Acting Attorney General Sally Yates has instructed Justice Department lawyers not to defend President Trump’s executive order restricting travel and immigration from many Muslim-majority countries, telling them she is not convinced it is lawful.
Yates is a holdover from the Obama administration until Trump’s nominee for attorney general, Alabama Sen. Jeff Sessions, is confirmed by the Senate, which is expected to happen this week.
But in the interim, Yates made clear she has doubts about the legality of Trump’s decision to block travelers from Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia for 90 days; to suspend new refugee admissions; and to ban the acceptance of Syrian refugees indefinitely.
Yates wrote in a letter to lawyers currently handling cases filed to block the ban that the department will not defend cases currently pending across the country as long as she is in charge:
“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.”
Justice lawyers had been in courts all over the country this past weekend on the opposing side of refugees and travelers, often making weak arguments and stating they didn’t have enough information about the executive order and its legal underpinnings.
There was chaos — and protests — across the country over the weekend as the ban went into effect, with many people with valid visas and legal U.S. residents with green cards were being denied entry and threatened with deportation. On Saturday night, Federal Judge Ann Donnelly issues a stay on the deportations of valid visa holders.
It’s very unusual for the Justice Department to refuse to defend a law or an executive order, though it isn’t unprecedented. During the Obama administration, for example, top officials decided not to defend the Defense of Marriage Act that defined marriage as between one man and one woman. The Supreme Court eventually ruled in favor of same sex marriage.
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