Today Jeff Sessions claims credit for prosecuting a lynching by the Ku Klux Klan as proof that he is not a racist, but an attorney working for him claimed 30 years ago his boss wanted to drop the case.
Confirmation hearings will begin Tuesday for Donald Trump’s attorney general nominee, and they’re sure to include questions that were raised when he was nominated for a federal judgeship in 1986. His confirmation was derailed largely by the testimony of Thomas Figures, an assistant U.S. attorney in Alabama when Sessions was U.S. attorney.
Figures's claims that Sessions made racist remarks have resurfaced recently, but overlooked is a more serious allegation that Sessions sought to go soft on investigating the lynching of a black man by two Klansmen.
Figures testified to several examples of his former boss’s alleged racial insensitivity before the Senate Judiciary Committee, saying Sessions had once told him that “he believed the NAACP, the SCLC, Operation PUSH, and the National Council of Churches were all un-American organizations teaching anti-American values.”
On one occasion, when Figures upbraided Sessions’s secretary over what he felt was an inappropriate personal comment she made to him, he said Sessions had summoned him to his office and admonished him to “be careful what you say to white folks.” Figures was black.
Sessions and his supporters, then as now, defend his civil rights record based on several cases to which Figures was also assigned, including the conviction of Henry Hays for the 1981 murder by lynching of Michael Donald.
“When I became a U.S. Attorney for the Southern District of Alabama, I, along with Assistant U.S. Attorney Thomas Figures and the Civil Rights Division of the Department of Justice, worked to solve the [Donald] murder,” Sessions wrote in his response to the Judiciary Committee questionnaire for his AG nomination. “Because the federal government did not have an enforceable death penalty at the time, I insisted that Hays be prosecuted by the local district attorney.”
Sessions was questioned about the prosecution in 1986, days before Figures spoke to the committee, and told Senator Howell Heflin that he did not obstruct the investigation.
Figures said Sessions’s answer was “literally correct,” however, “in the early stages of the case, Mr. Sessions did attempt to persuade me to discontinue pursuit of the case,” calling it a waste of time and saying that “if the perpetrators were found, I would not be assigned to the case,” Figures testified.
“All of these statements were well calculated to induce me to drop the case,” Figures said, “on the other hand, none of them amounted to a direct order to drop the case.”
Donald was selected at random for kidnapping at gunpoint by Hays and James Llewellyn “Tiger” Knowles. The two Klansmen had just left a cross burning on the Mobile County courthouse lawn, where inside a mistrial had occurred earlier in the day in a case of a black man accused of killing a white police officer.
After forcing him into their car, they drove Donald to the woods in another county, beat him with a tree limb, slashed his throat, and strangled him to death with a rope, then drove him back to Mobile and hung him by the neck in a camphor tree across the street from Hays’s apartment.
The Mobile police chief said early in the investigation he thought the Klansmen were involved. Three men arrested by police, who they described as “junkie types,” were released when it was revealed that the witness who had fingered them had lied (he was later convicted of perjury and sentenced to life in prison as a habitual offender).
Donald’s family picketed the Mobile County courthouse “to make sure nobody forgets Michael,” reported the Mobile Press-Register. “We believe the police didn’t work hard enough and didn’t investigate long enough before they turned those people loose,” said Mary A. Jackson, Donald’s eldest sister.
The FBI investigated at the request of the district attorney but turned up no suspects. Encouraged by his brother, the attorney for Donald’s mother, Figures pushed for a second FBI investigation, and eventually a grand jury which returned indictments against Knowles and Hays, who were arrested in June 1983.
Only after this did Sessions get on board with prosecution, Figures told the Senate.
A Trump transition official told The Daily Beast that a local judge and investigator, both Democrats, defended Sessions’s role in the prosecution.
“[I] can assure you the State’s conviction of Henry Hays would not have been possible without Jeff Sessions’s assistance,” Judge Ferrill D. McRae testified at the 1986 hearing.
McRae, however, was not the presiding judge in the trial. Judge Braxton Kittrell presided but did not comment on Sessions’s role in the prosecution when he testified before the Senate in 1986.
“Without his [Sessions’s] cooperation, the State could not have proceeded against Henry Hays on a capital murder charge,” Mobile district attorney’s investigator Bobby Eddy told the Senate.
Eddy’s involvement in the Donald prosecution began well after the time period in which Figures alleged Sessions discouraged his investigative efforts.
Knowles and Hays were both convicted for the murder, with Knowles acting as the prosecution’s chief witness against his fellow Klansman. In exchange for his cooperation and pleading guilty to violating Donald’s civil rights, Knowles was sentenced in federal court to life imprisonment. He testified that he and Hays had lynched Donald in order to “show Klan strength in Alabama.”
Hays was tried in Alabama state court because prosecutors wanted him to face the death penalty. He was convicted, sentenced to death, and executed in Alabama’s infamous Yellow Mama electric chair in 1997, the first white man executed for killing a black man in Alabama since 1913, which Sessions noted in his attorney general questionnaire.
The Southern Poverty Law Center, SPLC, filed and won a lawsuit against the United Klans of America on behalf of Donald’s mother, resulting in a $7 million verdict that hobbled the Klan. The organization was forced to turn its Tuscaloosa headquarters over to Donald’s mother to pay a fraction of the damages awarded.
During the Donald case, Sessions allegedly told Figures and others he liked the Klan until he found out they smoked marijuana.
Barry Kowalski, an attorney in the Justice Department’s Civil Rights Division, told the committee that he mentioned to Sessions that one difficulty investigators were having getting a clear account of events in the Donald case was that “some of the Klansmen had been smoking marijuana.”
Session replied “something to the effect of, ‘I didn’t know that Klansmen used marijuana now,” Kowalski said, and that “he used to have respect for that organization but now he no longer does, knowing they use drugs.”
Kowalski dismissed the comment as “operating room humor” induced by the brutal circumstances of the case.
Figures didn’t take it lightly though, telling the committee that “whatever Mr. Sessions’ view of the Klan may be today, the remark that he made during the Donald case, indicating that he only objected the the Klan because of drug use by its members, was not made in a joking manner.”
“Mr. Kowalski, on the other hand, apparently did not take this remark as seriously as I did,” Figures added.
A transition official defended Sessions in a statement to The Daily Beast.
“Any allegation that Jeff Sessions actually liked the KKK was contradicted by Sessions sending one Klansman to federal prison for life and the other to Alabama’s electric chair,” the official said.
On two other occasions, Sessions approached Figures with civil rights cases suggesting he “recommend to Washington that the investigation be closed and that the government decline to pursue the case,” Figures said.
“When I indicated I favored further investigation,” he continued, “Mr. Sessions took back the file; each case was ultimately forwarded to Washington with the recommendation of another assistant urging that the investigation be closed.”
Senator Paul Simon asked Figures if it would “be fair to characterize Mr. Sessions as an able, decent person but simply not sensitive in the area of race?”
“Senator Simon,” Figures began, “I believe that the statements and actions of Mr. Sessions regarding race, and regarding civil rights, impact tremendously on whether he is decent. And for that reason I could not conclude, based on those statements and those actions, that he has the sufficient perspective and integrity to serve as a federal judge.”
Sessions was denied confirmation thanks to the allegations of racism and abuse of power, making him the first Reagan appointee not approved by the Senate, and only the second nominee to the district court bench rejected in 49 years.
In 1992 a federal grand jury charged Figures for allegedly bribing a drug dealer not to testify against his client, a prosecution many viewed as retaliatory.
“I don’t think it is incidental that Tom Figures testified against Jeff Sessions’s nomination to the bench and is now being indicted just 10 weeks before the Republican Administration leaves office,” J. L. Chestnut, a lawyer and early leader in the civil rights movement who was then head of Alabama’s mostly black New South Coalition, told The New York Times.
When asked about the suspicions of retaliation by the Times, Sessions said, “I’m sorry people see it that way. It is a matter I would like to see behind me, and I’m sorry to see it come up again.” He claimed he had recused himself from Figures’s case to prevent any conflict.
The case was handled by special prosecutors from the Department of Justice, and built mostly around the testimony of one informant, John Christopher, who was trying to get his life sentence reduced. The lead Drug Enforcement Agency investigator, another key prosecution witness, admitted on the stand to heavily coaching Christopher in preparation for his testimony.
Figures, who called the prosecution “vindictive and discriminatory,” was found innocent of the single charge against him in March of 1993.
“Vengeance is mine, saith the Lord,” Figures said on the courthouse steps, according to the Mobile Press-Register. “I have no choice but to forgive.”
Sessions cites his work alongside Figures as a favorable mark on his record. Senators on the Judiciary Committee will have only Figures’s 1986 testimony to go on when hearings begin next week. He died in January 2015, then serving as a municipal judge in Mobile.