This post is composed mainly of transcript excerpts rather than editorial comments. Texans should know who their United States Senators are—and what they stand for. Although they are licensed attorneys (one a former Texas Supreme Court justice and the other a former U.S. Supreme Court clerk), Senators John Cornyn and Ted Cruz were (or should have been) thoroughly embarrassed from their exchanges with Ms. Sally Yates, a longtime Justice Department professional, during their efforts to sully her motives in declining to approve President Trump’s now-abandoned first step at a selective immigration ban. The following took place on May 8, in a Senate hearing ostensibly called to discuss the circumstances of Mike Flynn’s belated firing as National Security Adviser. Our senators waded into the immigration issue, no doubt thinking they would score some points. After all, Ms. Yates was just another DOJ attorney. Or was she?
First, the Q & A between Senator Cornyn (R-TX) and Ms. Yates:
“CORNYN: Ms. Yates, this is the first time that you’ve appeared before Congress since you left the Department of Justice, and I just wanted to ask you a question about the — your decision to refuse to defend the president’s executive order.
In the letter that you sent to Congress, you point out that the executive order itself was drafted in consultation with the Office of Legal Counsel, and you point out that the Office of Legal Counsel reviewed it to determine whether, in its view, the proposed executive order was lawful on its face and properly drafted.
Is it true that the Office of Legal Counsel did conclude it was lawful on its face and properly drafted?
YATES: Yes, they did. The office of…
CORNYN: And you overruled them?
YATES: … I did. The office of legal…
CORNYN: Did you (ph) — what — what is your authority to — to overrule the Office of Legal Counsel when it comes to a legal determination?
YATES: The Office of Legal Counsel has a narrow function, and that is to look at the face of an executive order and to determine purely on its face whether there is some set of circumstances under which at least some part of the executive order may be lawful. And importantly, they do not look beyond the face of the executive order, for example, statement that are made contemporaneously or prior to the execution of the E.O. that may bear on its intent and purpose.
That office does not look at those factors, and in determining the constitutionality of this executive order, that was an important analysis to engage in and one that I did.
CORNYN: Well, Ms. Yates, I thought the Department of Justice had a long standing tradition of defending a presidential action in court if there are reasonable arguments in its favor, regardless whether those arguments might prove to be ultimately persuasive, which of course is up to the courts to decide and not you, correct?
YATES: It is correct that often times, but not always, the civil division of the Department of Justice will defend an action of the president or an action of Congress if there is a reasonable argument to be made. But in this instance, all – all arguments have to be based on truth because we’re the Department of Justice. We’re not just a law firm, we’re the Department of Justice and the…(CROSSTALK)
CORNYN: You distinguish the truth from lawful?
YATES: Yes, because in this instance, in looking at what the intent was of the executive order, which was derived in part from an analysis of facts outside the face of the order, that is part of what led to our conclusion that it was not lawful, yes.
CORNYN: Well, Ms. Yates, you had a distinguished career for 27 years at the Department of Justice and I voted for your confirmation because I believed that you had a distinguished career. But I have to tell you that I find it enormously disappointing that you somehow vetoed the decision of the Office of Legal Counsel with regard to the lawfulness of the president’s order and decided instead that you would countermand the executive order of the president of the United States because you happen to disagree with it as a policy matter.
YATES: Well, it was…
CORNYN: I just have to say that.
YATES: I appreciate that, Senator, and let me make one thing clear. It is not purely as a policy matter. In fact, I’ll remember my confirmation hearing. In an exchange that I had with you and others of your colleagues where you specifically asked me in that hearing that if the president asked me to do something that was unlawful or unconstitutional and one of your colleagues said or even just that would reflect poorly on the Department of Justice, would I say no? And I looked at this, I made a determination that I believed that it was unlawful. I also thought that it was inconsistent with principles of the Department of Justice and I said no. And that’s what I promised you I would do and that’s what I did.
CORNYN: I don’t know how you can say that it was lawful and say that it was within your prerogative to refuse to defend it in a court of law and leave it to the court to decide.
YATES: Senator, I did not say it was lawful. I said it was unlawful.
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And now, the exchange between always-self-confident Senator Cruz (R-TX) and Ms. Yates:
CRUZ: OK. Let’s revisit the topic, Ms. Yates, that — that you and Senator Cornyn were talking about.
CRUZ: It is correct that the constitution vests the executive authority in the president?
CRUZ: And if an attorney general disagrees with a policy decision of the president — a policy decision that is lawful — does the attorney general have the authority to direct the Department of Justice to defy the president’s order?
YATES: I don’t know whether the attorney general has the authority to do that or not. But I don’t think it would be a good idea. And that’s not what I did in this case.
CRUZ: Well, are you familiar with 8 USC Section 1182?
YATES: Not off the top of my head, no.
CRUZ: Well, it — it — it is the binding statutory authority for the executive order that you refused to implement, and that led to your termination. So it — it certainly is a relevant and not a terribly obscure statute.
By the express text of the statute, it says, quote, “whenever the president finds that entry of any alien or of any class of aliens into the United States would be detrimental to the interest of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem appropriate.”
Would you agree that is broad statutory authorization?
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.
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.
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.
CRUZ: Thank you, Ms. Yates. I — I — I would note, that might be the case, if there’s reason to suspect partisanship.”
Sooooo, who schooled whom? Every Texan should think long and hard about supporting politicians who believe that Government attorneys who are sworn to uphold the law should nonetheless blindly line up to support Executive orders that they believe are not only unlawful, but violate the U.S. Constitution. We’re lucky that a Sally Yates at one time served the American people, but unlucky that she has been removed from DOJ. And we’re even more unlucky that Texas has two Senators who are blindly partisan and don’t embarrass easily. But we can do something about that in November 2018 and 2020.
Thank you Lee for this post! I am happy to see we are on the same side when it comes to this.