly under oath.  

Franken characterized Hebert’s recantation as voluntary. No. Hebert was confronted by Justice Department officials with the relevant documents and had to clear the record or he would have left false testimony on the record.

In 1997, the 11th Circuit fined taxpayers over $86,000 because Hebert brought a case, according to the Court, on “unfounded accusations” and “wrongfully branded” the defendants of civil rights violations.  

In November 2016, Hebert claimed in another Washington Post op-ed that Sen. Jeremiah Denton and an unnamed staffer had threatened him to help Sessions when he testified in 1986. Denton is dead, but his staffer, former FBI agent Joel Lisker, submitted an affidavit to the Senate Judiciary committee that the accusation was false.  

Franken touted Hebert’s op-ed alleging Sessions’ non-involvement in the civil rights cases.   Yet, in 1986, Hebert testified: “I have needed Mr. Sessions’ help in (civil rights) cases and he has provided that help every step of the way.”   

“(H)e would oftentimes take time out of a very busy schedule to spend time talking with me about civil rights cases. … We have had considerable difficulty with several U.S. attorneys in cases we have wanted to bring.  We have not experienced that difficulty in the cases I have handled with Mr. Sessions.  In fact, quite the contrary.”   When asked whether he had “ever experienced difficulty in cooperation with Mr. Sessions’ office,” Hebert replied under oath: “No, no.”

Why would Hebert in 2017 contradict his 1986 sworn testimony?  Perhaps his executive position with the Campaign Legal Center, funded by George Soros money, is a factor. Why would Franken use a discredited lawyer’s inconsistent statements to berate a colleague?  

As Franken admitted in committee:  “Senator Sessions and I have very different views about most of the issues that come before this committee...”  

Such differences should be the debate, not a rationale to malign 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.