No time for an edit yesterday. Here's an edited version....
If the views of the President are unlawful, should the AG say no to that? I doubt even Senator Sessions would object to someone who said no to a President issuing an illegal EO. Indeed, the question above was his question to Mrs Yates, with the clear implication that it is right to do so.
This says something important. The AG's primary duties are to the law and to the people. At a temporal and mundane level, he or she serves the President; but not to the detriment of these higher obligations. Indeed, it is part of an AG's service to the President to provide the sort of advice which ensures that executive actions and adherence to the law are not conflicting prerogatives. If the president fails to ask for this advice, they are more likely to run afoul of a conflict. And the AG is more likely to be put in the position of making a choice between their constitutional duties and their service to the president.
Should the AG say no? Yes, they should.
The fact that a president fires a person discharging their duties tells you nothing about whether they were acting properly in doing so. It only tells you that the president has made a decision. Such decisions may be entirely arbitrary. Indeed, one would expect a presidential bad actor to fire an AG who exhibits the integrity necessary to their office.
I am not going to discuss the lawfulness of the EO. This is something for the courts to decide. The president has wide latitude in these matters. But nevertheless, he can run afoul of constitutional or legal protections. I am not sure if the Establishment Clause applies to immigrants. Some think so. It seems like a sensible place for that discussion to begin anyway. But it isn't my concern at this juncture.
Instead, I am interested in Yates' reasoning for her decision not to defend the EO, which discusses the importance of justice and jurisprudence in the role of the AG.
Let's begin with her involvement in drafting, reviewing or approving the EO.
"Ms. Yates, like other senior government officials, was caught by surprise by the executive order and agonized over the weekend about how to respond, two Justice Department officials involved in the weekend deliberations said. Ms. Yates considered resigning but said she told colleagues she did not want to leave it to her successor to face the same dilemma." - NYT
The Office of Legal Counsel - a different office within the DoJ - reviewed the EO and approved it (or provided its legal opinion if you prefer) as lawful on its face and properly drafted. This limited approval is something upon which Trump's executive branch partly relies but it is not the entirety of what is valuable. There is the form of the law, and then there is its spirit, or its substance. At a profound level, it is important that the law is not seen to be unjust.
It appears the AG was not consulted so that she was unable to furnish her independent advice in advance of the signing and publication of the EO. As Mrs Yates indicated, her advice isn't merely formal. It rises above the level of form and legality. It inhabits the realm of justice. She was clearly troubled that the EO potentially transgressed on this level. The president doesn't have to ask for her advice. But it is wise to do so as the AG is responsible for the EO's defence in the courts.
She was not consulted. She neither reviewed nor approved it in advance of its release. So she was left to ponder its legality afterwards.
Why was she unwilling to defend the EO?
She believed two things: first, that the statements of the administration and its surrogates (most likely Rudy Giuliani) pointed to the fact that the EO's text was motivated by a ruse. The ruse was to clothe the EO in the language of nationality in order to conceal a religious test. Giuliani has publically stated this and it is not my intention to call him a liar.
The religious test is in plain sight in the EO. It applies to Moslem majority countries and then, in talking about people applying for exceptional treatment, says “The religion of the individual [must be] a minority religion in the individual’s country of nationality.”
The second belief was that - given the unravelling of the ruse and the revelation of the religious test - the EO was either unjust or unwise, or both.
Is such a test "unamerican", she wondered?
"I do not think a Muslim ban is in our country's interest. I do not think it is reflective of our principles, not just as a party but as a country. I think the smarter way to go, in all respects, is to have a security test and not a religious test." This is an unambiguous statement. It is the statement of a supporter of the notion that it is unamerican to impose a religious test on immigrants. Someone who managed to achieve a popular majority in their election and thus has the authority of a democratic mandate.
The author of this statement is now the leader of the House of Representatives. My guess is Paul Ryan knows a lot more than I do about the meaning of American principles. It is not my intention to call him a liar either.
So perhaps Yates was right to suggest that - from a bipartisan viewpoint - it is unamerican, as well as unjust and unwise, to impose a religious test on immigrants. It is according to many of the sorts of Americans who have standing in these matters.
Hence, she decided it would be wrong for her and the DoJ to defend the EO.
That's the beginning of a discussion of justice. The starting point is to seek to understand the AG's reasoning.
Trump's EO led Yates towards a fundamental discussion of the principles of jurisprudence. What is the law? What is its purpose? Does it have a substance beyond the form of words that are used? Perhaps this is too philosophical for a political environment. And too complex for a message board.
Maybe you have an opinion on that as well.
I guess I should also ask what you mean by "the actual rule of law". Sounds to me like you may be interested in the application of rule by law (mechanical employment of rules, or "law and order" if you prefer) rather than the rule of law (tethering of arbitrary power). No one would call the execution of orders by presidents (Trump, Obama, Bush, whoever) a strong example of the rule of law.
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