Yates stated in her letter below that she was not convinced that the law is lawful or right. I certainly understand the concerns. Indeed, I share the view that the order was poorly executed and contradicts our values as a nation. However, Yates indicates that the Office of Legal Counsel found that the order was lawful (something that Yates dismisses). The OLC itself will not confirm that it signed off on the order
. Any OLC view is not controlling the Attorney General but it does show that lawyers can disagree on the issue. As I have previously stated
, there legitimate arguments under the constitution and federal statutes that can be made by challengers. However, I still believe that the existing precedent favor the Administration both in terms of the alleged unconstitutionality
and the alleged unlawfulness of the order
. That does not mean that parts of the order could not be struck down, but that there are compelling arguments on both sides. That is not normally the basis for an attorney general to order all Justice Department employees not to assist that President of the United States.
It is curious that Yates is taking this position after the Justice Department argued for the last eight years, and as recently as 2016, that President Obama had sweeping authority over immigration. Indeed, this was the department that argued that federal courts should not second guess a president on immigration decisions even when he was accused of negating federal law. It is also the Justice Department that defended aspects of the alleged “torture program” under the Bush Administration. Yet, Yates is saying that this issue requires her to order an entire department to refuse to help a sitting president? What is missing is a discernible standard for taking such an extreme action. Yates’ letter does little to answer that question.
I was also struck by this passage: “Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose.” That appears to be a reference to Trump’s campaign statements and the recent statements of Rudy Giuliani t
hat Trump wanted a “Muslim ban.” The Justice Department has long maintained (including in cases that I litigated) that the alleged motivation behind laws is entirely immaterial and that courts should not review the legality of a law based on speculation as to motive. Indeed, this is a particularly bad case for such a change. It is possible that Trump desired a Muslim ban but that the drafters counteracted that desire. This is in fact not a Muslim ban. It does not ban most Muslims from entry. There was therefore a very good reason why the OLC would not consider those statements.
In the end, I believe that justice is served by both sides presenting these arguments fully and zealously before a court. I disagree with Yates’ decision and her underlying rationale. Yates made it difficult not to fire her. That is what makes this less of a “massacre”
and more of a suicide.
Here is the letter:
On January 27, 2017, the President signed an Executive Order regarding immigrants and refugees from certain Muslim-majority countries. The order has now been challenged in a number of jurisdictions. As the Acting Attorney General, it is my ultimate responsibility to determine the position of the Department of Justice in these actions.
My role is different from that of the Office of Legal Counsel (OLC), which, through administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted. Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just.
Similarly, in litigation, DOJ Civil Division lawyers are charged with advancing reasonable legal arguments that can be made supporting an Executive Order. But my role as leader of this institution is different and broader. My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.