In a letter to top lawyers at the Justice Department, Deputy Attorney General Sally Yates, who is the acting Attorney General until Jeff Sessions is confirmed by the Senate, gave orders not defend President Trump's executive order on immigration. Yates became the acting head of the Justice Department when Loretta Lynch stepped down as attorney general earlier in January.
Yates, who was the lead prosecutor in the prosecution of Olympic Park bomber Eric Rudolph and was later appointed to be deputy attorney general by Barack Obama, wrote:
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 responsibility 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 of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.
The problem for Trump until Sessions is confirmed is that she is the top Senate-confirmed official at the Justice Department, and thus the only person authorized to sign foreign surveillance warrants.
As The Wall Street Journal reports:
Ms. Yates’s decision is based on the series of lawsuits that were filed in the first 24 hours in which immigration officials began enforcing Mr. Trump’s order on refugees and immigrants. Civil rights and immigrant advocates sued on behalf of individuals affected by the decision, particularly legal permanent residents who suddenly found themselves in limbo at U.S. airports when the order went into effect. Because of those lawsuits, Justice Department lawyers have begun appearing in court to defend the legality of the order, meaning that Ms. Yates ended up overseeing, albeit temporarily, the legal position of the Trump administration.
"For as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so."
Acting Attorney General Sally Yates
The White House is going to issue a response about Yates’ statement tonight, according to The New York Times: