[sangnoir]

Here's a prescient clip from Sally Yates' nomination (March 2014). Reality certainly loves irony because the Senator asking the question was Jeff Sessions.

I made a quick and dirty transcription of the interesting bits, but I encourage you to view the whole thing[1].

Sen. Jeff Sessions: Do you think the Attorney General has a duty to say no to the president when asked to do something that is improper? ...

Sally Yates: I believe the AG and the deputy AG have an obligation to follow the law and the constitution, and to give their independent legal advice to the president

1. https://youtu.be/sXDt3WA07zc

[cookiecaper]

Sure, that's all normal. Note that she says it's their obligation to give legal advice to the president and follow the law and Constitution. The Constitution provides that the president is the chief executive and oversees the DoJ. Right now, the minor potential legal arguments that have been put forth by commentators (not Ms. Yates herself; she provides no legal argument or justification) do not rise to the level of constitutional violations or anything that may imperil her oath of office.

Why is Ms. Yates comfortable allowing the judiciary to make its decisions on Mr. Obama's illegal EOs but not comfortable allowing it to do so on Mr. Trump's EOs? There's a reason we have a legal system with strict procedures and rules regarding argumentation, standards of evidence, etc. In ordinary conditions, a fair decision cannot be rendered by an attorney sitting alone in a room, and, barring a blatant constitutional violation, it's improper to redirect the resources of the DoJ based on such decisions.

[pm90]

> Why is Ms. Yates comfortable allowing the judiciary to make its decisions on Mr. Obama's illegal EOs but not comfortable allowing it to do so on Mr. Trump's EOs?

Firstly, Obama's EO's were not "illegal": they were well thought out and released only after much consultation with the DOJ to precisely ensure that such a situation does not occur. Now, we have a week-old President with no political experience rapidly firing off EO's without consulting the DOJ. And the EO's themselves seem to be unconstitutional and disrupting the lives of many people.

But the answer to your question is: she is more comfortable because in her opinion as a lawyer, the Immigration ban is unconstitutional and cannot be enforced. She voiced that opinion knowing that she had the possibility of being fired. I don't understand why you keep going off on tangents (Obama passed illegal EO's!) instead of simply accepting the fact, the fact that Ms. Yates did precisely what she had sworn to do: uphold the constitution.

> In ordinary conditions, a fair decision cannot be rendered by an attorney sitting alone in a room, and, barring a blatant constitutional violation, it's improper to redirect the resources of the DoJ based on such decisions.

Precisely. In her opinion, this IS a blatant constitutional violation.

[cookiecaper]

>Firstly, Obama's EO's were not "illegal": they were well thought out and released only after much consultation with the DOJ to precisely ensure that such a situation does not occur.

They were illegal according to the 5th Circuit Court of Appeals and the Supreme Court of the United States. This has already been adjudicated. Look up Texas et al v. United States (from 2016).

>Now, we have a week-old President with no political experience rapidly firing off EO's without consulting the DOJ.

Is there a source for the claim that Mr. Trump did not consult the DoJ before issuing this EO? I haven't seen it if so. Regardless of whether Trump sought advice directly from the DoJ or not, Trump advisors have independently stated that the Order was drafted by attorneys and was the product of serious legal research and consultation (though not necessarily with or without attorneys employed by the DoJ). What's your argument here? Trump didn't use the right lawyers to help him draw up the EO? Is there some reason the president is required to use specific lawyers to assist him in drafting orders?

>And the EO's themselves seem to be unconstitutional and disrupting the lives of many people.

No, no one has presented a credible constitutional argument against the EO. The only legal arguments I've seen are related specifically to statutory, not constitutional, restrictions.

Ms. Yates herself makes no legal argument, either constitutional, procedural, or statutory. Her letter [0] contains 0 citations.

That an order is disruptive to some people has nothing to do with its legality.

>But the answer to your question is: she is more comfortable because in her opinion as a lawyer, the Immigration ban is unconstitutional and cannot be enforced.

She is, of course, more than welcome to her personal opinions. However, it's extremely unprofessional to allow political proclivities to disrupt one's work.

If she could not in good conscience discharge the responsibilities of the AG, which include supporting the chief executive, the morally consistent option would've been resignation. Like the rest of the government, the DoJ is an institution that belongs to the American people, and leading it comes with an established, non-malleable set of roles and responsibilities, which include the responsibility to advise and represent the executive branch. Unless doing that would require Ms. Yates to violate her oath of office (and she doesn't claim it does), defiance is not justified.

>I don't understand why you keep going off on tangents (Obama passed illegal EO's!) instead of simply accepting the fact

It's not a tangent. Ms. Yates apparently feels the president does not have the legal authority to make orders of this nature when President Trump is in office, but that he does have the authority when President Obama is in office.

>the fact that Ms. Yates did precisely what she had sworn to do: uphold the constitution.

No, she didn't. She doesn't claim that she did. She makes no constitutional argument in support of defying the president, which she would surely be morally obligated to make if there was a credible one. She makes no legal argument of any type.

She merely states that she believes it's her responsibility to ensure the DoJ always does what's right, and apparently to her, "what's right" is based solely on her opinion and not the will of the American people based on principles of republican-democratic governance and the constitutional mechanisms that enact it in this land.

Really she seems much better suited to the private sector, where the personal opinion of the top dog is virtually as good as law. But that's not how a free government of the people and by the people works.

>Precisely. In her opinion, this IS a blatant constitutional violation.

No, there is no evidence that she believes this. There is no credible constitutional argument floating around out there (except perhaps the argument that the president has no authority to issue any EOs at all), and Ms. Yates does not claim to have one. She does not say that her oath of office obliges her to defy the president based on the competing obligation she owes to the supreme law of the land. She does not even definitively say that she thinks the order is illegal, just that it may be (because she knows it's not within her purview to decide whether specific laws are legal or not). She then announces that she will refuse to allow the DoJ to develop arguments in support of the president's position, depriving the chief executive of legal resources that are important and necessary to representing the executive branch before the judiciary. If anything, her actions will end up only prolonging the effects of Mr. Trump's order and preventing the judiciary from promptly sewing it up if it is indeed illegal.

If the constitutional violation were blatant, the judiciary would be moving rapidly to respond and support Ms. Yates's decision. That is not occurring now because there is no such justification, only media hysterics.

The judiciary recognizes that any potential legal challenge will be non-obvious and require careful evaluation and judgment after each side is given a fair hearing and the opportunity to present their arguments according to accepted legal standards and the long-established legal processes that we've set up to handle such nuanced challenges and claims.

There is nothing here, nothing at all. You're right, she knew she would be fired and that it would set off a media firestorm. She was going to be displaced next week when Senator Sessions gets confirmed and this was a way to go out in a blaze of glory and raise her public profile, perhaps launching a career as a politician in a liberal district. But I know of no legitimate argument that her conduct was anything but self-serving.

[0] https://www.nytimes.com/interactive/2017/01/30/us/document-L...

[nkurz]

If she could not in good conscience discharge the responsibilities of the AG, which include supporting the chief executive, the morally consistent option would've been resignation.

I agree with most of what you say, but why do you feel the actions she took were morally inconsistent? What is the moral imperative to quietly resign rather than to call attention to an issue you feel merits greater public scrutiny? While you can accuse her of having the wrong moral framework, I don't see how you can conclude that her behavior is inconsistent with the framework she believes in.

[zardeh]

>It's not a tangent. Ms. Yates apparently feels the president does not have the legal authority to make orders of this nature when President Trump is in office, but that he does have the authority when President Obama is in office.

There's a very simple answer to this:

She did not believe that the Obama EO was unconstitutional, whereas she believed that this one was. Then, everything makes sense. You can rant about how "there's no credible argument", but I'm inclined to believe an Attourney General over someone on an internet forum with regards to the law.

So tell me this: what should she have done if she believed the EO, as applied, would be unconstitutional?

Edit: also the judiciary is moving swiftly, in the past two days, the EO has been practically gutted in the courts.

[nkurz]

So tell me this: what should she have done if she believed the EO, as applied, would be unconstitutional?

You ask a reasonable hypothetical, but I don't think it matches the circumstances here. If Yates felt that she could not in good faith enforce the order because it was unconstitutional, I think she would have been very clear about this in her memo: https://www.nytimes.com/interactive/2017/01/30/us/document-L...

Instead, while not ruling out unconstitutionality, she pointed to the "broader" responsibility she feels the leader of the Department of Justice should have. I thought she said quite clearly (for a lawyer) that although she was uncertain whether the order was legal, her refusal was because she judged the order to be unjust and unwise. Personally, I greatly respect her differentiation between "constitutional" and "right".

[pm90]

> Personally, I greatly respect her differentiation between "constitutional" and "right".

Very good point. I hate that it can be taken as taking a political stand whereas it appears to be more of a humanitarian one.