Below is my USA Today column on the testimony of Sally Yates, former acting Attorney General, on her unprecedented order to the Justice Department not to assist President Donald Trump in the defense of his immigration executive order. While the hearing was focused on her warning with regard to former National Security Adviser Michael Flynn, some of us were more interested in how she would respond to criticism over the order that led to her being fired. Both Democratic and Republican lawyers have raised serious ethical misgivings over her decision. The hearing however only magnified the questions over the basis for her actions. Here is the column.
Sometimes congressional hearings bring clarity to controversies. Many times they do not. Controversies can become “curiouser and curiouser,” as they did for Alice in Wonderland. That was the case with the testimony of fired acting Attorney General Sally Yates before the Senate Judiciary Committee this week discussing her unprecedented decision to order the entire Justice Department not to assist President Trump in defending the first immigration order. Yates was lionized by Democratic senators as a “hero” and has been celebrated in the media for her “courageous stand.” However, for those concerned about constitutional law and legal ethics, there is little to celebrate in Yates’ stand. Indeed, her explanation before the Senate only made things more confusing. It was a curious moment for the new Alice of the Beltway Wonderland: “Curiouser and curiouser!” cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English).”
There has been considerable speculation on why Yates would engineer such a confrontation, but what is more important is her justification for ordering an entire federal department to stand down and not to assist a sitting president. Yates’ prior explanation fell considerably short of the expected basis for such a radical step. She dismissed the review of the Office of Legal Counsel (OLC) by insisting that those career lawyers only look at the face of the order and did not consider Trump’s campaign statements and his real motivations. Of course, many question the use of campaign rhetoric as a basis for reviewing an order written months later by an administration. Most notably, Yates did not conclude that the order was unconstitutional (in contradiction with her own OLC). Rather, she said that she was not convinced that the order was “wise or just” or was “lawful.” She does not explain the latter reference but then added that she was acting on her duty to “always seek justice and stand for what is right.” That is a rather ambiguous standard to support this type of obstruction of a sitting president.
It got far more “curiouser” when Yates appeared at the hearing. Senator Ted Cruz raised 8 U.S.C. Section 1182, which expressly allows a president to bar the entry of “any alien or of any class of aliens into the United States would be detrimental to the interest of the United States.” Yates responded by saying that there is also a provision enacted later that says that there can be no discrimination based on race, nationality and other criteria. However, that provision, 8 U.S.C. Section 1152 (a) (1) (A), would not impact much of the executive order since it does not on its face apply to refugees or nonimmigrant visas. Moreover, the law was later amended to exclude changes in “procedures” even for those seeking immigrant visas. Yet, Yates relied on Section 1152 and said “that’s been part of the discussion with the courts, with respect to the INA.” However, that argument was rejected by some judges and was treated as limited even by those granting partial injunctions.
So all of this leads to one of the few truly probing questions given Yates at the hearing. Sen. John Kennedy, R-La., asked, “Did you believe, then, that there were reasonable arguments that could be made in its defense?” In an astonishing response, Yates said no because she decided on her view of Trump’s real intent and not the language of the order. However, many judges disagree with implied motive as the appropriate standard for review, as evidenced by the oral argument this week before the Fourth Circuit. More importantly, at the time of her decision, many experts (including some of us who opposed the order) were detailing how past cases and the statutory language favored the administration. It is ridiculous to suggest that there were no reasonable arguments supporting the order.
Despite this record, Democratic senators heralded Yates as an inspiration. Blumenthal said that he hoped that young people were watching Yates and saying, “That’s the kind of professional I want to be.” It is a curious message to send. According to this same standard, Attorney General Jeff Sessions would also be a hero if he ordered no one at the Justice Department to assist in defending environmental laws as an unconstitutional deprivation of state authority or anti-discrimination laws as a deprivation of religious liberty. There are also judges who might agree with him on those issues and he clearly does not view some of those laws as “wise or just.”
All of this leads to the curious question of why Yates would appear at a hearing to insist that there was no reasonable basis to defend his order. Despite voluntarily appearing, Yates expressed discomfort in addressing the raw political rationalizations given by both sides of her conduct as acting Attorney General. It was her Alice moment as explained by the Cheshire Cat:
“But I don’t want to go among mad people,” Alice remarked.
“Oh, you can’t help that,” said the Cat: “We’re all mad here. I’m mad. You’re mad.”
“How do you know I’m mad?” said Alice.
“You must be,” said the Cat, “or you wouldn’t have come here.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter @JonathanTurley.