Sally in Wonderland: The “Curiouser and Curiouser” Position of The Former Acting Attorney General

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.

121 thoughts on “Sally in Wonderland: The “Curiouser and Curiouser” Position of The Former Acting Attorney General

  1. I have decided to do an analysis of the Proto-Typical Democratic Operative Argument Form.

    Argument: The Democrats seem to be somewhat confused, first calling for Comey to be fired, and then expressing chagrin when Trump fires Comey.

    Proto-Typical Democratic Response to the Argument: Trump is stupid!!!

    It appears to me that the Democrats have confused making rational responses to arguments and the expression of ancillary personal opinions. Perhaps this inability to distinguish facts from opinions is why Sally is in Wonderland???

    Squeeky Fromm
    Girl Reporter

  2. JT’s post today is sad, just sad. Kill the messenger JT? Really? The party is over Trump supporters and when you wake up and smell the coffee, I’m sure you are going to have one hell of a hangover.

      • Of course being in opposition with JT wouldn’t encourage you to expand your mind a skosh to consider his legal opinion to be sound? I’m not certain what you, Natacha or Fishwings are drinking, but it sure isn’t coffee.

  3. The message being sent to young people, as Sen. Blumenthal endorses, is “the law doesn’t carry any special importance or legitimacy compared to your own personal feelings”. This naive, idealistic sentiment undermines the ability of people to govern themselves through a legal process built out of rules, standards and conventions. Rather, it justifies the anarchy of defiance of laws and previously-agreed conventions. Young people are being mistakenly told “you can always have it your way, you just have to be prepared to up your militancy”. This approach is a rejection of normal order as a slower, safer means of achieving reforms.

  4. Maybe Trump had it right that he alone would make America great again. His total incompetence has made all of America see his con-game and BS. He has woke up the people in a way that shows he is the worst of the worst. Mark Twain said ” Its easier to fool people than to convince them that they have been fooled” Trump has woke up the fools.

  5. OT sort of, but important:

    Info on torture and other things about the CIA.

    Sally, this crap is illegal but I didn’t notice you taking legal action let alone saying anything about its morality. Anything you have to say about how you worry regarding “legality” is BS. You didn’t prosecute banksters. You didn’t prosecute Obama for war crimes and death in immigrant detention. You and your coterie are not heroes. You are well paid flunkies.

  6. Uh, Jonathan. The attorney general is the PEOPLE’s attorney, not the attorney for the fat, bald mental case who stole Hillary Clinton’s Presidency with the help of the Russians to whom he is beholden. Her job is not to try to defend his unconstitutional unilateral mandate. Oh, and let’s not forget that the Court have sided with her, so she’s been exonerated. It would be unethical for her to use taxpayer resources to attempt to defend an unconstitutional proclamation enacted solely as a measure to gain publicity and to appeal to the base of the loser of the popular election who seemingly can’t do anything right.

    • LOL! Some might think Natacha is a parody, but she is real. We used to have a lotta Natacha’s here.

    • Natacha,..
      The Justice Dept. is part of the Executive Branch.
      It is not “the PEOPLE’s Court”, or Judge Judy’s court, etc.
      There have been about a dozen presidents in my lifetime, and it’s safe to say that none of them have wanted DOJ members undermining/torpedoing their agendas.
      “Let’s not forget that the Courts have sided with her”.
      Your statement is arguably true in part, but Sally Yates was not, and is not, a justice of the Supreme Court or any other court.
      That’s why the question came up about “who appointed you to the Supreme Court?”.
      To say that “her position has been exonerated” is both inaccurate and premature.

      • The role of the Attorney General is NOT to defend indefensible, unconstitutional unilateral executive mandates. The Attorney General is NOT the President’s lawyer, he/she is the lawyer for the entire country. The Department of Justice is NOT the President’s private law firm, available at his whim to take on any cause he wants defended. Any lawyer, including, and especially, an Attorney General, has a duty to act reasonably in his or her advocacy, and advancing absurd arguments, which defending this order would have entailed, is not appropriate. Allocation of resources paid for by taxpayers figures into the equation. This “executive order” was held to be unconstitutional by several courts. Yates was right. Consider this as well: the majority of people who voted did NOT vote for him. His “agenda” does not reflect the will of the majority of this country.

        • Nice spin, Natacha.
          Take a partisan policy stunt by Yates and then present it as some noble, heroic, principled legal stand.
          There seemes to be no shortage of lower federal courts willing to, eager to, step in to prevent any Trump Executive Order on immigration from being implemented.
          I can understand why sanctimonious partisan hacks would prefer to see an internal saboteur within the administration stomping out an EO before it even gets to the court.
          When a high-ranking DOJ official like Yates wraps a policy dispute inside of inconsistent and ineffective legal action, no adminiatration is obligated to keep that official onboard.

        • Yates serves the President. If she finds she cannot carry out the tasks given her by the President, she should have resigned.

        • Natacha, let’s hear your analysis of the DOJ and the two stellar AG’s we had under Obama. Holder sure seemed to act like not just a close personal friend of Pres Obama (along w their wives and Val Jarrett) but also his personal wing man.

      • Yes, excellent analysis Natcha. Now let’s hear your analysis of Obama’s AG Eric Holder (aka Obama’s wing man) and Loretta Lynch.

    • Squeeky, nice post. The Dumocrats will insist you dubbed their remarks. I have yet to see any of the media interview one of these weenies and confront them with these recordings.

  7. There seem to be a lot misconceptions about what Sally Yates said in the Senate hearing. {And a lot of speculative assertions as to what she thinks). You can read the full transcript of the Clapper/Yates hearing here: https://www.washingtonpost.com/news/post-politics/wp/2017/05/08/full-transcript-sally-yates-and-james-clapper-testify-on-russian-election-interference/?utm_term=.5d1c601cdab8

    One more point: JT mentions the Democrats lauding of her testimony. I heard a number of Republican were also impressed by it, Sen Lindsay Graham was one and there were others. Since Sen Cruz thought he would school her on the law and she turned it around and she schooled him, I don’t think Sen Cruz will have much good to say about her. He left the hearing immediately after her response.

  8. I watched you on c-span this morning 5/11/2017 and you are the first person I have seen on c-span that has made sense in a long time.as for yates she has to obey orders from the president. she can not make her own laws. I will follow your blog.

    • Turley ignores the fact that at the end of her face-palming of Cruz, she stated quite clearly that she believed that the order was unconstitutional.

      Turley also links to a case involving the 2nd EO as further *proof* that Ms. Yates reading of the law was incorrect. The problem is, Ms. Yates was not the acting AG when the 2nd order was issued…

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