The Constitutional Crisis Thread

[_Kevin Graham]

There are some heated debates going on now in social media and a few articles by attorneys already written on the web saying she, as an employee of the Executive branch, only has two options when given an order: 1) Obey the order or 2) resign.

[_Jersey Girl]

If it was approved by the DOJ, how can she disobey it and still hold her position?

Who exactly approved it?

https://www.wlrh.org/NPR-News/key-justi ... ive-orders

Key Justice Dept. Office Won't Say If It Approved White House Executive Orders
Friday, January 27, 2017

The U.S. Justice Department said it has "no comment" on whether its Office of Legal Counsel has reviewed any of President Trump's executive orders, which have met with criticism this week because of vague language and possible conflicts with legal precedents.

The department's own website says:

"All executive orders and proclamations proposed to be issued by the President are reviewed by the Office of Legal Counsel for form and legality, as are various other matters that require the President's formal approval."

The OLC, a small but powerful unit within Justice, advises the executive branch on constitutional questions and the limits of executive power. It is frequently called upon to decide complex problems, especially when two different agencies are in conflict.

During the George W. Bush years, it drew criticism for opinions that paved the way for harsh detainee interrogation tactics. During the Obama administration, the office blessed the legality of weaponized drone strikes against an American citizen overseas. Earlier this month, a career lawyer in the office concluded that Trump's hiring of son-in-law Jared Kushner for a top post in the White House did not violate federal anti-nepotism law.

The prospect that administration lawyers are not reviewing a series of executive orders flowing out of the White House in its first week is raising eyebrows in legal circles.

"OLC is supposed to review all executive orders for legality before they are issued," Matthew Miller, a former spokesman for the Obama Justice Department, pointed out on Twitter in response to this reporter. "Longstanding practice under admins of both parties."

In fact, Miller said, under a decades-old federal rule, the president is supposed to submit proposed executive orders and proclamations to both the Office of Management and Budget and the Attorney General, who reviews the materials for both "form and legality."

The White House in years past has at times bypassed the OLC altogether on sensitive matters of national security or has overruled informal, oral advice from lawyers there. For instance, in 2011, the Obama White House rejected the judgment of Justice Department and Pentagon officials and decided it had the authority to continue military operations in Libya without seeking approval from Congress.

Legal scholars and veterans of the OLC said the ultimate legal power resides with the president himself. And, they said, at times during a transition to a new administration, the coordination between the Justice Department and the White House on issues of law and policy can take time to mature.

Still, Walter Dellinger, who headed the OLC during the Clinton administration, said it's "essential that any order issued by the President be reviewed for lawfulness by the career lawyers at the Office of Legal Counsel. That is not a task that can be left to White House staff if we are going to be a nation of laws."

Officials at the Constitutional Accountability Center, a left-leaning public interest law firm and think tank, said Trump's nominee to lead the Justice Department, Alabama Republican Senator Jeff Sessions, should answer questions about whether he'll "commit to requiring OLC to perform its long-established role of reviewing such orders in the future." Copyright 2017 NPR. To see more, visit http://www.npr.org/.

Here is my question. Did Sally Yates greenlight the executive order for form and legality, then change her position?

[_Res Ipsa]

There are some heated debates going on now in social media and a few articles by attorneys already written on the web saying she, as an employee of the Executive branch, only has two options when given an order: 1) Obey the order or 2) resign.

Oh, I'm sure there are. The AG takes an oath to defend the Constitution, not obey the President. The AG is given, by statute, exclusive control over litigation to which the U.S. is a party. If she determines that legislation or executive orders violate the constitution, her oath requires her not to enforce them. I think that means she has a duty to tell the President or the Congress "nuts" and let the President decide whether to fire or not.

What do people argue is the source of any duty to resign?

[_Jersey Girl]

I don't think so. Part of the AG's job is to use her independent judgment.

When is she supposed to use her independent judgement? After an executive order exits her department review or should she have discussed her concerns prior?

[_Res Ipsa]

I don't think so. Part of the AG's job is to use her independent judgment.

When is she supposed to use her independent judgement? After an executive order exits her department review or should she have discussed her concerns prior?

You are assuming that the AG reviews executive orders as a matter of routine. The website indicates otherwise:

By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality.

Have you seen any evidence that Yates saw and signed off on the executive order before it was issued? Has she said she did? Is her signature on anything?

Even if she did, opinions can change based on evidence. For example, in the AG's opinion, the intent of the executive order is relevant. When Rudy went public with his statement that Trump called him and said he wanted a "Muslim Ban" and then they worked from that to create the executive order, that's evidence of intent to discriminate on the basis of religion.

And the answer to your question is the AG is ALWAYS supposed to use her independent judgment, even if that judgment changes in response to events that occur over time

Update on State of Washington v. Trump et al: The complaint was filed yesterday, along with a motion for a TRO. A hearing was held today. No TRO was issued. The judge ordered a hearing for February 2 on the issue of standing of the state to bring the lawsuit. The defendants were served with the lawsuit today.

Update on Aziz v. Trump et al: The judge ordered a hearing for 2/10 as to whether a Preliminary Injunction should be issued. The Commonwealth of Virginia moved to intervene in the lawsuit.

[_Kevin Graham]

There are some heated debates going on now in social media and a few articles by attorneys already written on the web saying she, as an employee of the Executive branch, only has two options when given an order: 1) Obey the order or 2) resign.

Oh, I'm sure there are. The AG takes an oath to defend the Constitution, not obey the President. The AG is given, by statute, exclusive control over litigation to which the U.S. is a party. If she determines that legislation or executive orders violate the constitution, her oath requires her not to enforce them. I think that means she has a duty to tell the President or the Congress "nuts" and let the President decide whether to fire or not.

What do people argue is the source of any duty to resign?

They're saying she had an obligation to defend his orders and she refused. So I did some googling and sure enough, there are already some internet pieces written about this. Alan Dershowitz for example: Sally Yates was wrong and should have resigned

Also,

What Yates Should Have Done

Let me start by saying that I share the moral sentiment behind Sally Yates’s order to the Justice Department not to defend Trump’s Executive Order. Indeed, given everything I have said on the subject of the order, I should be—as Jack Goldsmith notes that many commentators will be—“cheering wildly for Yates” and her stand against Trump, as she rides off into the sunset on the back of a White House statement that reads like it was written by a petulant three-year old.

The problem is that Jack is right. And notwithstanding my sympathy for Yates’s moral and policy position, her action is simply not defensible and not in keeping with the traditions of the Justice Department. What’s more, she had at her disposal a means of giving voice to her (quite correct) view that Trump’s order is neither right nor just, was born in some very sinful original sins, and undoubtedly has a great many unlawful applications. This proper means of expressing these sentiments would have been fully in keeping with the traditions of the department and would have left Yates no more unemployed than the evening has, in fact, done.

Yates should have resigned.

Everything she said in her statement amounts to the following: I disagree with what the president did, I don’t trust his motives for doing it, and I think opposing litigants may have some very strong arguments. I agree with all of those points. And they would have made up just as rip-roaring a letter of resignation—one that would have done her and the department honor—as they made up an unconvincing order to the department. Instead, she took a step that amounted to frank insubordination and amply justified, indeed necessitated, her removal, a step which actually muddied the moral waters of our current situation. And she emerged with no more job protection than had she orchestrated her own exit in a fashion that kept her on the right side of propriety.

Yates had a bad hand, yes, but she also played it badly.

Score one for Trump.

Here is another from Politico: Why Trump Had to Fire Sally Yates

[_Res Ipsa]

I really think folks are splitting hairs here. The difference between telling your boss "no" and telling him "I quit" is pretty small, especially in the is context. If she had, instead, quietly tried to sabotage cases defending the order, that would have been wrong. But given that her oath is to defend the Constitution and not obey the President, I don't see the source of any duty to resign.

Most of us lawyers have had the experience of having a client try to order is to do something illegal or in violation of our ethics rules. I tell them "no." They can decide whether to fire me. It's a little more complicate with the AG/President relationship. But the AG's oaths as a lawyer and as the AG, I think, make their position a little different from other members of the Executive Branch.

I agree with the Dersh that she's not a hero or a villain. She did what I expect an AG would do.

ETA: I also have no problem with Trump firing Yates. That's part of the system.

[_Jersey Girl]

When is she supposed to use her independent judgement? After an executive order exits her department review or should she have discussed her concerns prior?

You are assuming that the AG reviews executive orders as a matter of routine. The website indicates otherwise:

By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality.

Have you seen any evidence that Yates saw and signed off on the executive order before it was issued? Has she said she did? Is her signature on anything?

No, that's why I asked point blank if she greenlighted the executive order and then changed her position. You wrote in a reply to KG: I think that means she has a duty to tell the President or the Congress "nuts" and let the President decide whether to fire or not.

The problem is that we DKS about what took place. If she has a duty to discuss with the President then did that happen? We don't know anything about this and how are we supposed to find out?

Even if she did, opinions can change based on evidence. For example, in the AG's opinion, the intent of the executive order is relevant. When Rudy went public with his statement that Trump called him and said he wanted a "Muslim Ban" and then they worked from that to create the executive order, that's evidence of intent to discriminate on the basis of religion.

Which came first? Her defiance of the executive order or the piece about Giuliani/Muslim ban?

And the answer to your question is the AG is ALWAYS supposed to use her independent judgment, even if that judgment changes in response to events that occur over time

It would seem to me (and no I don't claim to know and that's why I'm keeping my comments here to a minimum) that if the new President is pitching executive order's at a rapid pace, the AG might be the one wanting to catch the balls. And if the AG, catches the balls, she might have been having a discussion with the President directly to offer her opinion regarding legalities, not up and telling attorneys not to defend the executive order, then getting dropped for doing so. If she discussed with President and expressed her opinion, he told her tough luck, then I think she should have resigned her position.

Again, we DKS about what took place.

[_Res Ipsa]

I agree that we DKS. We may NKS. Frankly, that's why I hadn't been commenting on her actions/firing. I have lots of questions, but I don't have much on which to base an opinion.

To determine whether the executive order is legal/constitutional would take a fair amount of research and analysis. I would like to hope that it was done by somebody. I'd like to hope it was written down in an analysis somewhere.

[_Jersey Girl]

I agree that we DKS. We may NKS. Frankly, that's why I hadn't been commenting on her actions/firing. I have lots of questions, but I don't have much on which to base an opinion.

To determine whether the executive order is legal/constitutional would take a fair amount of research and analysis. I would like to hope that it was done by somebody. I'd like to hope it was written down in an analysis somewhere.

Listen, tell me where I am wrong. This isn't the first halt on travel/immigration, is it? Other administrations have done this, haven't they? So Trump and his folks, enact a temp 90 day halt on travel/immigration using a list of problematic countries developed by the Obama administration.

So why are folks hopping up and down over this? Because it was poorly executed? What?