Yates was right

Posted on: January 31, 2017 at 21:59:21 CT

At her 2015 confirmation hearing, Deputy Attorney General nominee Sally Yates was asked by Senator Jeff Sessions what the Attorney General should do if asked to implement an illegal order of the president: “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?” Yates replied: “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.”

On Monday night, Yates demonstrated the independence that Sessions sought – “you need to say no” – and she lost her job because of it. As lawyers who counseled presidents and senior officials of both parties on their Constitutional and ethical duties, we believe her actions were lawful and right.

Yates was following her oath of office to “support and defend the Constitution.” That can sometimes mean defending it from government attacks. As then-Attorney General Benjamin Civiletti explained to Congress in 1980:

“... If Congress were to enact a law requiring, for example, that the Attorney General arrest and imprison all members of the opposition party without trial, the Attorney General could lawfully decline to enforce such a law; and he could lawfully decline to defend it in court. Indeed, he would be untrue to his office if he were to do otherwise ...”

That is strikingly similar to the situation in which Yates found herself with respect to the executive order President Trump issued Friday, which banned nationals of seven countries from entering the United States. Over the weekend, Yates read the order, the Constitution and other law, researched the facts, and concluded that the order was transparently invalid in light of the Constitution, and so could not be defended in court.

She was being “true to her office” in Civiletti’s words. All seven of the countries whose nationals are subject to the order are predominantly Muslim. The president repeatedly said on the campaign trail that he would ban Muslims from entering the United States. The president also said that he would exempt Christian refugees from the order and, in fact, the order exempts persons of “minority religions” within each of the seven countries.

The First Amendment to the Constitution prohibits government establishment of religion or interference with the free exercise of religion. Discriminating against Jews, Muslims, Hindus or persons of any other faith is unconstitutional and this executive order appears to do just that.

The order is also arbitrary. Few terrorist attacks have been perpetrated inside the United States by nationals of the seven countries on the list, and none have resulted in deaths. By contrast, nationals of countries not on the list – including Saudi Arabia, Egypt and the United Arab Emirates – have perpetrated far more acts of terrorism in the United States, causing substantial fatalities, including in the attacks on September 11, 2001.

The list of countries subject to the ban also is remarkable in that these are mostly poor countries where the Trump organization does little or no business. They lack Trump hotels or office buildings, Trump licensing deals, and Trump deals with sovereign wealth funds and other state owned businesses that inject cash into Trump businesses. By contrast, the predominantly Muslim countries not on the list, including Saudi Arabia, Egypt, the United Arab Emirates, Indonesia and Turkey, are countries where the Trump organization has done or currently does business.