THE BLOG
11/24/2016 11:42 am ET Updated Nov 25, 2017

There Should Be A Litmus Test Before Confirming Attorney General Nominee Jeff Sessions

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Limitless executive power has wounded the Constitution and the rule of law. The wounds may soon compound.

In a November 20, 2016 interview on CBS' "Face the Nation," Vice President-elect Mike Pence declared that waterboarding, i.e., torture, assassinating family members of suspected terrorists, or any other tactic might be employed by President-elect Donald Trump to defeat "radical Islamic terrorism." He refused to rule out any barbarity.

During his presidential campaign, Mr. Trump applauded "torture" and vowed to "bring back a hell of a lot worse than waterboarding" to oppose international terrorists. He asserted that he would kill their family members. When confronted with the illegality of both tactics by Fox News' Bret Bair, Mr. Trump changed the subject.

The President-elect has seemingly embraced President Richard Nixon's extra-constitutional conviction that, "[W]hen the President does it, that means it is not illegal."

Mr. Nixon forgot that King George III lost to General George Washington in the Revolutionary War, and that the President is not an elected King. He paid the price with Articles of Impeachment voted by the House Judiciary Committee and forced resignation in the face of certain conviction for high crimes and misdemeanors by the Senate.

The foremost role of the Attorney General (akin to Horatius at the Bridge) is to protect the Constitution from presidential vandalizing.

President-elect Trump has nominated Alabama Senator Jeff Sessions, which is subject to Senate confirmation under the Constitution's Appointments Clause.

The Senate Judiciary Committee and the Senate are saddled with the solemn responsibility of insuring that the nominee is qualified to prevent President-elect Trump from vandalizing the Constitution. Meticulous and fair public hearings on Mr. Sessions' nomination are imperative.

A multi-pronged litmus test should be applied.

The nominee should be required to affirm that the Declare War Clause of Article I, section 8, clause 11 prohibits our nine ongoing presidential wars in Libya, Somalia, Yemen, Syria, Iraq, Afghanistan, and Pakistan, and against Al Qaeda and ISIS everywhere in the world. The Declare War Clause meaning--like the meaning of the word "is"--is crystal clear. James Madison, father of the Constitution and Bill of Rights, Member of the Virginia Ratification Convention, chief author of The Federalist Papers, Member of Congress, twice Secretary of State, and twice President of the United States, is the definitive expositor of the Constitution. He elaborated in a letter to Thomas Jefferson the universal understanding of the Declare War Clause and its cornerstone importance:

"The constitution supposes, what the History of all governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has, accordingly, with studied care, vested the question of war in the Legislature. But the doctrines lately advanced strike at the root of all these provisions, and will deposit the peace of the Country in that Department which the Constitution distrusts as most ready, without cause, to renounce it."

The nominee should also be required to affirm that constitutional due process categorically prohibits the President from playing prosecutor, judge, jury, and executioner to kill any American citizen he decrees is an imminent danger to national security or otherwise based on secret, unsubstantiated information. That God-like power is vastly more tyrannical than anything laid at the feet of King George III in the Declaration of Independence.

The nominee should be required to affirm that the President may not conduct electronic surveillance against American citizens except as authorized by statute--a limitation imposed by the Foreign Intelligence Surveillance Act, 50 U.S.C. 1809 (a) (1). That means Executive Order 12333 cannot justify surveillance of American citizens for foreign intelligence purposes.

The nominee should be required to affirm that the President may not circumvent the Treaty Clause of the Constitution with executive agreements like the Joint Comprehensive Plan of Action intended to restrain Iran's nuclear ambitions. He should be required to affirm that an agreement or contract between two sovereigns constitutes a treaty requiring Senate ratification by a two-thirds majority. Accordingly, he should be required to affirm that the JCPOA is of no force or effect until and unless ratified by the Senate as a treaty.

The nominee should be required to affirm that torture under any circumstances violates the Eighth Amendment, federal criminal law, and the Convention Against Torture. He should be further required to affirm that waterboarding or worse constitutes torture, and that he would prosecute those crimes.

The nominee should be required to affirm that the intentional killing of family members of suspected terrorists constitutes a prosecutable war crime under the War Crimes Act.

The nominee should be required to affirm that the President is constitutionally forbidden to circumvent the congressional power of the purse by soliciting funds from foreign governments to fight wars that Congress has not declared or funded as President George H.W. Bush did in conducting the 1991 Kuwait War.

The nominee should be required to affirm that any presidential violation of the these constitutional or statutory limits on executive power would constitute an impeachable high crime and misdemeanor warranting conviction and removal from office under Article II, section 4.

This multi-pronged litmus test asks only that the Attorney General honor his required oath to "support and defend the Constitution of the United States...without any mental reservation or purpose of evasion...."

The Senate should never forget the warning of Supreme Court Justice Louis D. Brandeis in Olmstead v. United States (1928): "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

The constitutional litmus test I have proposed for the Senate regarding Mr. Sessions' nomination would admittedly constitute a double standard. For several decades, both Democratic and Republican presidents have routinely flouted constitutional limits on executive power with the approval or tacit support of Democratic and Republican Attorneys General without provoking congressional resistance.

But presidential lawlessness does not become lawful by repetition. We have fallen into a constitutional abyss through a combination of executive boldness and congressional cravenness over the course of 70 years. If we refuse to climb out to avoid a double standard our ruination is inescapable.

In sum, it is not that we love Mr. Sessions less, but that we love the Constitution more that he should be subjected to the proposed multi-pronged litmus test for confirmation.