Posted by on January 30, 2017 10:45 pm
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Update: President Trump responds

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As we detailed earlier, in what those with a flair for the dramatic might be allowed to call “mutiny”, Deputy Attorney General Sally Yates, who is the current acting Attorney General, has given orders to Justice Department lawyers not to defend Trump’s executive order.


Her just released statement is below:

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.

While it is clear that Yates is making a purely political statement, her glaring insubordination to the Trump administration will take on a largely symbolic hue, and may be imitated by various other government agencies which still have interim or permanent democratic leadership, as is the case with every instance of political “mutiny.”

As The New York Times notes, Mr. Trump has the authority to fire Ms. Yates, but as the top Senate-confirmed official at the Justice Department, she is the only one authorized to sign foreign surveillance warrants, an essential function at the department.

That said, Donald Trump’s response, once he realizes he may have a mini mutiny on his hands, should be interesting.

Trump aide (and reported architect of Trump’s immigration executive order) Stephen Miller explains “this is further demonstration of how politicized our legal system has become…”

And here is the authority that the president has to make his decision.

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