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 that 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.
President Donald Trump fired acting Attorney General Sally Yates Monday night for “refusing to enforce a legal order designed to protect the citizens of the United States.” As I stated on “Morning Joe” this morning, Trump clearly has the right to fire Yates. Indeed, Yates’ action (and rationale) contradicts long-standing Justice Department policies on such issues. Despite my personal opposition to this executive order, I believe that Yates was mistaken to take this action and that it does not serve the interests of justice to obstruct efforts to have this matter fully litigated before a court for independent review.
Based on what I know about the vetting process for immigrants that existed before the executive order was signed, and cognizant of the adverse side effects of the order, I am of the view that the executive order was a very bad idea. And I also believe that the manner in which the executive order was implemented was horrible. A classic case of how not to do something. Unless your goal was to create the chaos that ensued (in which case you don’t belong in the White House).
Nevertheless, I am of the view that Yates should not have instructed DOJ attorneys to not defend the order. That was a mistake. She should have resigned with a statement that she was resigning because she strongly disagreed with the order and could not in good conscience defend it.
Personally, had I been in her position, I would have had my staff attorney create a memo to be sent out which describes in detail all of the potentially valid arguments that the plaintiffs could make to invalidate the order, noting that DOJ will have to overcome those arguments in court to successfully defend the order. After sending out that memo, I would have resigned. (I should mention that I once worked for DOJ long ago in a galaxy far away. )
I’m also of the view that describing the firing of Yates as the equivalent to Nixon’s Saturday Night Massacre is wrong. Not the same thing. I don’t like Trump at all, but her firing was fair game.
Every issue has become contentious, and the parasitic lawyers love it. There can be nothing said or done without offending someone, and the assumption is that we can find answers in courts with technical glitches, endless debate, glacial slowness and little real justice.
It has been said that the constitution is not a suicide, but what is says has been so contorted as to render its most basic principles subject to mindless challenges by cockroaches who live in the cracks between the laws.
Well said Ron!
Ron,
That’s the luxury of a “living constitution” where words can mean anything or nothing at all, depending on who’s making the decision. We recently saw it with the same-sex marriage decision. – The Fourteenth Amendment did not give black men or women of all stripes the right to vote. It did not give a woman in Illinois the right to practice law. However, it magically gave same-sex couples the right to marry, because they would feel like less of a citizen if they could not. – The right to vote was not as important as the right to marry a person of the same sex, in reference to being a citizen? That’s just flat out nuts.
Our problem is that we now have social justice courts, and if the Constitution gets in the way, they just figure out a way to create law to serve their purpose. IMHO, that’s very dangerous and should be unacceptable to all.
I hope we have a couple of these show downs a week. That way we can work out some of these controversial issues and make some determinations going forward instead of keeping things buried within the current status quo.
This woman was Loretta Lynch’s deputy. Do you think she’d have had that position if professionalism and integrity were her lodestars?
It’s time to drain the swamp. Here’s Don in action.
Yates screwed up. She let her personal bias influence her responsibility to the law. She got canned. Now let’s turn to the pathological liar in the White House. Is there any recourse to a President that lies on a constant basis?
Bowl me over with a feather! You actually got it right that she should be canned! I hope this is a sign that your brain cells are beginning to function again, because of being around smart people here who take the time to try to educate you!
But, we have to do have to do more work in the “involuntary verbal spasms” area, where you give Dr. Strangelove and his involuntary Nazi salute arm a good run for his money.
Squeeky Fromm
Girl Reporter
I would say no, judging by the last 8 years.
webster, If you knew anything about employment law you would know there will be no lawsuit on this.
I just am having fun with this one. Sessions asked Yates during a confirmation hearing, if she would stand up to the president if she thought an action was unconstitutional. The hearing tapes were quite long. I finally found what I was looking for. Sessions is going to be a hypocrite or not.
I hope Trump is ready to open up the treasury to pay out the lawsuit that is coming, or maybe Yates can sue Trump personally as well. I am happy if Trump has to hire outside counsel.
websterisback – Yates said she would inform the President, not send a memo to all DoJ employees.
Yates did not determine the Executive Order to be unlawful. She only had the courage to say she wasn’t sure if it was lawful. – That’s a far cry from refusing to execute a law that she clearly found to be unlawful.
Jack – Yates complaint is to Trump, not to the entire DoJ. She over-stepped her authority. And it is HER opinion. In law there are always at least two sides, sometimes more. Remember when Comey said he couldn’t see getting a conviction on the evidence he had against Hillary? Several AUSA said they could convict her in a heartbeat.
Courage would be to go to your boss to express your opinion on his order. Wisdom would be to be armed with facts to support your opinion. Insubordination would be to avoid the above two steps and instruct your subordinates to disobey the order.
It is indeed curious Yates took this grand standing position in light of the fact that she and the Justice Dept. gave Obama carte blanche on immigration, and really all issue. I would have respected Yates if she simply resigned saying she couldn’t abide the order. My job is analyzing what motivates people. Righteous motivation would have her respectfully resigning. Political motivation has this grand standing act. And, wasn’t it her former boss who said, “Elections have consequences.”
It seems Yates lost her objective mind for a second, and she paid for it.
“Indeed, I share the view that the order was poorly executed and contradicts our values as a nation.”
Poor execution is a management issue, not a legal argument. As for contradicting our values as a nation, I question whether you have a grasp on exactly what values the majority of this nation have or want to see supported.
Yes, there are consequences for hypocrisy. She doesn’t have a rational for her actions. In fact, she is contradicting her own past actions and rational in approving Obama’s unlawful actions. Had she not been a supine supporter of Obama’s unlawful actions, she would at least been able to make an argument with a clear voice.
That said, Trump needs to back off, way off. I don’t see him standing on any principle because he certainly has not directed the CPB and other federal agents to follow the court orders now in place. He has no ethical standing behind is own actions.
I truly think we are seeing a clash between members of the oligarchy. That is why we do not see any ethical stances or rational behavior. They are dragging our nation into an even worse place than before. The govt. is hurting people from overseas and hurting people here. Is there not even one person of conscience left in these warring factions who will get a hold of these people and tell them there is something more to life than money and misused power? Before these factions ruin us all, they should restart with the idea that the highest good one may do with one’s life is not to harm others and collect a dragon pile but to help others. They’ve got the dragon pile, now use power and money wisely, for the common good.
I think President Brass Balls found the common good.
And its to protect the American people. Power on President Trump.
Ter ber,
Trump took an oath to uphold our Constitution. He’s violating that right now.
He needs to fire any and every officer who refuses the courts order. Those are lawful orders.
There are other ways of keeping us safer. But the real point is that presidents do not take an oath of office to be our father or mother figure and keep us safe. They take an oath to uphold the Constitution. That is an American value at the deepest level and every citizen, including Trump supporters, should be screaming that he is failing miserably to uphold his oath.
Jill,
Under what Constitution is the Executive required to uphold the order of a District Court Judge? Is that judge charged with defending the nation? Is that judge privy to the national security briefings?
The fact is, the stay order of the District Court Judge only applies to the plaintiffs before him or her. It does not have sweeping effect upon the rest of the country.
I think you should take the time to review Mississippi v Johnson (1867).
Jack,
We have three branches of govt. The judiciary is one of those branches. The judiciary issued a legal order which is the law at this time. Everyone, including Trump is required to abide by that order as it is the law.
Instead of abiding by that order, CBP and DHS have officials refusing to follow the law. Trump is required by his oath of office to protect and defend our Constitution. That includes abiding by the rule of law and insisting federal law enforcement do also.
Judges are charged with defending the Constitution, the same as Congress and the President. We don’t know that any longer because it’s been such a long time of unlawful exercise of executive power in this nation. We basically have one branch of govt., the executive, who has been making and/or ignoring laws for at least 15 years, aka–a dictatorship.
Trump campaigned in part in restoring the rule of law. If he is serious about that he would need to fire those officials who do not follow the law. His supporters should insist he follow the rule of law.
Each branch of govt. is in effect charged with keeping the American people safe by upholding the Constitution. BTW, there were several court rulings on this case and these judicial orders were countermanded unlawfully. Please look that up.
Jill – it is interesting that NOW people should obey the directives of district judges. The Obama administration has been dragging its feet for 8 years on FOIAs under different judges. We still don’t have all of Hillary’s emails from the State Dept. We have a district judge who was so annoyed at the DoJ attorneys he wanted them all to retake their ethics classes before they appeared before him again. The DoJ continually lied to him, to his face and in documents submitted to the court. This is the same DoJ whose leader was held in contempt of Congress. This is the same DoJ whose leader had a half hour secret chat with the husband of a woman in a major investigation by the FBI.
Paul,
I agree with you. You make many valid points.
We have a Constitutional crisis, at least since Bush. Obama has done all sorts of unlawful acts and Democrats just went along with it because it was their side doing the BS. I have said this was wrong. I warned this was a horrible mistake as every time they excused Obama they gave him more power which he had no right to have. Further, the next president would get and take even more power. It has also thoroughly undercut Democrat’s complaints about Trump as they can rightfully be called, giant hypocrites.
This was the disaster any non-partisan person could see. Now we are seeing a cult of personality arise around Trump. His voters are being hypocritical in not calling him out. If it was wrong under Obama and Clinton (and it was horribly wrong) it’s wrong under Trump.
We need to be citizens with ethics who believe in our own Constitution enough to hold any party’s politician accountable for their wrongdoing.
Great to see an action-packed White Houze.
Unbiased, reasoned, and well stated.
Goodbye Sally Yates!!! You were not good at your job for 2 weeks and were fired on Facebook. That has got to sting. Although, I place this squarely at Obama’s door. For an ex-President, he is still used to the power. When you read Sally’s memo, it is a SJW memo, not a legal memo. She drank the Kool-Aid.
I am convinced that the EO is “lawful”. By that I mean that the Supreme Court will find it lawful.
I think that Trump waited too long to fire the itchBay.
Seal the border now not later. It has been sixteen years since 9/11 and the terrorists are still coming into Laguardia as easy as they are walking into the training session in Iran.
Trump needs to hold a Press Conference. He should have a true printing press in front of him to remind the viewers that our “Press” has gone to hell in the handbasket.
Thank you for making this rational argument.
So far so good and going at it is going to produce a workable and honest system instead of the whimsical directives of a golf pro wanna be.
Hammer down on Sally was a good move after all those people in the Executive Branch need to learn whose the boss something they have been without for eight or more years. The proper way would have been to file an enquiry as it’s a direct path from AG to Pres stating perceived problems and asking for clarification and instruction. I wonder how many other little miniture dictator wanna be’s there are to discover and root out? Given the Fourth Branch alone it’s going to be a long long process but well worth it getting things back under the Constitution.
Just wait until a pro life holdover acting AG refuses to enforce or defend a new Administration’s position on abortion, abortion access, etc.