In a sensible world, former Acting Attorney General Sally Yates would be a hero.
Ms. Yates appeared before a Senate subcommittee hearing on Russian interference in the 2016 election earlier this week. She was well-prepared, forthright, candid and very effective. And a credit to the career attorneys at the U.S. Department of Justice.
Republican Senators who tried to criticize or mis-characterize her testimony were schooled. Senator John Cornyn (R, Texas, of course) criticized her for refusing to enforce President Trump’s travel ban. Yates reminded Cornyn of her testimony at her confirmation hearing. Senator Cornyn, obsessed that President Obama might do something illegal, asked Yates if she would follow the law. She reminded Senator Cornyn she promised she would follow the law. Then Yates said,”I looked at [the travel ban], I made a determination that I believed that it was unlawful. I also thought that it was inconsistent with the 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.”
“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 for a court to decide,” Cornyn responded.
“Senator, I did not say it was lawful,” Yates replied. “I said it was unlawful.”
Senator Cornyn may or may not be smart enough to realize it, but he had his clock cleaned by Yates.
Senator Ted Cruz (R, Texas, of course), who for reasons WC has never understood, has a reputation as a good debater, fared just as poorly. Cruz asked Yates if an attorney general has the authority to direct the Department of Justice to defy a president’s order. Yates then responded, “I don’t know. . . but I don’t think it would be a good idea, and that’s not what I did in this case.”
Cruz responded reading Yates a statute that grants the US president authority to suspend immigration into the country. Yates then responded to Cruz by quoting from the Immigration and Nationality Act, which states, “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”
Yates then said that her main concern was whether or not Trump’s travel ban order violated the constitution. “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 his intents were laid out in his statements,” she said.
Cruz interrupted Yates, asking if she was aware of any other instance in which an attorney general has directed the Department of Justice to defy a policy.
“I’m not, but I’m also not aware of a situation where the Office of Legal Counsel was advised to not tell the attorney general about anything until after it was over,” Yates replied.
Unlike Senator Cornyn, Cruz knew he’d just been whipped, as did the crowd in the room. There was audible laughter.
The courts have so far held that Yates was correct on the law. It cost her her job. Because she followed the law, followed her oath and made the hard decision.
WC doesn’t know what you look for in a public servant, in a career Department of Justice lawyer. But you could do much worse than hold Sally Yates up as an example.