On 30 January 2017, US Attorney General Sally Yates was sacked by President Donald Trump. In a statement by the White House, Mrs Yates was accused of betraying the Department of Justice following her decision not to enforce an Executive Order on immigration signed off by President Trump. Mrs Yates had been appointed Deputy Attorney General by President Obama two years earlier, on 10 January 2015.
In an op-ed on the New York Times of 28 July 2017 Mrs Yates stood by her decision, which was made according to the law and with a determination to maintain as much has possible the independence of the Department. “We all have a responsibility to protect our Justice Department’s ability to do its job free from interference. The very foundation of our justice system — the rule of law — depends on it”, she wrote.
Previously, testifying on Russian election interference at a Senate Judiciary subcommittee hearing on 8 May 2017, Mrs Yates said “We’re not just a law firm, we’re the Department of Justice”. What follows is an extract of the transcript of the hearing where she confirms to Senator Cornyn that the Executive Order was unlwful.
CORNYN: Ms. Yates, this is the first time that you’ve appeared before Congress since you left the Department of Justice, and I just wanted to ask you a question about the — your decision to refuse to defend the president’s executive order.
In the letter that you sent to Congress, you point out that the executive order itself was drafted in consultation with the Office of Legal Counsel, and you point out that the Office of Legal Counsel reviewed it to determine whether, in its view, the proposed executive order was lawful on its face and properly drafted.
Is it true that the Office of Legal Counsel did conclude it was lawful on its face and properly drafted?
YATES: Yes, they did.
CORNYN: And you overruled them?
YATES: … I did. The office of legal…
CORNYN: Did you (ph) — what — what is your authority to — to overrule the Office of Legal Counsel when it comes to a legal determination?
YATES: The Office of Legal Counsel has a narrow function, and that is to look at the face of an executive order and to determine purely on its face whether there is some set of circumstances under which at least some part of the executive order may be lawful. And importantly, they do not look beyond the face of the executive order, for example, statement that are made contemporaneously or prior to the execution of the E.O. that may bear on its intent and purpose.
That office does not look at those factors, and in determining the constitutionality of this executive order, that was an important analysis to engage in and one that I did.
CORNYN: Well, Ms. Yates, I thought the Department of Justice had a long standing tradition of defending a presidential action in court if there are reasonable arguments in its favor, regardless whether those arguments might prove to be ultimately persuasive, which of course is up to the courts to decide and not you, correct?
YATES: It is correct that often times, but not always, the civil division of the Department of Justice will defend an action of the president or an action of Congress if there is a reasonable argument to be made. But in this instance, all – all arguments have to be based on truth because we’re the Department of Justice. We’re not just a law firm, we’re the Department of Justice and the…
CORNYN: You distinguish the truth from lawful?
YATES: 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.
CORNYN: Well, Ms. Yates, you had a distinguished career for 27 years at the Department of Justice and I voted for your confirmation because I believed that you had a distinguished career. But I have to tell you that I find it enormously disappointing that you somehow vetoed the decision of the Office of Legal Counsel with regard to the lawfulness of the president’s order and decided instead that you would counter man (ph) the executive order of the president of the United States because you happen to disagree with it as a policy matter.
YATES: Well, it was…
CORNYN: I just have to say that.
YATES: I appreciate that, Senator, and let me make one thing clear. It is not purely as a policy matter. In fact, I’ll remember my confirmation hearing. In an exchange that I had with you and others of your colleagues where you specifically asked me in that hearing that if the president asked me to do something that was unlawful or unconstitutional and one of your colleagues said or even just that would reflect poorly on the Department of Justice, would I say no? And I looked at this, I made a determination that I believed that it was unlawful. I also thought that it was inconsistent with principles of the Department of Justice and I said no. And that’s what I promised you I would do and that’s what I did.
CORNYN: I don’t know how you can say that it was lawful and say that it was within your prerogative to refuse to defend it in a court of law and leave it to the court to decide.
YATES: Senator, I did not say it was lawful. I said it was unlawful.
Watch the video of the hearing