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. You’re assuming that Sally Yates thinks that law is discoverable and binding impartially on all parties. She’s a discretionary appointee of a Democratic administration. She sees law as a tool of political warfare

    • Dss…..she initially referred to “unwise and unjust” POLICY.
      Since she was appointed to the Supreme Court, she’s now “ruling on” the constitutionality of the EO.
      This re-enforces what you’re saying about political warfare.

  2. Being from LA (Lower Alabama), somehow I missed that. Oh..small trivia. LA is actually used often here. It identifies everything south of Montgomery. My test is the proper conjugation of “ya’ll” is my standard.

    [Ya’ll * Ya’lls * All Ya’lls]

    • CV, I love to learn new local, geographical, designations. Thanks. I’ve only been to UA[Upper Alabama]. I have been to Biloxi, and although a different state, probably a similar culture?

  3. I am an independent voter in Massachusetts, and I have a question re the Comey firing I would like to see Attorney Turley address in detail.

    My question: Given that so many lawyers (including Jonathan Turley), have described as highly egrigous the actions of former FBI Director Comey in the press conference Comey gave wherein he announced no charges would be filed against Hilary Clinton and then criiticized her, why didn’t then President Obama, a lawyer himself, immediatey fire Comey?

    This is what confuses me – if every government lawyer knew what Comey did was so wrong, at that time, why was there no action taken at that time?

    In my view, the response should have been immediate, and Comey should have been fired by Obama.
    Please explain why this did not happen. Thank you.

    PS I voted for Obama, and due in large part to what Comey was saying about Clinton, i did not vote for Clinton.

    • Susan, I had the same question about the timing. One thing that I read yesterday COULD be behind this. I heard that it has taken some time to get the AG through Congress and seated. And in the course of his hearing, AG Sessions promised to recuse himself and therefore could not handle anything that broached the Russia thing. And that the delay in various AG appointments, etc. resulted in delay of the analysis and process of the Comey firing.

      I dont know if this is true or not. I just present it.

      But its a fact that the Trump administration is facing enormous, unprecedented delay in Congress in seating its appointed officials. So much so, even an experienced president would be hamstrung. And on top of that, Trump is really an independent not a Republican, with no experience and few friends in either party….

      • Since Session recused himself from anything related to the Russian investigations the official reason for the firing of Comey had to be something else, therefore, the Clinton email investigation, even though the President had frequently praised Comey for his handling of that investigation and even him gave a recent official thank you for his excellent work. The consensus is, however, that the firing was because Comey was serious about the Russian investigations.

        To your last point, it isn’t the Congress that is holding things up with appointments. The administration is not making nominations for the Senate’s consideration.

        • Bettykath….
          There is a difference between a “consensus” and “allegations”.
          Sen. Schumer, Sen. Kaine, Sen. Warren’s accusations are not a “consensus”.
          Even if they are backed up by Saint Stephen Colbert.

    • Obama didn’t fire Comey because it would have been perceived as purely political, opening him up to criticism. That is public knowledge.

  4. Ms. Yates testified that substantially the same standards of review apply to executive orders as to acts of Congress.

    When Obamacare was under discussion prior to enactment and when it was enacted, its basis was claimed to be the Commerce Clause of the Constitution. Those who wrote Obamacare and those who voted for it rejected the notion that it was a tax because to accept that classification would have been political suicide. President Obama did not suggest to the public that Obamacare was a tax. He claimed that it was appropriate under the Commerce Clause. As I recall, counsel for the Government rejected classification as a tax during oral argument, relying instead on the commerce clause.

    The majority opinion written by Chief justice Roberts held that although violative of the Commerce clause, Obamacare was permissible instead under the powers granted by the Constitution to impose taxes and was, therefore, compliant with the Constitution. Even after the decision was released, President Obama continued to claim that it was not a tax.

    Chief Justice Roberts cited the Congressional power to tax the non-purchase of gasoline — something the Congress had never done as to gasoline or any other commodity or service. He did not suggest how it could be done: tax everybody who fails to purchase gasoline, only the owners of automobiles, only the owners of gasoline reliant automobiles, only those owning such automobiles but failing to purchase specified quantities, and so on. As I recall, Prof. Turley wrote an article questioning the majority opinion’s reliance on the taxing powers of Congress.

    The evident basis of the Obamacare decision was the notion that acts of Congress are to be upheld if there is any Constitutional basis for doing so — despite politically motivated statements by members of Congress who had voted for it and despite assertions by the President and others that it was not a tax, Under the standard applied by Ms. Yates to President Trump’s executive order, such statements would have rendered Obamacare unconstitutional and obligated her, as Acting Attorney General, to refuse to support it in court.

    Ms. Yates was asked neither about the standard applied by the Supreme Court in upholding Obamacare nor her application of an apparently different standard to President Trump’s executive order.

    • Excellent post.

      It was a bit confusing to me that the ACA was enacted under the Commerce Clause and then all of it confirmed as constitutional under the Taxing and Spending Clause rather than just a portion of it (i.e., the annual tax for failure to formally subscribe to the ACA), if that’s what happened. (I never read the Roberts opinion.)

      I do remember the issue being the punitive nature of the tax. (At the time, I thought it a penalty for just being alive, and I still do.) The Commerce Clause allows government to limit certain conduct (e.g., prevent kills under the Endangered Species Act or Angel Raich from growing a pot plant in her backyard), but it cannot mandate that somebody do anything (e.g., give blood, or even get health insurance). Frankly, I think affirming the constitutionality of the entire ACA as a tax-and-spend measure – again, if that’s what happened – based on just the consequence of not being a subscriber is intellectually dishonest.

      Regarding the EO, Mr. Turley writes, “Democratic and Republican lawyers have raised serious ethical misgivings over her decision.” The senior federal prosecutor can only enforce what she reasonably believes is lawful, but her US Attorneys and their assistants also have the obligation to enforce only what they believe is lawful. This multilevel scrutiny within DOJ is an ethics check on authoritarianism if there ever were one, right on down the line. So, I think her mandating federal prosecutors not to enforce what she herself thinks is unlawful was a mistake because it does not permit the attorney in the courtroom any discretion when he or she has just as much of an ethical obligation or at least should have. Otherwise, ethics become solely precatory or observed only at the employer’s will. I would agree that she made a mistake in ordering her federal prosecutors not to enforce what they themselves may have thought lawful portions of the EO, if any, under the President’s Article II authority.

      As for limiting her review to the four corners of the EO, there’s the question of why she should have limited review of the EO when several federal judges so far haven’t either? Constitutional scrutiny isn’t limited to government regulation on its face; it includes review of how it’s being applied. Trump has only his big mouth to thank for that. The totality of the circumstances should be what matters in reviewing an EO for lawfulness.

      • Excellent observations on an excellent comment! I particularly appreciated,

        but her US Attorneys and their assistants also have the obligation to enforce only what they believe is lawful. This multilevel scrutiny within DOJ is an ethics check on authoritarianism if there ever were one, right on down the line. So, I think her mandating federal prosecutors not to enforce what she herself thinks is unlawful was a mistake

        I couldn’t agree more. That thought had crossed my mind (what’s left of it), but had not come to the surface until you made the point explicitly.

        danmillerinpanama’s comment on ACA was exceptional all by itself and remarkably apt to the discussion.

        While I’m still punchy from all this thunking effort, the issues seem clearer.

  5. Senator Blumenthal, is a creepy, liar. He claimed to be a Vietnam hero but never served there. He BARELY beat Vince McMahon’s wife, a female clown.

        • I DID do my homework, [insert appropriate ad hominem for this fellow]. Just because a persons name is in a story doesnt mean its on topic!!

          Re-boot your brain, so you can at least make a comment thats more than a red herring

          • LOL! Ladies and gents, we have a Barney Fife policing the blog, determining w/ metaphysical certitude what is “on topic.”

    • Bruce Caputo’s career in politics in New York was destroyed by that sort of thing within days of when the papers got wind of it. Blumenthal went to the Senate. You just wonder where the bottom is.

  6. “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.”
    ― Lewis Carroll, Alice in Wonderland

  7. We are a country of laws, not of men or women. Yates and her supporters apparently believe that government officials can act on their own interpretations of the law or, worse, on their own beliefs on what the law should be. This, of course, can only lead to anarchy at best and tyranny at worst.

  8. For Yates. The question is not who appointed you Attorney General but who appointed you God? And as for who do they work for? Not the President and not for the Congress. most assuredly not for the people, th e country and for damn sure not for the Consititution

    Who do the work for?

    If not th eold fashione danswer ‘we serve the party’ perhaps it’s even a more simple.’I work for myself.’

  9. Her decision had nothing to do with “feelings”! She made an oath and her analysis of that oath, the law and the order resulted in her decision to refused to enforce it. She did her duty. Too bad the GOP congress won’t do its duty. But they think, according to one GOP member of congress that they work for the president! They most assuredly do not!

    • As the acting AG, isn’t it her duty to advise the President of her concerns with the EO? If the President moves forward with the EO, is it ethical or even honorable to tell an entire federal agency to ignore an order by the President that may or may not be constitutional? She is not a judge. If she doesn’t believe it’s just to be stopping non-violent undocumented aliens from entering our country illegally, should she order the entire agency to release every one of them detained and open the border? Where do you draw the line? Shouldn’t then everyone in this country be allowed to nullify any law they deem to be unjust?

      Either we are a nation of laws or we are not. There cannot be civil order with something in between.

      • Yates could have informed the President of her concerns if the DOJ had been in the loop but they were deliberately not informed.

        From her testimony:

        CRUZ: A final, very — very brief question. In the over 200 years of the Department of Justice history, are you aware of any instance in which the Department of Justice has formally approved the legality of a policy, and three days later, the attorney general has directed the department not to follow that policy, and to defy that policy?

        YATES: I’m not. But I’m also not aware of a situation where the Office of Legal Counsel was advised not to tell the attorney general about it until after it was over.

        • So Yates was motivated by her feelings of being excluded from consultation? Does the AG serve at the pleasure of the President or the other way around? As issac (and his vaseline) would attest, being butthurt is not justification for ignoring her role in the execution of this order from the executive.

      • I’m trying to wrap my head around this Olly, so don’t take my comments as particularly “aggressive.”

        Shouldn’t then everyone in this country be allowed to nullify any law they deem to be unjust?

        I wonder if you do not err at least in your assumption that Yates can be compared to everyone. Not everyone takes an oath to uphold the constitution as the major premise of their job. Moreover, Yates was asked during her own confirmation whether or not she would disobey an order from Obama if she felt it was unconstitutional and she basically said, “yes”.

        I’m not at all sure she gets off the hook on that one because indeed she did not explicitly say that Trump’s EO was unconstitutional – but I must say (and I did say above) NOT saying something ISN’T does not strike me as at all the same thing as explicitly saying that something IS. What she DID say is, she wasn’t sure if the EO was lawful and I’m wondering (and NOT sure) if it fair to assume that means she questions the Constitutionality of it..

        I completely agree with you that she should have informed Trump of her reservations, but not necessarily that once having done so, she could ignore her oath of office not to obey what she felt might be unconstitutional (as seen by her compass, not ours, of course).

        Finally, I sometimes get the impression that when people say “rule of law”, what they mean is obedience to the President. I’m aware that making this statement may be entirely unfair and inapplicable to you. It’s an impression, not at all a conviction, but just in general the two often seem erroneously conflated. Even IF the two may be one and the same for the general public (and I would argue that’s tyranny), they definitely are not for the Attorney General who can be fired by the President but whose obedience is explicitly to the Constitution.

        • Thank you Bettykath, I don’t consider that to be aggressive at all. It’s reasonable to ask these questions and try to determine where the truth lies.

          I know my view of the law is not a popular one among many here that support the use of the law not as a means to just ends, but rather as a means to utilitarian ends. We have 3 main divisions in this country and only 1 of them regards the rule of law with a non-ideological purpose. No one, no party and no cause is superior to the law. I’m reading a very good book right now by Bloom titled “Against Empathy”. Empathy is crushing the rule of law and the American people are quite ignorant to how empathy is being used to manipulate them.

          • Olly, The whole purpose of the left’s “living constitution” is to interpret the law via empathy. The words of the law, to them, mean nothing, if those words don’t favor empathy. That’s why they have such a problem with Justice Gorsuch’s ruling in the case of the trucker abandoning his truck during the winter storm. – Sure, we all agree that the law, as written, sucks as applied to that trucker. What thy can’t wrap their heads around is that the law is not always good, or right, or just, in all circumstances. And instead of waiting for the Legislature to change the law in each individual case, they want judges to do it. In other words, they want the courts to be the ultimate lawmakers in this country. – For now.

            • As a general proposition, that’s horse hockey. If that were true, among other things, there’d be no substantive due process whatsoever (from Dred Scott to Lochner to Griswold to Obergefell), and only very limited procedural due process. Both sides of the Supreme Court, however, believe there is such a thing as substantive due process when it agrees with their personal interpretation of the Constitution, from Justice Taney to the Four Horseman of Reaction to Justices Thomas, Alito, and Gorsuch.

          • We fought a civil war with sympathy rather than empathy “crushing the rule of law,” and we have selective prosecution as a sympathy equivalent. No cop has ever let you go with just a warning when you should have received a ticket for running a red light or having a non-functioning break light, or for speeding or jaywalking? Is there some political ideology other than sympathy for giving a warning on the street for “crushing the rule of law,” whatever that may mean?

            On the other hand, when a prosecution does takes place, nullification of law by a jury sworn to uphold is not selective prosecution. Jury nullification is absolutely inappropriate.

            • Steve, What you just pointed out is “prosecutorial discretion”. It’s an Executive Department function. Not a function of the Judiciary. We give judges plenty of discretionary powers, However, when the law (as written) is being prosecuted, the role of the judge is not to change the law. Not even bad law.

              The judge is the referee. The 10-second shot clock will always count 10 seconds off the clock. The fact that a player is limping after a fall does not extend the 10-second shot clock. – Even though empathy would suggest that he be given more time due to injury.

              • “We give judges plenty of discretionary powers, However, when the law (as written) is being prosecuted, the role of the judge is not to change the law. Not even bad law.”

                Jack, you’re implying there can never be more than one way to interpret the law, because it has only one reasonable interpretation. That’s untrue much of the time, and that’s why we have several appellate levels to decipher it and mistakes made at the trial level. No?

                • Steve, I think you know what I am saying, and it has absolutely nothing to do with statutory interpretation (or, at least, the rules of statutory interpretation).

                  I’ll give you an example: The Fourteenth Amendment did not give black men or women (of any color) the right to vote. It did not give a woman the right to practice law in Illinois. Yet, it somehow gave same-sex couples the right to marry. – Now, please demonstrate how the Fourteenth Amendment changed to grant rights that would not have been seen as rights in the years shortly after adopting the Amendment. Please use the same rationale employed by the Court in Obergefell and compare it to Minor v Happersett, and in Bradwell v. Illinois. As you will see, the Amendment had already been interpreted. The new “right” created by the Court was made from whole cloth.

                  • These fundamental rights are not “new” and “made from whole cloth.” Where did you get that idea? They’re at least as old as those to which the 9th Amendment refers. (I ask you: which are those?) They are latent, unfortunately, and waiting to be acknowledged, just as the right to marry without the king retaining a right to his nuptial benediction isn’t new.

                    Fascinating subject matter, by the way, Jack.

                    • The matter had been decided by the Court over 100 years ago. There’s a reason you made no attempt to square the right to marry with the right to vote.. You could not, and neither could the Court. So, instead of even acknowledging that suffrage is akin to marriage, they created a new right without having to deal with previous holdings regarding the 14th.

                    • “There’s a reason you made no attempt to square the right to marry with the right to vote . . .” Yeah, it’s because I didn’t have time to read those cases. And your answer to my question as to what rights lay dormant in the 9th Amendment?

                      Ancient Phoenician women held the right to vote:

                      “Economy is inclusive and works for everyone and not a select few. No one can profit at the expense of the community as a whole. Everyone profits from business and their contribution in organizations. Everyone is valued, acknowledged and rewarded.

                      “The Phoenicians developed very innovative policies to encourage gender neutral cultural relationships that encouraged 1) income and gender equality and 2) sharing of their wealth through their joint economic ventures.

                      “Women were treated as equal partners and contributors regardless of their marital or child bearing status. They were encouraged to participate fully in every aspect of society and were not penalized for being a mother. Motherhood was highly respected along with family, freedom and faith. Women and men besides families were compensated equitably for their contribution to the trade venture. If you contributed ‘more’, your compensation was higher. Valuing women’s role in Phoenicia was a cultural norm. . . .”

                      http://www.phoenicianblueprint.com/Blog/Womens-Equality–Lessons-Learned-from-the-Phoenicians/223/

                      Is our civilized nation too advanced to recognize that suffrage is and has always been a natural right?

                    • “So, instead of even acknowledging that suffrage is akin to marriage, they created a new right without having to deal with previous holdings regarding the 14th.”

                      Are you a Second Amendment advocate or for that matter an advocate of selective incorporation of certain Amendments into the 14th Amendment? Where in the federal Constitution does it reflect any of the Amendments apply to the States or are selectively incorporated into the 14th Amendment other than by judicial fiat so that they now apply as limitations to state-government action? Where does it say a state government must abide by the Second Amendment which clearly only applied to the federal government when it was ratified?

                      By your reasoning, the Court created a “new” right against state infringement by some twisted view of the 14th Amendment? Or, do you believe the right to keep and bear arms, freedom of speech, the press, and of assembly are left to state governments’ plenary power to restrain under our federal Constitution?

                      “Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. . . .”

                      https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

                      The following portions of the Bill of Rights have been incorporated into the 14th Amendment and limit all state governments’ actions based on the federal Constitution’s limitations on the federal government’s actions:

                      Freedom of Speech, Gitlow v. New York (1925)
                      Freedom of the Press, Near v. Minnesota (1931)
                      Right to Counsel in Capital Cases, Powell v. Alabama (1932)
                      Freedom of Assembly, DeJonge v. Oregon (1937)
                      Free Exercise of Religion, Cantwell v. Connecticut (1940)
                      No Established National Religion, Everson v. Board of Ed. (1947)
                      Ban on Unreasonable Search and Seizure, Wolf v. Colorado (1949)
                      No Evidence from Illegal Searches, Mapp v. Ohio (1961)
                      No Cruel and Unusual Punishment, Robinson v. California (1962)
                      Right to Counsel in all Felony Cases, Gideon v. Wainwright (1963)
                      No Self-Incrimination, Malloy v. Hogan (1964)
                      Right to Confront Adverse Witnesses, Pointer v.Texas (1965)
                      Right to Impartial Jury, Parker v. Gladden (1966)
                      Right to Obtain Defense Witnesses, Washington v. Texas (1967)
                      Right to Speedy Trial, Klopfer v. North Carolina (1967)
                      No Double Jeopardy, Benton v. Maryland (1968)
                      Right to Counsel for Imprisonable Misdemeanors, Argersinger v. Hamlin (1972)
                      Right to Notice of Accusation, Rabe v. Washington (1972)
                      Right to keep and bear arms. McDonald v. City of Chicago (2010)

                      http://www.twyman-whitney.com/apgovpol/landmarkcases2006.htm

                    • Steve,
                      The following is an argument regarding suffrage by Bastiat that addresses why universal suffrage is not a natural right. It is of course a mid-19th century explanation but the principle remains the same:

                      “Universal suffrage means, then, universal suffrage for those who are capable. But there remains this question of fact: Who is capable? Are minors, females, insane persons, and persons who have committed certain major crimes the only ones to be determined incapable?

                      A closer examination of the subject shows us the motive which causes the right of suffrage to be based upon the supposition of incapacity. The motive is that the elector or voter does not exercise this right for himself alone, but for everybody. The most extended elective system and the most restricted elective system are alike in this respect. They differ only in respect to what constitutes incapacity. It is not a difference of principle, but merely a difference of degree. If, as the republicans of our present-day Greek and Roman schools of thought pretend, the right of suffrage arrives with one’s birth, it would be an injustice for adults to prevent women and children from voting. Why are they prevented? Because they are presumed to be incapable. And why is incapacity a motive for exclusion? Because it is not the voter alone who suffers the consequences of his vote; because each vote touches and affects everyone in the entire community; because the people in the community have a right to demand some safeguards concerning the acts upon which their welfare and existence depend.

                      I know what might be said in answer to this; what the objections might be. But this is not the place to exhaust a controversy of this nature. I wish merely to observe here that this controversy over universal suffrage (as well as most other political questions) which agitates, excites, and overthrows nations, would lose nearly all of its importance if the law had always been what it ought to be. In fact, if law were restricted to protecting all persons, all liberties, and all properties; if law were nothing more than the organized combination of the individual’s right to self defense; if law were the obstacle, the check, the punisher of all oppression and plunder — is it likely that we citizens would then argue much about the extent of the franchise?

                      Under these circumstances, is it likely that the extent of the right to vote would endanger that supreme good, the public peace? Is it likely that the excluded classes would refuse to peaceably await the coming of their right to vote? Is it likely that those who had the right to vote would jealously defend their privilege? If the law were confined to its proper functions, everyone’s interest in the law would be the same. Is it not clear that, under these circumstances, those who voted could not inconvenience those who did not vote?”

            • Steve – you think jury nullification is wrong, but do you think it is right for a judge to over-rule a jury verdict? Isn’t this jury nullification, too?

              • In a civil suit, for instance, vacating a verdict of a jury or a judge if there is no jury is broadly speaking only appropriate if the trier of fact or the judge applied the wrong law in obtaining that verdict, or there were facts somehow obtained by the trier of fact without being admitted into evidence, or some other issue arises which would make the verdict contrary to the interests of justice (e.g., an irregularity in the trial leading to a party getting a unfair trial, jury misconduct, newly discovered evidence, excessive damages, insufficiency of the evidence, abuse of the judge’s discretion, etc.

                Vacating a verdict is technically I suppose a nullification of a jury’s decision, but it isn’t jury nullification as that term is generally applied because the latter is a verdict resulting from the jury’s intention to circumvent the law. Why wouldn’t the trial judge’s set-aside of a verdict or an appellate court’s reversal of it be proper when the jury’s verdict results from a miscarriage of justice?

                • Steve Groen – then what difference does it make when a jury sees jury nullification to stop a miscarriage of justice?

                  • A jury is not legally permitted to nullify current law and is sworn to uphold it, whether they think it’s valid law or not, but the judge is legally entitled to avoid the verdict under certain circumstances by statute.

                    • Jury nullification is a double-edged sword. In one respect it can serve as the last line of defense of an accused when the state brings up a completely unjust prosecution against a citizen and the other was shown repeatedly in some controversial cases in the South where KKK members were acquitted by state courts due to racial bias against the victim.

                      I happen to support in many respects the former. There can be cases, hopefully we will not arrive at such a situation, where the gov’t becomes increasingly able to manipulate justice toward the whims of politicians and craft laws and procedures that stifle any semblance of fairness or review. A prosecutor can bring charges against a person that might be based upon probable case, but it can be apparent that such measures are a witch hunt. An example would be where the county prosecutor does not like a particular individual, and in response charges them at every opportunity by going after infractions that nearly everyone commits, such as charging a person for five counts of jaywalking for walking across the street to their mailbox everyday. In examples such as this, the jury might be required to find the person guilty based on the evidence, but the actions brought on by this prosecutor were so outrageous and unjust, that the jury tossed the case out the window.

                      Anecdotally, I know of one case (I wasn’t involved with) where a completely ridiculous vehicular homicide case was brought against a person who was involved in an accident but there was no credible evidence that it involved a crime. Months after the accident, it came out that the driver was a relative of someone who was running against the current sheriff for an upcoming election. Suddenly, he was arrested for vehicular homicide and the sheriff’s office made a tremendously slanted investigation to essentially frame the defendant.

                      I learned from someone who served on the jury (through a third party) that as soon as the jurors sat down at the table to deliberate the case, one of the men held his hand up and asked, “How many of you think this is bullsh-t?” They all raised their hands. The only deliberation that occurred concerned whether they should wait until after lunch to announce their verdict.

                      Knowing that case as well as I did, it was a poster child for nullification.

                    • Steve Groen – the jury is able to decide whether the person is guilty or not. Juries misdecide cases enough that one would think that something like jury nullification wouldn’t bother you.

            • Steve,
              Correct me where I am wrong. We have laws and then we have rules (administration) established for the enforcement of the law. Those rules have discretionary provisions that allow enforcement not to exceed the intent of the law. Your examples of speeding, red lights, etc. are violations of the law and giving warnings as opposed to tickets would be examples of prosecutorial discretion. That discretion however opens up all sorts of opportunities for unequal enforcement of the law. It also leaves the citizen in the awkward position of not really knowing what violations will end up in a warning or prosecution. I believe in all cases, the discretionary enforcement of the law should apply to everyone equally, and no discretion should be permitted where it would put at risk the life, liberty or property of our citizens or residents within our borders.

              • Olly: That is certainly an equitable way to do it, and I don’t blame you for thinking like that. On many issues, I feel that way too. Oh, wait. That would be empathy.

                The problem with it is that some laws are very poorly drafted and some are simply nefariously enacted, leaving no protection to those who’ve done nothing wrong unless just being alive and trying to speak and feed and house one’s self and family is malfeasance.

                • I certainly agree that some laws are poorly drafted and absolutely that some are nefariously enacted. The question is how are we supposed to know? Empathy is a good quality but it is not a replacement for the rule of law.

                  “leaving no protection to those who’ve done nothing wrong unless just being alive and trying to speak and feed and house one’s self and family is malfeasance.”

                  That is a great example of an empathic statement intended to appeal to one’s emotions. Sounds great; who would argue against it? How about, ripping babies out of the womb alive, killing them and then selling the body parts? Only a monster would support such a practice, unless someone comes along to argue we should empathize with the mother and her reproductive rights. Empathic arguments are always made and then a law is enacted to “protect” that special interest. I’m certainly no lawyer, but isn’t the purpose of our government to secure EQUALLY the unalienable right to LIFE, LIBERTY AND THE PURSUIT OF HAPPINESS? How has our government exceeded or abused their constitutional purpose? By appealing to empathy over the rule of law.

                  • Good points all. Substantive due process and its tests for determining government overreach under that concept, however, require some appreciable amount of social-policy consideration from federal judges when determining two or more legitimate interpretations of the same law. Wouldn’t you think?

                    • Steve,
                      I do not consider social-policy considerations as a legitimate test to determine government overreach. Two “legitimate” interpretations of the same overreaching (utilitarian not constitutional) law are not legitimate. Our courts end up arguing the public good and completely whiff on whether the law should’ve been made in the first place. Precedent is then set and our actual rule of law becomes buried in this progressive overreach. Empathy has become our “rule” for law.

                    • We don’t have “social justice courts”. I don’t think chancery courts exist any longer. At least, not in the United States. I do remember New York having one a long time ago.

    • Given the ciear option of resigning in the face of the EO,I too find it curious why she insisted on staying on and,in effect,”falling on her sword”.Certainly looks like playing politics to this bumpkin.

  10. It is not about the rule of law but how you feel about the law. Yates felt the law was wrong and so no one could uphold it.

    • An EO is not a law. A law is something that is passed by Congress and signed by the President. An EO is not a law. Yates believed that the EO violated the law and the Constitution.

      From her testimony in response to Sen. Cruz:
      [Cruz quotes the law that JT considers binding]

      YATES: I would, and I am familiar with that. And I’m also familiar with an additional provision of the INA that says no person shall receive preference or be discriminated against an issuance of a visa because of race, nationality or place of birth, that I believe was promulgated after the statute that you just quoted.

      And that’s been part of the discussion with the courts, with respect to the INA, is whether this more specific statute trumps the first one that you just described.

      (CROSSTALK)

      YATES: But my concern was not an INA concern here. It, rather, was a constitutional concern, whether or not this — the executive order here violated the Constitution, specifically with the establishment clause and equal protection and due process.

      CRUZ: There is no doubt the arguments you laid out are arguments that we could expect litigants to bring, partisan litigants who disagree with the policy decision of the president.

      I would note, on January 27th, 2017, the Department of Justice issued an official legal decision, a determination by the Office of Legal Counsel, that the executive order — and I’ll quote from the opinion — “the proposed order is approved with respect to form and legality.”

      That’s a determination from OLC on January 27th that it was legal. Three days later, you determined, using your own words, that although OLC had — had opined on legality, it had not addressed whether it was, quote, “wise or just.”

      YATES: And I also, in that same directive, Senator, said that I was not convinced it was lawful. I also made the point that the office of — OLC looks purely at the face of the document and, again, makes a determination as to whether there is some set of circumstances under which some portion of that E.O. would be enforceable, would be lawful.

      They, importantly, do not look outside the face of the document. And in this particular instance, particularly where we were talking about a fundamental issue of religious freedom — not the interpretation of some arcane statute, but religious freedom — it was appropriate for us to look at the intent behind the president’s actions, and the intent is laid in and out his statements.
      ———-
      Sen. KLOBUCHAR: And then moving forward here, as was mentioned by Senator Durbin, this order was (inaudible) after a lawsuit from the State of Washington and Minnesota, the court basically challenged — the constitutionality of the order. The order is now taken effect, but what I want to get to right now is the fact that the administration then withdrew its request for an appeal of the court ruling blocking implementation of the same order and then they changed the order that you would not implement.

      YATES: Right. And there were a number of important distinctions between travel ban one and travel ban two. At the time I had to make my decision for example, the executive order still applied to green card holders, lawful permanent residents and those who had visas.

      There were a number of other distinctions as well.

      • I agree that an EO is not “a law”, however it is an order given from the President to his subordinates that directs them “how” to execute the laws passed by Congress. Yates made the decision to defy the order under her interpretation that the order was not justifiable under the law. The fact this was an order that at worst temporarily infringed the travel “rights” of innocent people to this country seems to cloud the alternative worst case scenario that if not enforced would allow hostile people entry into our country.

        Which of the two primary actors in this scenario would you consider was acting with more honor to their respective oaths?

        • Olly, An EO is law. Congress creates the law, and one of the provisions of that law delegates authority to the President. It’s really no different than failing to observe the lawful order of a police officer. It is not an act of legislation, but it is law nonetheless.

  11. Here is the Oath Ms. Yates was required to take: An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

    • I would be curious Justice Holmes as to what your criteria would be to an acceptable objection as basis for Yates’ behavior, if not constitutionality. In this case, the order was found to be “not unconstitutional”. And she also agreed that it was “not unconstitutional”. Is it opinion? Personal moral code?

      Why IS her behavior acceptable? Because she has an opinion that “its right”? Seriously, I would like to know. I know that you happen to share her opinion on this particular matter but what happens (as JT pointed out) on another issue?

      And if it is personal moral code, why all the grandstanding and publicity?

      • Justice Holmes, Carol, and Hepsi,…
        -I read the transcript of Ms. Yates most recent Senate testimony.
        Her position NOW is that the Trump Executive Order she refused to defend is unconstitutional.
        Her stated position in January was that the EO was not ” wise or just”, but I saw nothing at that point where she said it was unconstitutional.
        I think that’s what prompted the question “Who appointed you to the Supreme Court?”.
        Acting AG Yates presented one set of objections to the EO, but “Justice Sally Yates” now declares that the EO is unconstitution.

  12. To those lawyers who have raised serious questions I suggest that Ms. Yates had an obligation to the Constitution, you know that document that she swore to uphold. The president is NOT her client! She had a duty to refuse to enforce an order that she felt was unlawful and violated the Constitution.. during her er confirmation hearings she was asked, by a Republican if she would say NO to a presidential order (by Obama) if it was unlawful. She said yes. She was right. The GOP was fine with that but when she said NO to Trump all of a sudden they had a problem with it.

    She followed her oath. That is something the GOP Congress should be doing but I won’t hold my breath.

    • Did you bother to read the column? This is what it says” 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 is a grandstanding poseur.

    • I’m not interested in splitting hairs, but has Yates explicitly stated anywhere that she felt the EO wasConstitutional? Can something be unlawful and constitutional or can such only be unlawful and not constitutional tested? Meaning, could she not be in doubt, particularly given she was not sure the EO was lawful? Or is mere doubt, even strong doubt, explicitly stated in her contract or job description as insufficient to take the steps to (by her compass) protect the Constitution that she did?

      I can see the argument that such a move, not following a Presidential order with only doubt as to the constitutionality of such order, is legitimately subject to criticism. But can it be implied she felt the EO was constitutional because she didn’t say it was unconstitutional?

    • “…she felt was unlawful and violated the Constitution.” Shouldn’t she support her actions with citations then to the Constitution and relevant law rather than “.. she was not convinced that the order was “wise or just” or was “lawful.”|”? Certainly her opinions would inform her response but she really needs to base her actions on actual law, doesn’t she?

  13. I suspect that Ms Yates had already decided she didn’t want to work for the Trump Administration. Since she was going to leave the DOJ anyway, she decided to openly challenge the President’s authority, which she knew he wouldn’t tolerate, and thereby make herself a darling of the left. It was pure, arrogant grandstanding on her part. Unprofessional, to be sure, but professionalism has unfortunately taken a backseat to narcissism.

    • Yes that was my thought at the time. And, anyone pls correct me if wrong, I read at the time that she (the departmental attys) had spent the weekend defending the EO. But on Monday, as I see it, she decided to have a run, a long run hopefully I am thinking, as a heroine of the Dem party.

    • TIN…
      -Yates gets extra points for martydom. She was not about to simply resign and pass up those extra points, so she decided to force a confrontation that would inevitably get her fired.

        • Marco….
          Because I follow the media and I’ve seen how they “played” the Yates firing.
          A similar situation is now playing out with the Comey dismissal, with a former” pariah to all” now transformed into a noble victim.
          Admittedly, the manner of Comey’s termination….blindsiding him like that……helps promote the “martyr image”.

          • I agree tnash, how he fired Comey was inappropriate. Unless waiting for him to return to D.C. posed some kind of risk for his agency, this should have been done in a far more respectful manner.

            On another note, all this talk about Russian collusion with the Trump campaign doesn’t seem to explain what the collusion might have been. What could Trump’s team and the Russians have possibly done to affect the election? Let’s assume the Russians hacked Podesta’s emails and the DNC (in collusion with the Trump team) and gave that to Wikileaks. How much difference is there with that and an anonymous reporter that uncovered the same information with the Trump team involved? It doesn’t invalidate the information. It seems to be the same tactic used against those that produced the undercover PP abortion videos. Are we supposed to object to the method of gathering information and ignore the information itself?

            We’ve become so polarized that reason and logic seem to have been discarded in favor of irrational debate.

            • Hi Olly,…
              I just replied to your comment…..thanks to the WordPress thicket, sometimes things post, sometimes they don’t,
              Recently, it’s like a lottery.
              I may try to retype my reply to you and try to repost, but I can’t do it right now.

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