Yesterday President Donald Trump fired acting Attorney General Sally Yates after she refused to defend his Executive Order on immigration.
Yates served as the acting U.S. Attorney General when she was appointed by former President Barack Obama on January 20, 2017.
Yates instructed the Justice Department to ignore Trump’s order and penned a letter outlining why.
On January 27, 2017, the President signed an Executive Order regarding immigrants and refugees from certain Muslim-majority countries. The order has now been challenged in a number of jurisdictions. As the Acting Attorney General, it is my ultimate responsibility to determine the position of the Department of Justice in these actions.
My role is different from that of the Office of Legal Counsel (OLC), which, through administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted. Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just.
Similarly, in litigation, DOJ Civil Division lawyers are charged with advancing reasonable legal arguments that can be made supporting an Executive Order. But my role as leader of this institution is different and broader. My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.
Consequently, for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.
Journalists and pundits from both the Washington Post and NY Times found Yates’ letter and explanation lacking.
“Yates does not claim that she cannot defend the executive order because it is unconstitutional or because the Justice Department would be unable to offer good-faith arguments in defense of its legality. To the contrary, Yates claims she is ordering the Justice Department not to defend the executive order because it is not “wise or just.” This is quite significant. I am not aware of any instance in which the Justice Department has refused to defend a presumptively lawful executive action on this basis.” – Washington Post
The NY Times pointed out that the Justice Department’s legal counsel had signed off on the order’s legality, which leaves Yates’ letter toothless:
“The Justice Department’s Office of Legal Counsel had reviewed the order and signed off on its legality. But Ms. Yates and her staff lawyers believed that the department had to consider the intent of the order, which she said appeared designed to single out people based on religion.” – NY Times
In fact, the Executive Order does not single out persons based on religion. It does, however, point to a list of ‘Countries of Concern’ that were included in changes to the Visa Waiver program.
This list was created and implemented over a six month period by former President Barack Obama. The original countries on the list were Iran, Iraq, Sudan or Syria. The Visa Waiver changes became part of the Omnibus Appropriations Act of 2016 and former President Obama signed it into law on December 18, 2015.
Almost a year ago, in February 2016, The Department of Homeland Security announced that, “it is continuing its implementation of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 with the addition of Libya, Somalia, and Yemen as three countries of concern, limiting Visa Waiver Program travel for certain individuals who have traveled to these countries.”
The February 2016 extension of the countries of concern included Libya, Somalia, and Yemen. While all of these countries are majority Muslim, the Waiver program changes does not mention religion. President Trump’s Executive Order mentions religion a single time and it is in reference to the, “persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.”
The White House issued at statement on the firing and moved quickly to replace Yates, appointing Dana Boente to the post.
Statement on the Appointment of Dana Boente as Acting Attorney General
The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. This order was approved as to form and legality by the Department of Justice Office of Legal Counsel.
Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration.
It is time to get serious about protecting our country. Calling for tougher vetting for individuals travelling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country.
Tonight, President Trump relieved Ms. Yates of her duties and subsequently named Dana Boente, U.S. Attorney for the Eastern District of Virginia, to serve as Acting Attorney General until Senator Jeff Sessions is finally confirmed by the Senate, where he is being wrongly held up by Democrat senators for strictly political reasons.
“I am honored to serve President Trump in this role until Senator Sessions is confirmed. I will defend and enforce the laws of our country to ensure that our people and our nation are protected,” said Dana Boente, Acting Attorney General.
White House Press Secretary Sean Spicer tweeted out announcement:
.@POTUS has named Dana Boente, US Attorney for the Eastern District of VA as Acting Attorney General. Sally Yates has been relieved.
— Sean Spicer (@PressSec) January 31, 2017
Neither group filed a suit when former President Obama instituted the restrictions on Iran, Iraq, Sudan or Syria nor when the restrictions were extended to Libya, Somalia, and Yemen.