Yates Won’t Defend Travel Ban
Anderson: Thanks very much. We should point out President Trump just tweeted, and I quote, “The Democrats are delaying my cabinet picks for purely political reasons. They have nothing going but to obstruct. Now have an Obama A.G.” Let’s bring in some legal expertise. Joining us is senior legal analyst, Laura Coates, a former federal prosecutor. Also, constitutional attorney, Page Pate, and Harvard’s Alan Dershowitz. Professor Dershowitz, what do you make of the acting Attorney General’s decision, and how does this actually play out?
Professor Dershowitz: Well, she’s a terrific public servant with a great reputation, but she’s made a serious mistake here. She’s responded to politics with politics. It’s so easy for somebody who is the outgoing acting Attorney General to stand up and be a hero against the elected president. This is a very difficult nuanced question. Some of the executive order is probably unconstitutional as it applies to green card holders. Some of it may be in violation of the statute that prohibits visas from being denied on religious grounds. Some of it may be constitutional as it applies to people who haven’t ever been in the country and are trying to visit. What was needed was a nuanced, calibrated, legal approach instead of a kind of knee-jerk statement, “I’m not gonna enforce it at all.” The president has the right to have a lawyer defend his actions in court. And if she won’t do it, the courts will probably appoint somebody else to do it. So I think it’s a little bit of politics versus politics. She could have done a much, much better job if she had responded to the very, very badly crafted order, something I disagree…the executive order I fundamentally disagree with. But if she had responded to it in a more lawyer-like, careful, nuanced way, she would have had a bigger impact. I think she played into the hands of Donald Trump by doing what she did.
Anderson: So, Professor Dershowitz, what are Donald Trump’s options here? I mean, the Justice Department does ultimately answer to him as part of the executive branch.
Professor Dershowitz: Well, it would be a mistake for him to fire her. That would play, again, the political card. I think what he should do is arrange to have another lawyer defend the actions. I heard earlier that maybe the legal counsel’s office of the Justice Department might have had a somewhat different view of this. I think that he should respond…if he’s smart, he should respond in a more nuanced way than she responded and take the high ground. It’s hard because this is such a bad policy implemented in such a terrible way, but we shouldn’t confuse a bad policy with either an unconstitutional policy or an unlawful policy. Something can be very bad and still be legal. And it’s not the job of the Justice Department to do to quote Sally Yates, what is right. It’s to do what is lawful. That’s her job, not to do what is right.
Anderson: Laura, when the Attorney General, in this case, the acting Attorney General, gives a directive like this, are all federal prosecutors bound to follow it full stop or is there wiggle room? Can they make up their own minds?
Laura: Well, they are bound to follow her. She is their…essentially their commander in chief. But I have to say, I disagree to extent here with Mr. Dershowitz to what she’s saying, because remember, the Justice Department does have a role and that is also to preserve the credibility of the government in making any arguments in front of the courts. And one of the responsibilities of the DOJ is to ensure that it has that credibility going forward and that they have the backing to be able to say, to walk into any court, that what they’re defending and what they’re actively trying to enforce is a lawful, completely lawful act. And here, I think what she’s doing is not just making a political statement. What she’s doing is saying, “Because of the ambiguity in this executive order and because there are portions of it at least that may defy not only the Constitution, perhaps the Establishment Clause, perhaps the really not to discriminate against people for national origin, we cannot make a straight-faced argument in totality in a way that preserves the DOJ’s credibility going forward.” It’s a smart decision.
Anderson: Sorry, but don’t lawyers all the time make arguments based on what their clients believe, not necessarily what their personal beliefs are? Isn’t that how the legal system works?
Laura: Well, you know, that is the pessimistic view, of course, Anderson, of what lawyers do. But it’s true, they do make arguments but they have to be grounded in the law. And remember, one of the issues with this particular executive order is not just the morality portion. Forget the morality portion for a second. Legally speaking, there’s not clear guidance going forward on how to actually enforce the law and whether or not what they’re enforcing is consistent with other objectives. And namely, civil rights organizations talked about this, that we have a responsibility as DOJ attorneys not just to enforce blindly things that are unconstitutional or maybe. There is a responsibility that is higher than just trying to appease the client. And remember, the President is not the client of DOJ, the people are.
Anderson: Page, I understand you knew the acting Attorney General when she was a U.S. attorney in Atlanta. What can you tell us about her?
Page: I’ve known her for a long time, and the first thing that you need to know about Sally Yates is that she is not political. She’s been a career prosecutor for decades. She was an Assistant United States Attorney here in Atlanta. She became the number two in this office under both Republican and Democratic United States attorneys. And then she became deputy attorney general in Washington. She has never made decisions based on politics. She makes decisions based on what she believes is right and in consistent with the best policies of the Department of Justice. Now, I believe that this is something where we need some nuance, but nuance should have come before the executive order was ever issued. And at this point…
Professor Dershowitz: Agreed.
Page: I’m sorry?
Professor Dershowitz: I agree but she can’t respond to lack of nuance with lack of nuance. You don’t fight fire with fire.
Page: But it’s her responsibility as head of the Justice Department at this point to say, “I should have reviewed this. It should have gone in front of lawyers who are not just concerned with the letters that are in the executive order but what’s being said around it, the context, and more importantly, how it’s being implemented.” I think she sees a very serious constitutional problem and it’s her obligation to say something, because nobody else in that administration is.
Anderson: Professor Dershowitz…
Professor Dershowitz: Well, I think that’s right.
Anderson: I mean, how unusual is this? How uncharted waters are we in here?
Professor Dershowitz: Well, it’s very unusual. Usually, when somebody refuses to enforce the orders of the president, it involves a very, very clear case of unconstitutionality unlawfulness. She’s wrong when she says it’s the job of the Justice Department to make sure that what is happening is right, or I think also your other guest is wrong to preserve the integrity of the Justice Department and the credibility before the courts. That may be what they would like to see happen, but her job is to enforce the law unless it is clearly unconstitutional or clearly in violation of a statute. And this law doesn’t satisfy that very hard criterion or its respects. There may be parts of it that are constitutional. Let me give you an example. If you have people who are in Yemen, they’ve never been in the United States, they wanna come here, the President has plenary authority to deny them. We have a long history, a tragic history but a long history of denying people the ability to come to this country on political grounds, we don’t like their ideology, we kept them out if they were communists. That happens to be the law and the precedence. I wish that would change, but it’s not the job of the Attorney General to refuse to enforce a law based on her personal views that it’s bad policy. She can resign.
Page: Alan, this is not a normal law. This is an executive order signed by the President, that was not reviewed by the top level at the Justice Department. And it’s not just what’s in that order, it’s the process. And I think she has an obligation to make sure the process is followed and it clearly was not.
Laura: The Justice Department is not motivated by ego, Mr. Dershowitz. Their credibility they’re trying to maintain is a consistency of constitutionality throughout the land. And for the reasons you’ve just stated, that there are portions of it that can be parsed out as unconstitutional. They can’t very well enforce the piecemeal version that you’d like them to do so. They have to enforce in totality.
Professor Dershowitz: Why not? They do it all the time.
Laura: They do not, sir.
Professor Dershowitz: That’s just wrong. They do it all the time.
Laura: They do not. They…
Professor Dershowitz: You have executive orders… That’s just wrong. You have executive orders, and the courts enforce part of them and don’t enforce others of them. They’re severable, and the laws generally are written in ways that are severable. That’s very common.
Anderson: Let’s leave it with the professor here, for now. Page Pate, thank you, Laura Coates as well, Professor Alan Dershowitz. Always wanna bring in the panel. “The Daily Beast” met…
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.