Executive Power

Quick Thoughts On Sally Yates’ Unpersuasive Statement

By Jack Goldsmith
Monday, January 30, 2017, 9:32 PM

Acting Attorney General Sally Yates—who was Barack Obama’s Deputy Attorney General and has been running DOJ until Jeff Sessions is confirmed—today sent a letter to top Justice Department officials announcing that she will “will not present arguments in defense of” President Trump’s controversial Immigration Executive Order “unless and until I become convinced that it is appropriate to do so.”  In response, President Trump just fired her.     

I have not yet examined the EO with sufficient care to determine for myself its legality. The EO was obviously issued in haste, without the usual procedural or substantive review within the Executive branch, and without thinking through its consequences. At a minimum, and entirely independent of its legality, the issuance of the EO was deeply imprudent. I know that many people who find the Trump EO abhorrent are cheering wildly for Yates.  Nonetheless, the reasons that Yates gave in her carefully worded letter for not defending the EO in court are extraordinarily weak, in my opinion.      

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The Constitution vests the “executive Power” in the President, and states that “he shall take care that the laws be faithfully executed.”  These are the main constitutional provisions from which the president’s authority over legal interpretation and legal superintendence of the Executive branch flow.   

The Attorney General serves as the “head of the Department of Justice.”  The Attorney General’s core responsibilities include supervising DOJ, providing legal advice to the rest of the Executive Branch, and “[r]epresent[ing] the United States in legal matters generally.”  When the Attorney General’s office is vacant, as it currently is, “the Deputy Attorney General may exercise all the duties of that office.”  For all relevant purposes, Yates is the Attorney General.    

The Attorney General (and here that means the Acting Attorney General) has the clear authority to determine which presidential orders the Department will defend in court, and how, although her determinations are subject to presidential reversal.  So unless and until Trump orders Yates to defend the EO or fires her for insubordination, this is Yates’ call to make.  Yates is right, in other words, that “[a]s the Acting Attorney General, it is my ultimate responsibility to determine the position of the Department of Justice in these actions.” Yates is also right that in deciding whether and how to defend presidential action in court, her role is different from the Office of Legal Counsel (OLC), which (as she correctly says) reviews EOs only for the narrow issue of whether the EO “is lawful on its face and properly drafted.”   

So far so good. But the reasons that Yates then gives for deciding not to defend the EO in court are labored and, to me, unconvincing. Most importantly, Yates does not say that she has concluded that the EO is unlawful.  Nor does she say that defending the EO in court would be unreasonable.  Rather, she says:

[OLC’s] review does not take account of statements made by an administration or its 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.

Yes, in deciding whether and how to defend an EO in Court, the Attorney General’s responsibilities go beyond OLC’s “form and legality” review.  Things get trickier when she says that her responsibilities are broader than the Civil Division's responsibility to “advanc[e] reasonable legal arguments that can be made supporting an Executive Order.”  Yates definitely gets the final call on whether the arguments in support of the EO are reasonable.  But note that she does not here suggest that the arguments in support of the EO are unreasonable.   

Instead, Yates gives four reasons for refusing to defend the EO.  Here they are, with my quick reactions.   

First, Yates says that OLC did not take into account “statements made by an administration or its surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose.” I assume Yates is referring here to statements such as the one by Rudy Giuliani, who recently claimed that Trump wanted a “Muslim ban” and sought “the right way to do it legally.  I am sure OLC didn’t take such statements into account, since they would not be relevant to review for form and legality.  I can imagine these and similar statements properly informing the Attorney General’s view of the legality of the EO, if she believed that these statements amounted to the EO being motivated by invidious discrimination (though even if she concluded that, the relevance of such discrimination in the context of the immigration issues here is tricky).  But Yates does not say she has concluded that, and it is pretty clear from the context of her letter (see below) that she has not ruled out that there are reasonable arguments in support of the EO.   

Second, she says that OLC did not “address whether any policy choice embodied in an Executive Order is wise or just.” True, that is not OLC’s job.  But nor is it the Attorney General’s—at least not if the President has decided that the policy choice is wise and just.  The Attorney General can personally advise the President about an EO’s wisdom and justness.  And the Attorney General can decide to resign if she thinks the President is pursuing a policy so unwise and unjust as to be morally indefensible.  But an Attorney General does not typically (I cannot think of a counterexample offhand) refuse to defend an Executive Order in court because she disagrees with the policy basis for the EO.

Third, Yates says her “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.”  This is not the standard that the Attorney General and DOJ typically use in deciding whether to defend presidential action in court. (Some have suggested that this is the standard that OLC should use in deciding whether presidential action outside of judicial review is lawful, though that position is contested.)  Rather, the longstanding DOJ view is that DOJ will defend a presidential action in court if there are reasonable arguments in its favor, regardless of whether DOJ has concluded that the arguments are persuasive, which is an issue ultimately for courts to decide.  DOJ very often—typically—defends presidential action in court if there is a reasonable legal basis for the action, even if it is not supported by the “best view” of the law.  Indeed, that happened a lot in the Obama administration, as it does in all administrations.     

Fourth, Yates says she is 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.” This sounds like a restatement of the policy choice point above.  The Attorney General has discretion to make some DOJ decisions based on what she thinks is just and right.  But in the context of deciding whether to defend a presidential EO, the question for Yates is reasonable legality, not what is just and right.  If Yates thought the EO, independent of its legality, had crossed a red line of justice and rightness—whatever those terms mean—she should have counseled the President on that point and resigned if he disagreed.  

Yates states at the end of her letter that she is “not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.”  This statement summarizes the two major points above.  First, she believes the standard for defending the EO is “best view of the law,” not reasonable legality, and she is not convinced the EO is consistent with the best view of the law.  But as noted above, the typical standard for the Attorney General to defend an EO of the President is not whether she is convinced of its legality.  Rather, the standard is something closer to the idea that she should defend the EO unless she is convinced of its illegality--i.e. she defends if there is a reasonable argument for its legality. Second, Yates believes that defending the EO is inconsistent with her responsibilities to interject a policy analysis analysis about the wisdom and justness of the EO independent of the President. For reasons stated above, I do not believe that either of these arguments are persuasive given her role. Nor are they consistent with what I understand the duties and responsibilities of the Attorney General to be.  

Yates is obviously in an extraordinarily difficult position as Acting Attorney General for a President whose policy goals she does not share.  She is clearly repulsed by the EO, and wants no part in its enforcement. (One of the many elements of poor governance by the Trump administration was to issue the controversial and poorly thought-through EO when Barack Obama’s Deputy Attorney General is serving as Acting Attorney General.) But if Yates feels this way, she should have resigned (though if Yates goes, there may be no statutory officer in DOJ who can approve FISA orders.) Instead, she wrote a letter that appears to depart sharply from the usual criteria that an Attorney General would apply in deciding whether to defend an EO in court.  As such, the letter seems like an act of insubordination that invites the President to fire her.  Which he did.  

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