Yates Changes Her Tune

Jack Goldsmith
Monday, May 8, 2017, 10:10 PM

“Sally Yates made the fake media extremely unhappy today—she said nothing but old news!” So tweeted our President a few hours ago about today’s testimony by the former Deputy (and Acting) Attorney General, whom Trump fired on January 30.

Then-Deputy Attorney General Sally Yates at the Department of Labor, April 2016 / Department of Labor

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“Sally Yates made the fake media extremely unhappy today—she said nothing but old news!” So tweeted our President a few hours ago about today’s testimony by the former Deputy (and Acting) Attorney General, whom Trump fired on January 30. As with so many of the President’s tweets, this one was inaccurate. Yates made a lot of news today. I’ll have more to say tomorrow about what she taught us about the operations of the White House Counsel’s Office and OLC in connection with the Flynn affair and the Immigration EO. But here I want to focus on some other real news in her testimony that has not yet attracted much attention: Yates changed her story from January about why she refused to defend the (first) Immigration Executive Order (EO).

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.”

Today, Yates seemed to change her story. Many of the factors she relied on in the January letter—for example, whether “the policy choice embodied in an Executive Order is wise or just,” and DOJ’s “solemn obligation to always seek justice and stand for what is right”—were not emphasized today. Instead, Yates relied on two arguments that (as best I can tell) were not presented in her January letter.

First, Yates today stated several times that she refused to enforce the EO in January because she had concluded that it was unlawful. For example, she said:

  • “Yes, because in this instance, in looking at what the intent was of the executive order, which was derived in part from an analysis of facts outside the face of the order, that is part of what led to our conclusion that it was not lawful, yes.”
  • “I made a determination that I believed that it was unlawful.”
  • “I said it was unlawful.”
  • “That's correct” (in response to Senator Durbin’s claim that Yates’ “conclusion about the unlawful nature of the Muslim travel ban” was the same position later reached by the federal courts).
  • “I believe that it is the responsibility of the attorney general if the president asks him or her to do something that he or she believes is unlawful or unconstitutional to say no, and that's what I did.”
  • “That’s correct” (in response to Senator Kennedy’s question whether Yates “declined to support -- to defend President Trump's executive order because you thought it was unconstitutional.”)

This was not a position that Yates took in her January letter, which pointedly did not conclude that the EO was unlawful or unconstitutional. The most she concluded in January, or the most she was willing to say, was that she was not convinced that the EO was lawful under the “best view” of the law. The difference between concluding that the EO was unlawful and not being convinced that it was lawful under the best view of the law may seem like hair-splitting. But the difference is vital. Merely being unconvinced that the EO was lawful under the “best view” of the law is not enough to refuse to defend it, since there might have been (and indeed there were) reasonable arguments in the EO’s defense even if it were unlawful under the “best view.”

Which brings me to the second new argument, which was presented in this exchange with Senator Kennedy:

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.

As I read Yates here, she is saying that she believed in January that no truthful reasonable argument could have been made in support of the EO. I think she means, specifically, that DOJ would have been lying if it argued that the EO was not motivated by invidious discrimination against Muslims. This is a more defensible argument than the ones made in the January letter. For if Yates really believed that the DOJ legal position would have been premised on a lie, then presumably no reasonable argument could have been made in its support and Yates could have refused to defend the position under the traditional standard. And yet Yates didn’t make this untruthfulness argument in January. Not only did she not make the argument, she seemed to suggest in the letter that she was acting on the basis of “different and broader” responsibilities than the reasonableness of the legal argument. Moreover, if Yates were taking the reasonableness standard seriously in January, she would have also had to determine that there were no other independent reasonable arguments to be made in its defense. But this she could not do. As the current litigation over the EO makes plain, there are plenty of reasonable (though not necessarily clinching) legal arguments in support of the first EO other than the one Yates thought was tainted. And indeed Yates seems to acknowledge this point when she says that career officials who defended the EO after she left “must make an argument if they can make a reasonable legal argument,” even as she takes it back in insisting that she had broader responsibilities.

One can speculate why Yates made arguments today that she did not make in the January letter. Perhaps what she said today was what she meant in January but she did not express herself well because she wrote the letter under time pressure. Perhaps (as the letter seemed to indicate) she had not concluded in January that the EO was unconstitutional or its defense unreasonable, but she felt so repulsed by the EO and so strongly that DOJ should not defend it that she fudged the issue. Perhaps she feels more emboldened in her legal conclusions now, or can be more candid about them, because of the subsequent judicial decisions declaring the EO illegal. Perhaps those intervening judicial decisions clarified her inchoate thinking at the time. Perhaps she was bolloxed up by her belief that the main (but not only) argument in support of the EO rested on a lie. Perhaps it was a bit of many or all of these things. Whatever the reason, Yates sang a different tune today than she did in January.

Coda: 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. But that is another story altogether which I lack time now to explore.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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