Can Sessions actually run for his old Senate seat?

Posted at 8:58 PM, Nov 15, 2017
and last updated 2017-11-15 20:58:55-05

A growing group of Republicans want Attorney General Jeff Sessions to be the party's choice in the Alabama Senate race, but ethics experts say Sessions either would have to have to leave the Department of Justice or continually disavow campaigns to put him in the seat if he wants to run for the office and avoid legal trouble.

This week Senate Majority Leader Mitch McConnell of Kentucky and Senate Majority Whip John Cornyn of Texas both said they would support Sessions as a write-in candidate over Republican candidate Roy Moore, who has been accused of pursuing sexual relationships with teenagers when he was in his 30s.

Moore denies the allegations, and says he has no plans leave the race. And Sessions has not indicated that he's planning to run for his old seat.

But ethics experts say that even if Sessions does not himself campaign to be a write-in candidate in the race, he could have an "affirmative duty" to disavow campaigns to put him in the Senate while he's still the attorney general. If he remains silent, he could be in violation of the Hatch Act, a 1939 law restricting the ability of most federal employees to engage in political campaign activities.

Walter Shaub, a former director of the US Office of Government Ethics who's now at the nonprofit Campaign Legal Center, told CNN that the federal Office of Special Counsel has issued an advisory opinion on write-in candidates, which specifies:

"(S)uch a candidacy is permissible only if spontaneous and accomplished without an employee's knowledge. You acknowledge that you have heard rumors of a write-in effort to elect you to the school board. It would be a violation of the Act if you encouraged this effort or remained silent. The Act imposes on you an affirmative duty to disavow this effort through public announcements and other appropriate means." 

It remains to be seen whether the OSC considers the comments by McConnell and Cornyn as imposing an "affirmative duty."

"There's a question as to whether it's a write-in campaign or a stray comment from one guy," Shaub said following McConnell's comments. "If McConnell keeps talking about it, he's going to create an affirmative duty."

Larry Noble, a senior director at the Campaign Legal Center who's a CNN contributor, said Republicans such as McConnell are "putting (Sessions) in a very difficult position" by even suggesting he be a write-in candidate.

"We are close to the line of his having to disavow," Noble added.

For Sessions to be eligible as a write-in candidate, Noble said, he would have to "affirmatively disavow" any campaign or resign from office to avoid violating the Hatch Act.

Sessions would likely be asked about his support for the write-in candidacy frequently until the December 12 election. Questions could also be raised about whether he was having private conversations about the effort with the state party and the Republican National Committee, which also would violate the Hatch Act.

In response to a request for comment, Sarah Isgur Flores, director of public affairs for the Department of Justice, said, "Our ethics officials will need to evaluate precisely what has been said by others and then review what, if any, affirmative obligations we may have."

Samuel Bagenstos, a University of Michigan Law School professor who specializes in constitutional litigation, noted that a few previous attorneys general -- including Dick Thornburgh and Robert Kennedy -- have campaigned for Senate seats, but neither were floated as write-in candidates.

"It's extremely suboptimal for an attorney general, who is supposed to have some insulation from electoral politics, to be actively running for a political office," Bagenstos said, adding, "And of course there would be lots of possible recusal questions."

Aside from ethical considerations, running as a write-in candidate would be a long shot even if Sessions resigned.

Few candidates have won Senate seats via write-in campaigns. Sen. Lisa Murkowski, R-Alaska, won her seat that way in 2010, but prior to her election the last person to do it was Strom Thurmond in 1954.

However unlikely, a Sessions victory would serve two purposes for the GOP: The party would retain the seat, and Sessions would leave the DOJ after months of public criticism by President Donald Trump over his decision to recuse himself from the Russia investigation and not to prosecute Trump's political enemies.