![]() No doubt she would have considered it impertinent, and inappropriate, to make such a bald accusation. To be sure, she did not come right out and accuse the President of what everyone knows to be true–namely, that he was motivated by religious discrimination. Well, in that’s so, I think it’s fairly evident that that is, indeed, precisely what Yates concluded–namely, that the Executive Order is unconstitutional. (Senator Sessions certainly agrees that officials such as Yates should not defend presidential initiatives that they consider unlawful-indeed, at Yates’s confirmation hearing, he insisted that the AG/DAG must not capitulate to the President in such a case.) After all-to give only the most prominent recent example-Jack and many others have, quite properly, praised John Ashcroft and James Comey for refusing to sign surveillance certifications that they considered to be unlawful in March 2004 (the infamous “hospital showdown”), notwithstanding the White House’s contrary legal judgment. Wholly apart from that pragmatic consideration–that is, even if Yates didn’t have that reason for not resigning–I assume both Jack and Ben would agree that if Yates concluded that enforcement of the Executive Order would be unlawful, then it could be appropriate for her not to defend it in litigation, notwithstanding the fact that the President concluded otherwise. Attorney for the District of Columbia, Channing Phillips.) By objecting but not resigning, Yates ensured that the President would immediately appoint someone to be Acting AG who would do his bidding. (I’m not sure exactly who that new Acting AG would have been under the prescribed order of succession-perhaps it would have been Lee Lofthus, a career officer who is the Assistant AG for Administration, or the U.S. ![]() Indeed, if Matt Apuzzo’s story today is accurate, Yates did consider resigning, and she chose not to do so for a very pragmatic reason: so that the official who would automatically succeed her as Acting AG would not have had to confront the same decision she did about the E.O., just days before a new Attorney General takes office. If that’s the case, what’s the harm in Yates not resigning? ![]() Therefore, either way, lawyers in the Department of Justice will, in fact, defend the legality of actions DHS takes to implement the Executive Order. She also knew that, in short order, the President would ensure that the Department is run by someone (as it turns out, that’s Dana Boente, presumably followed by Senator Sessions) who does think the Order is lawful and defensible. Yates knew full well that she would not be the Acting AG today (or within a few days, at latest), whether by way of resignation or removal. I don’t think that’s right.įor one thing, it’s not clear why they think the particular form of Yates’s dissent is so important. in court, they insist, she ought to have resigned. Instead of announcing that she would refuse to defend the E.O. My friends Jack Goldsmith and Ben Wittes take issue with Yates’s decision. As everyone knows by now, Deputy Attorney General Sally Yates determined yesterday that, so long as she was 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.” Not surprisingly, President Trump promptly removed her from office, and replaced her with an official who is willing to defend the Order.
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