Yesterday, amidst the genuflecting in the direction of Sally Yates there was an exchange in which Yates, not to put too fine a point on it, simply lied to the U.S. Senate.
Louisiana Senator John Kennedy was engaging Yates on her thought process in refusing to defend President Trump’s first travel ban executive order (yes, I know it wasn’t a travel ban, but I’m using the phrase as shorthand). Here is the transcript of the exchange courtesy of Lawfare Blog.
KENNEDY: And you believe there was no — you believe that no reasonable argument could be made in its defense, is that correct?
YATES: I don’t know that I would put it in that — in that way, Senator. I — this was the analysis that we went through. …
KENNEDY: Did you believe, then, that there were reasonable arguments that could be made in its defense?
YATES: I believed that any argument that we would have to make in its defense would not be grounded in the truth, because, to make an argument in its defense, we would have to argue that the executive order had nothing to do with religion, that it was not done with an intent to discriminate against Muslims. And based on a variety of factors…
KENNEDY: Ms. Yates, are there any reasonable arguments that can be made in defense of President Trump’s executive order?
YATES: I don’t believe that there are reasonable legal arguments that are grounded in truth that can be made in defense of his argument that the travel ban was not intended to have an impact, a religious impact, and to disfavor Muslims….
KENNEDY: So you believe that the arguments made by the lawyers who are now defending the executive order are unreasonable?
YATES: I believe that the Department of Justice has a responsibility to uphold the law and to always speak the truth, particularly when it’s about something as fundamental as this executive order was, that deals with religious freedom. But let me say this. I have tremendous respect for the career men and women of the Department of Justice, including the lawyers in the civil division who are handling this. But their obligation was different than mine. They must make an argument if they can make a reasonable legal argument. As acting attorney general, my responsibility was broader than that and I had to look beyond the confines of the face of the E.O. to look at the president’s statements and to look at other factors to determine what was the actual intent here, and that was the basis for my decision.
This is interesting from three different perspectives.
In the first place, she claims there was no way the Department of Justice could defend the order without lying because it was obviously based on a some sort of discrimination. This is the worst sort of hackery. A great majority of the Muslim world, including the most populous Muslim nations and Muslims living in non-Muslim nations, were not covered. That alone calls bullsh** on her pious righteousness. In fact, the order had been reviewed by the Department of Justice’s Office of Legal Counsel and okayed.
Most interesting is that this was not the reason that Yates used back in January when she refused to do her job. Back to Professor Jack Goldsmith at Lawfare Blog:
In January I wrote about the unsigned letter that Yates sent to DOJ officials to explain her decision not to defend the EO in court. To recap what I said then: As Acting Attorney General, Yates had the authority to determine whether DOJ would defend the EO in Court. But under traditional Department practices, Yates had a duty to defend the EO, even if she was unconvinced of its legality or even believed it was probably unlawful, if there was a reasonable argument that could be made for its legality. As I explained in my post, Yates’ did not say in her letter that she has concluded that the EO is unlawful. Nor did she say that no reasonable arguments could be made in defense of the EO. Instead, she gave a series of muddled reasons for her decisions, some based on her uncertainty whether the EO was lawful under the “best view” of the law under all of the facts (which was not remotely the right standard), and some based on policy considerations (which should have been irrelevant to the decision to defend a presidential order). While acknowledging the difficulty of Yates’ position and her obvious repulsion by the EO, I concluded that the reasons she gave in her letter “appear to depart sharply from the usual criteria that an Attorney General would apply in deciding whether to defend an EO in court.”
In short, the answer she gave yesterday, under oath, bears no resemblance whatsoever to the reason she gave in January. This is simply partisan point scoring and cynical opportunism on parade.
Finally, Professor Goldsmith points out that her claim that the executive order was “unlawful” violates long-standing practice in the Department of Justice:
I did not write this in my original January post, but the reasonableness standard is the one the Department employs for defending congressional statutes. As Marty Lederman noted in our podcast debate, the Department traditionally always defends an EO on the theory that the President has determined it to be lawful. As Marty stated: “As long as the President’s view is that it’s lawful, of course the Department of Justice will defend its legality in court because the President gets the final word on how the Executive branch and the Department in particular, what position they take in court.” On this view, which is probably right, Yates views about the legality of the EO were technically irrelevant.
In short, Yates blatantly lied to the Senate yesterday in the same way she blatantly refused to carry out her legal obligation in January. And that lack of integrity makes her the front runner for a Democrat senate nomination somewhere… just like Elizabeth Warren and Richard Blumenthal.