‘Victory Or Death’: The Conservative Legal ‘Warrior’ Defending Jeff Sessions

Ultra-conservative super-attorney Chuck Cooper likes to talk about his ability to maintain amicable relationships in even the most polarizing circumstances. When he and Ted Olson, a former colleague of his from the Reagan Justice Department, found each other on opposing sides of the high-profile Proposition 8 same-sex marriage case, they hugged before trial every day.

A December 2016 breakfast with then-Sen. Jeff Sessions (R-AL) was no different. Cooper, a top campaign advisor to Sen. Ted Cruz (R-TX), had watched Sessions, a fellow Alabamian and longtime friend, endorse then-candidate Donald Trump in what would turn into an extremely bitter primary.

“We went to our separate corners during the campaign,” Cooper recounted to TPM in an interview last month.

But when Sessions, who Trump had picked for attorney general, reached out to Cooper for help with the confirmation process, they quickly reconnected. Dining at Bistro Bis, a restaurant attached to the tony George Hotel near the Capitol, Sessions and Cooper discussed not just Sessions’ nomination but the shape his Justice Department should take under Trump and who should fill its leadership ranks.

Since then, Cooper has been one of Sessions’ most important allies, with him at every step of his tumultuous tenure. He prepared Sessions for his brutal confirmation hearing and, during the transition, the two even contemplated Cooper joining Sessions at the Department as his solicitor general, the only government job for which Cooper would consider leaving his highly successful private practice. By that June, Sessions retained Cooper as his private attorney for the various Russia probes, and Cooper was at Sessions’ side when special counsel Robert Mueller’s team interviewed the attorney general in January.

I am representing him in connection with anything that is a threat,” Cooper said of Sessions.

Cooper and the cufflinks with the symbol his law firm firm’s motto, “victory or death.”

For an attorney who likes to call himself the “happiest lawyer in private practice,” Cooper faces a precarious task. Not only have Democrats targeted Sessions, accusing him of obscuring Russian contacts during the campaign, but Sessions is often now the subject of unprecedented ire from the President who appointed him over his decision to recuse himself from the federal Russia investigation.

Yet both Cooper’s supporters and his critics agree that he’s a perfect fit for the job. The epitome of a Washington insider, Cooper has spent the last two decades leading a boutique D.C. law firm with the motto “victory or death.” Before that, he was a top official in the Reagan Justice Department, where he navigated thorny and at-times controversial questions about the separation of powers.

“Jeff is incredibly fortunate to have a lawyer as talented and skilled as Chuck Cooper, along with a lawyer that has careful and sound and sober judgement,” Cruz — who, early in his career, worked at Cooper’s law firm — told TPM.

“I was interested in helping my old friend”

While they both grew up in Alabama, Cooper and Sessions did not meet until the 1980s, when they both worked for the Reagan administration. They have remained friends since. Cooper contributed financially to Sessions’ political ambitions, and over the years he has served as a sounding board for Sessions, as they share a deeply conservative ideology.

But the two found themselves on opposite sides of the 2016 Republican primary.

“I was pleading with [Sessions] to support Ted [Cruz] and not endorse Trump, and I failed to persuade him, unfortunately,” Cooper told TPM. He unsuccessfully lobbied Sessions over a few phone calls and texts not long after Trump’s August 2015 rally in Alabama.

While Sessions helped lead a crusade with Cruz to defeat the 2013 bipartisan immigration bill, he also found himself drawn to the New York real estate mogul-turned-reality TV star. By Cooper’s account, Sessions and then-candidate Trump were more “simpatico” on trade, and the presence of a former Sessions aide, Stephen Miller, on Trump’s campaign brought the Alabama senator even closer into the fold.

Sessions’ February 2016 endorsement of Trump – his first from a sitting senator — was a major achievement for Trump’s campaign.

“I didn’t realize that it was a losing cause from the beginning,” Cooper said, referring to his efforts to get Sessions to endorse Cruz instead.

What was a losing cause for Cooper was a winning bet for Sessions, whose early support of Trump secured him an attorney general appointment — a previously unthinkable ascent for the 71-year-old hard-right conservative, 30 years after the Senate rejected his nomination to be a federal judge.

Despite an ugly intra-party fight between their respective candidates, Cooper and Sessions maintained  “friendly adversarial contact” during the GOP primary, though Cooper admitted that “it wasn’t easy.”

“Trump of course was extraordinarily hostile, scornful, ridiculing Ted in every possible way — ‘Lyin’ Ted’ — so those things bruise, but it didn’t affect the relationship,” Cooper said, though he and Sessions did fall out of contact during the general election.

After Sessions was nominated for attorney general, however, he sought his old friend’s assistance to prepare for what was shaping up to be a grueling confirmation process.

“I was interested in helping my old friend, who I thought and believed then — and think today — would be and is a terrific attorney general, a man of consequence, a man whose conservative values I share, and who is energetic and forceful and firm in his beliefs and would advance them, even at some costs,” Cooper said.

<<enter caption here>> on December 6, 2010 in San Francisco, California.
Charles Cooper speaks to reporters at a news conference following a hearing at the Ninth Circuit Court of Appeals on December 6, 2010 in San Francisco, California.

Cooper, 65, has been involved in a number of high-stakes congressional hearings, including the successful effort to put Justice Antonin Scalia on the Supreme Court, the failed nomination of Reagan’s Supreme Court nominee Robert Bork and his own successful confirmation as assistant attorney general for the Justice Department’s Office of Legal Counsel.

An exchange “that would come to haunt him”

For Sessions, Cooper led an intense preparation period over five weeks that included six “murder boards”— sessions of mock grilling — that Cooper said lasted a half day each.

“I was very proud of his performance and I was proud of our team for how well-prepared he was,” Cooper said.

He said that after the marathon confirmation hearing, he loved watching news anchors “who were very much not friendly to the idea of Jeff Sessions becoming attorney general” sound “despondent” when they described Sessions’ performance.

“‘Well, he didn’t say anything, he was so prepared,'” Cooper said, recalling the news coverage. “You’re damn right.”

He said the confirmation hearing “was a great triumph” for Sessions.

“Little did we know that there was this exchange with [then-Minnesota Sen. Al] Franken that would come to haunt him — and me — in one congressional hearing after another,” Cooper said.

During the now-notorious exchange with Franken, Sessions said he did not have “communications with the Russians” during the campaign. At the time, his claim did not cause much of a stir — even Cooper didn’t think about it in the moment. But less than two months later, the Washington Post reported that Sessions had met Russian Ambassador Sergey Kislyak in 2016, in two separate interactions.

Sessions’ spokespeople scrambled to explain the omission, which also occurred in a written confirmation questionnaire, by arguing that Sessions met with Kislyak in his capacity as a senator, not in the context of the campaign. Under pressure from Democrats for that revelation and others, Sessions publicly announced his recusal from the federal Russia probe — a recusal that has continued to tax his relationship with Trump.

What remains most puzzling about Sessions’ slip-up is that he answered a question that Franken hadn’t even asked him. Franken’s wind-up included a monologue about allegations that Trump campaign surrogates communicated continually with intermediaries for the Russians, but he asked Sessions what he would do as attorney general if evidence of such communications came to light.

“That was the one moment in the confirmation hearing when his discipline and his preparation may have lagged,” Cooper told TPM.

“Instead of answering the question — and hearing the question and answering the question — which is of course, your witness, you want your witness to do,” Cooper said, “he heard the thing that was threatening and that his mind arrested on or seized on in this lengthy statement by Franken, and the one thing that he wanted to put on the record and make clear, there could be no doubt or confusion about, was that he was such a surrogate.”

 

After Trump fired then-FBI director James Comey, with Sessions recused, the DOJ official next in the line of leadership — Deputy Attorney General Rod Rosenstein — made the call to appoint Mueller as special counsel in charge of the federal Russia probe.

Mueller’s ongoing investigation has continued to dog Trump — reportedly prompting outbursts of anger from the President — while it continues to rack up charges against members of Trump’s circle. Two of his campaign associates, as well his former national security advisor Michael Flynn, have entered guilty pleas and are cooperating with Mueller’s probe. Trump’s former campaign chair Paul Manafort faces a slew of charges, and Mueller has filed indictments against Russians who allegedly mounted a social media campaign to influence American voters.

Sessions has been swept up in the probe not only because of his experience on Trump’s campaign but due to Mueller’s investigation of obstruction of justice allegations. As the probe has gained public momentum, Trump and his allies have attacked Sessions for not cracking down on what they claim to be DOJ abuses in the federal investigation. Trump’s public and private attacks on Sessions have attracted the special counsel’s attention, the Washington Post reported last week, as part of the obstruction inquiry.

Besides Mueller’s investigation, congressional committees are pursuing a series of competing probes that have featured closely watched hearings, partisan infighting and plenty of leaks.

Cooper told TPM that he sees parallels between the current moment and the Iran-Contra affair, which he recalled “threatened the very foundations” of the Reagan administration.

Cooper was part of a small group including DOJ officials Brad Reynolds and John Richards that then-attorney general Ed Meese assembled in 1986 and tasked with undertaking an internal investigation over the Thanksgiving weekend into the secret arms-for-hostages deal with Iran. After Reynolds and Richards found an incriminating document among National Security Council deputy director Oliver North’s files detailing the diversion of profits from the arms sales to Nicaragua’s contras, they told Meese and Cooper over lunch at Old Ebbitt Grill. The group, in turn, confronted North that Sunday evening in an interview that Meese led.

“We did a herculean job over the Thanksgiving weekend. Our families were not too happy about it. And then we went to the President and said, guess what, we’ve got a problem here,” Reynolds recounted to TPM.

By Cooper and Reynolds’ accounts, Meese and Reagan’s decisions to act quickly on what they learned from their internal investigation may have saved Reagan’s presidency. Other top DOJ officials questioned why a group of Meese’s closest advisors — rather than Criminal Division attorneys and FBI investigators — were put in charge of the initial probe in the first place.

Regardless, what they uncovered kicked off a congressional investigation that included months of hearings as well as an independent counsel investigation that resulted in a dozen convictions. Cooper appeared in front of a select congressional committee just before North testified; he told lawmakers he wouldn’t trust North to tell the truth, even under oath.

“All roads lead to Chuck”

Cooper was hired to the Justice Department after graduating first in his class from the University of Alabama (a few years after Sessions) and served a clerkship with Supreme Court Justice William Rehnquist. He grew up aspiring to be a professional baseball player and considered a legal career his “Plan B.”

At the Department of Justice, Cooper started in the Civil Rights Division, where he worked under Reynolds, and then moved to the Office of Legal Counsel, a powerful office responsible for providing the executive branch with legal advice.

His Reagan administration colleagues remember Cooper as being extremely hard-working, meticulous and thoughtful — a fan of “noodling,” as one DOJ attorney remembered Cooper calling his practice of thinking through tough issues.

“He speaks with great care and formality, in sort of a Southern way, if you will, he’s kept as part of his persona,” Doug Kmiec, a top Office of Legal Counsel attorney under Reagan, told TPM. He added that Cooper was “very comfortable” dealing with unsettled legal questions.

Meese, in an interview with TPM, praised Cooper as a “a very good trial attorney” with a “great legal mind” and “very good judgment.” He said that Cooper is “able to get along well with others,” which could be helpful for Sessions as he deals with lawyers on the other side of the investigation.

Roger Clegg, who worked at the Justice Department with Cooper, said Cooper was “among the very smartest and the very most conservative” lawyers in the Reagan Justice Department.

“What distinguished him was not that he was different, but just that he was better, in terms of legal talents and commitment to principle,” Clegg told TPM.

At times, Cooper’s legal decisions prompted division and attracted controversy to the department.

He signed one memo that defended the government’s right to turn down job applicants on the basis of them having AIDS. Another brief he signed argued that the IRS did not have the legal authority to deny Bob Jones University a tax exemption due to its ban on interracial dating. The Supreme Court rejected Cooper’s position 8–1.

“The two of us didn’t always agree on legal outcomes,” Kmiec, who opposed Cooper’s position on the AIDS memo, said. “But I will say, when we disagreed, it was a disagreement with civility and he would match me toe-to-toe doing research for an opinion.”

More broadly, the Justice Department that Cooper served is remembered for weakening civil rights enforcement, fighting affirmative action programs and curtailing the power of consent decrees.

After the Reagan administration, Cooper kept himself firmly in private practice. He co-founded his own firm Cooper, Carvin & Rosenthal in 1996. The firm evolved into Cooper & Kirk a few years later. Over the course of his private practice, Cooper has represented an assortment of high-profile clients.

Former U.S. Attorney General John Ashcroft (R) listens to his attorney Charles Cooper (L) during a hearing before the House Judiciary Committee on Capitol Hill July 17, 2008 in Washington, DC.

He counseled former attorney general John Ashcroft during an investigation into the so-called “torture memos” from former President George W. Bush’s administration; he led an unsuccessful defense of California’s same-sex marriage ban Proposition 8; he’s been a go-to outside attorney for the NRA in a number of big cases. Most recently, Cooper defended a Texas county’s bail system that courts have found to be discriminatory towards poor people.

“He’s very much, certainly since leaving DOJ, has been the go-to legal warrior for the far-right,” said Elliot Mincberg, a fellow for the progressive group People for the American Way. “It’s hard to think of major cases and issues that he hasn’t had some involvement in one way or another in his career.”

Cooper’s firm has also served as a launching pad for a number of conservative legal stars. In addition to Cruz, Sen. Tom Cotton (R-AR) worked there, as did Rachel Brand, who recently stepped down as assistant attorney general, the third-ranking post in the department. Jesse Panuccio, who is serving as acting assistant attorney general after Brand’s departure, is also a Cooper & Kirk alumnus.

The sword Senator Cruz received while working for Chuck Cooper’s law firm.

“You could argue that all roads lead to Chuck when it comes to the conservative legal movement,” David Lat, founder of the legal blog Above The Law, told TPM.

Cooper’s firm gives its lawyers cuff links with its logo, a laurel and a sword, for its motto “victory or death.” Associates have also been given actual swords. Cotton, who called Cooper “one of the best lawyers of his generation,” confirmed to TPM that he still has his sword, while Cruz’s sword is displayed in his Senate office.

“People were attracted to the firm, they were inspired by Chuck, first and foremost,” Derek Shaffer, a former Cooper & Kirk attorney who started there in 2001 and eventually rose to partner, told TPM. “Chuck did build this remarkable firm that handled these very high profile intellectually interesting important cases.”

“At the end of the day, the risk-reward on this isn’t working”

It is not a coincidence that some of Cooper’s proteges ended up working for the Trump administration. While Cooper prepared Sessions for his confirmation hearing, they also discussed who should lead his Department of Justice. Cooper was involved not only when it came to the selection of his own former colleagues; he was also with Sessions when the latter interviewed Rod Rosenstein, the deputy attorney general who now oversees the Mueller investigation.

Rosenstein has become a common target of Trump and his allies. The antipathy toward him has gotten so intense that a political group has launched an ad campaign accusing him of being a “a weak careerist” who was “protecting liberal Obama holdovers and the deep state, instead of following the rule of law.”

Cooper did not know Rosenstein, then a U.S. attorney in Maryland, before the interview. “The fact that he had served for eight years in the Obama administration as a U.S. attorney was a question, I wanted to hear how he could explain that,” Cooper said. “He did, certainly to my satisfaction.”

He called Rosenstein “a man who truly loves public service, who truly loved being a prosecutor.”

When asked by TPM about Trump’s attacks on the Justice Department, however, Cooper declined to comment.

Cooper’s conversations with Sessions about the shape Trump’s Justice Department would take also included the possibility that Cooper would become solicitor general.

As much as Cooper has enjoyed private firm life — which has allowed him to work extensively from Florida, where he has a second home — he called the DOJ position the “only job better” than his current one.

His name was on the reported shortlist — along with George Conway, senior White House adviser Kellyanne Conway’s husband. But Cooper said that “there were powerful forces in the White House who had different candidates.” He told TPM that he had not even started the vetting process within the White House when he pulled his name from consideration.

“After seeing what Jeff went through and knowing that the support I’d get — I would not have the benefit, as I did once, of a White House machine in all likelihood caring a lot about me, having come out of the campaign, out of the Cruz campaign tradition — it just seemed to me, look, this is not something that — at the end of the day, the risk-reward on this isn’t working,” Cooper told TPM.

His move surprised outside observers, and some speculated that a Rachel Maddow segment on Feb. 8, 2017 — where she ran him over the coals for the AIDS memo and Bob Jones brief — played a role in his decision, which Cooper announced the following day.

Screencaps taken from Maddow’s Feb. 8, 2017 show on MSNBC.com. Maddow begins to discuss Cooper at the 8:55 mark.

Cooper told TPM that he had already decided to withdraw, but that the Maddow segment prompted him to announce it more quickly than he would have preferred, given that Sessions himself had just been sworn in.

“I didn’t want Rachel Maddow night two or Washington Post editorial or a New York Times editorial and the rest of basically the organized attack on the next bad idea from the Trump administration to start taking root,” he said. “Don’t think for a minute that I wasn’t fully aware that if I had gone through with this that I would have been a regular feature on Maddow’s show.”

The job ultimately went to Noel Francisco, who, it so happens, was also the second associate Cooper ever hired at his firm.

Cooper said that his decision to turn down the DOJ job came down to a calculation of “known costs” and “unknown costs.”

“I was willing to pay the known costs,” he said, which included the tough confirmation process, the media scrutiny and the family sacrifices. But Cooper said that the political antagonism has risen to “a different and new level.”

“I could foresee the organized challenge to me that had just failed to stop Jeff,” he said. “But some things you can’t foresee. Did Rod Rosenstein foresee that he’d be a subject of an advertising campaign that he has now been the subject of? That’s an unknown.”

 

Corrected: A previous version of this story misspelled Ted Olson’s name.

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