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by nikdaheratik
3431 days ago
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The Department of Justice's job is not to "support the chief executive". In fact, Yate's was asked directly by then Senator, and current Attorney General nominee, Sessions at her confirmation hearing whether she thought "the attorney general has the responsibility to say no to the President if he asks for something that's improper?" She did exactly what she said she would and what Congress asked her to do. In this case, I'm going to go with someone who has been in the job for years over the self-serving justifications of an administration that hasn't been in office for two weeks. |
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No, among the DoJ's jobs, the task to represent the USG before the judiciary is literally and explicitly given.
There's a special role in the DoJ dedicated to representing the government before the Supreme Court (Solicitor General), but other employees of the DoJ represent the executive branch before other courts.
See Executive Order 6166 (from FDR) [0], Section 5, which states in part "the functions of prosecuting in the courts of the United States claims and demands by, and offsenses against, the Government of the United States, and of defending claims and demands against the Government [...] are transferred to the Department of Justice."
From my reading, the act of Congress that created the Department of Justice in 1870 [1] had a similar purpose, and FDR's order was primarily to remove ambiguity and centralize, not to substantially change the DoJ's function. But I'm neither a lawyer nor a legal historian, so I could definitely be wrong about that.
In any case, yes, the thing that former acting AG Yates did does directly interfere with the DoJ's actual and real legal obligations to represent the executive branch. She instructed all DoJ attorneys to stop preparing/presenting legal defenses for Mr. Trump's Executive Order.
My reading of Sessions' line of questioning is a "Do you think you'd be able to function in a scenario when you need to tell the President that he is wrong", not "Are you prepared to assume for yourself the functions of the judiciary to satisfy your personal, ethereal sense of justice when a legal challenge against the president's orders is filed?"
[0] https://www.archives.gov/federal-register/codification/execu... [1] http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=01...