Acting AG, An Obama Holdover, Says Justice Dept Won’t Defend Refugee Order

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Kevin Daley Supreme Court correspondent
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Acting Attorney General Sally Yates, an Obama-appointee who is leading the U.S. Department of Justice (DOJ) until Sen. Jeff Sessions is confirmed, announced the department will not defend President Donald Trump’s executive order on refugees.

Yates was dismissed shortly thereafter by the president. Dana Boente, U.S. Attorney for the Eastern District of Virginia, to serve as acting AG in the interim.

Yates ordered government lawyers not to defend challenges to the president’s order, which bans migration from seven countries with high instances of terrorism for a period of 90 days. The acting AG says she has an institutional responsibility to ensure that the department seeks and applies justice in an equitable way.

“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,” she said in a statement. “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.”

Her announcement is a stunning display of defiance that only finds precedent in the waning days of the Nixon administration, when the embattled president dismissed several senior DOJ employees who refused to comply with his orders to fire the special prosecutor leading the Watergate investigation.

Former Attorney General Eric Holder praised Yates’s integrity minutes after news of her statement broke, counseling that her “judgement should be trusted.”

Holder, who is now in private practice at Covington & Burling, was recently retained to represent the state of California in future legal battles with the Trump administration.

Senate Minority Chuck Schumer echoed Holder’s remarks on CNN Tuesday night.

“This is a poor reflection on President Trump and his entire administration…I don’t think there’s much doubt that what they’ve done is unconstitutional,” Schumer said.

Writing at the Volokh Conspiracy, professor Jonathan Adler of Case Western Reserve University School of Law argues that Yates’s action breaks with Department protocol, to the extent that the AG generally defends government actions that are presumptively lawful.

Yates does not claim that she cannot defend the executive order because it is unconstitutional or because the Justice Department would be unable to offer good-faith arguments in defense of its legality. To the contrary, Yates claims she is ordering the Justice Department not to defend the executive order because it is not ‘wise or just.’ This is quite significant. I am not aware of any instance in which the Justice Department has refused to defend a presumptively lawful executive action on this basis.

The DOJ’s announcement is certain to entice Senate Democrats to continue their delay of the Sessions confirmation, given their enthusiasm for deploying procedural roadblocks to stymie the Trump administration’s agenda.

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