Before Trump fired her for refusing to defend his Muslim ban, Acting Attorney General Sally Yates explained:
On January 27, 2017, the President signed an Executive Order regarding immigrants and
refugees from certain Muslim-majority countries. The order has now been challenged in a number of jurisdictions. As the Acting Attorney General, it is my ultimate esponsibility to determine the position of the Department of Justice in these actions.
My role is different from that of the Office of Legal Counsel (OLC), which, through
administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted. Its review does not take account of statements made by an administration or it 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.
Consequently, for as long as I am the Acting Attorney General, the Department ofCNN reports:
Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.
Video of Yates' 2015 confirmation hearing as deputy attorney general shows Sen. Jeff Sessions grilling her about her responsibility to then-President Barack Obama should he require her to execute "unlawful" views. Sessions is now Donald Trump's pick to lead the Justice Department.
"You have to watch out because people will be asking you to do things and you need to say no. You think the attorney general has the responsibility to say no to the President if he asks for something that's improper?" Sessions asks Yates.
"A lot of people have defended the Lynch nomination, for example by saying, 'Well, he appoints somebody who's going to execute his views, what's wrong with that?' " the GOP senator from Alabama asks, referring to Obama's 2014 nomination of Loretta Lynch as attorney general.
"But if the views the President wants to execute are unlawful, should the attorney general or the deputy attorney general say no?"
Yates replies: "Senator, I believe the attorney general or the deputy attorney general has an obligation to follow the law and the Constitution and to give their independent legal advice to the President."