Jeff Sessions sought a criminal investigation against a liberal group for engaging in free speech

That’s not how the First Amendment works.

Attorney General nominee Jeff Sessions CREDIT: AP Photo/Carolyn Kaster, file
Attorney General nominee Jeff Sessions CREDIT: AP Photo/Carolyn Kaster, file

Sen. Jeff Sessions (R-AL), President-elect Trump’s nominee to lead the Justice Department, once sought a criminal investigation against a liberal advocacy group that discouraged churches from engaging in political activity sponsored by the conservative Christian Coalition.

In a possible sign of how he will use voting laws if he is confirmed as the next Attorney General of the United States, Sessions co-signed a letter asking then-Attorney General Janet Reno to determine whether Americans United for Separation of Church and State violated a federal law providing that “whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce” someone “for the purpose of interfering with the right of such other person to vote or to vote as he may choose” may be fined or imprisoned for up to a year.

The Justice Department considered Sessions’ allegation against Americans United and concluded that the law was not violated.

In 1996, Americans United launched a project to “educate religious leaders and other Americans about tax exemption and political activity.” This project published materials explaining the law governing political activity by churches, and argued that these churches cannot engage in certain activity spearheaded by conservative groups without endangering their tax-exempt status. It also distributed some of these materials directly to houses of worship.

A background piece published on Americans United’s website shortly after this project launched, for example, explained that “Churches and other organizations that hold a non-profit status under IRS Code 501(c)(3) may not engage in partisan politicking.” It also claimed that “aggressive Religious Right groups such as the Christian Coalition are trying to draft churches into a nationwide effort to take over the Republican Party structure and the government generally,” and that “churches that join this crusade risk losing their non-profit status if they engage in prohibited activities.”

In addition to presenting these legal arguments, Americans United’s Executive Director Barry Lynn also argued that “pastors have a moral obligation not to involve their churches in political schemes” such as a church-based project led by the Christian Coalition’s Pat Robertson.

Sen. Sessions joined with five of his colleagues, Sens. Paul Coverdell (R-GA), Jesse Helms (R-NC), Strom Thurmond (R-SC), Don Nickles (R-OK), and Sam Brownback (R-KS), to claim that these sorts of activities by Americans United may violate federal law. According to a contemporaneous report by the First Amendment Center’s Jeremy Leaming, “the senators’ seven-paragraph letter reached Reno only days after Pat Robertson, the televangelist and founder of the Christian Coalition, met with Senate Majority Leader Trent Lott, R-Miss., and Sens. Nickles and Coverdell to discuss ways to re-energize grassroots voters.”

Lynn and Americans United were a fairly persistent thorn in the side of Robertson’s Christian Coalition. In 1997, Americans United released a tape recording of a speech by Robertson, where the conservative leader compared his efforts favorably to “the Tammany Halls and Hague and the Chicago machine and the Byrd machine in Virginia” and bragged about how he would convince Republican lawmakers to fall in line. “We just tell these guys, ‘Look, we put you in power in 1994, and we want you to deliver,’” Robertson said in the recorded speech.

Less than two years later, the IRS denied the Christian Coalition’s request for tax exempt status.

In their July 2, 1999 letter seeking a criminal investigation into Americans United, Sessions and his five colleagues told Reno that “we are certain that you agree that any effort to discourage churches from participating in lawful activities and, by extension, to dissuade religious Americans from participating in the political process, is a matter of grave concern.” They added that “if it is true that Americans United or any other organization has attempted to disenfranchise religious voters by intimidating people of faith into not participating in the political process — thereby silencing their voices on moral issues, then all Americans should be outraged.”

The next February, Deputy Assistant Attorney General John C. Keeney wrote to Lynn informing him that Americans United did not need to fear prosecution. The voter intimidation laws cited by Sessions and his colleagues are intended to “reach only threats of physical or economic harm that are communicated to voters to stimulate or deter them from voting in federal elections.” They “do not reach the mere expression of opinions concerning the possible tax ramifications to organizations that engage such activities.”

A prosecution against Americans United almost certainly would have violated the First Amendment’s free speech protections as well.

If Sessions is confirmed, he will serve under a president who has threatened to “open up our libel laws” to target news outlets and to strip citizenship from certain political protesters.

In other words, Trump appears to have a very idiosyncratic view of the First Amendment — and Sessions’ unusual crusade against Americans United suggests that he may share a similar view.