Lawyers Alan Dershowitz and Jonathan Turley took turns taking swipes at former Acting Attorney General Sally Yates’ decision to inform the lawyers at the Department of Justice to not defend President Trump’s executive order on immigration last night. Her letter noted that the order went opposite to the department’s mission of pursuing justice, and that she wasn’t convinced the order was legal. Hours after she drafted the letter, President Trump fired her. The new acting attorney general, Dana Boente, was sworn in at 9 P.M. last night and has since rescinded Yates’ directive.
On MSNBC’s Morning Joe, George Washington University law professor Jonathan Turley added that this was not a constitutional crisis, nor was it a “Monday Night Massacre,” as CNN noted last night. He also said that the president was well within his authority to fire Yates.
“On the constitutional basis, the law favors Trump,” he said. He also noted numerous times that he doesn’t know the motivations behind Yates’ action, stating the letter is based in part on statements made by President Trump on the campaign trail.
There is a longstanding DOJ position that motivational evidence in rendering a legal opinion is completely immaterial.
“What the president said on the campaign trail will not be viewed at all relevant by the court as to what was—what is the legality of the executive order,” Turley said. “The whole letter was rather curious, as you say. And yes, he had the right to fire her,” he added.
Now, Alan Dershowitz had a different conclusion regarding Yates’ motivations. He feels that she made a political opinion, not a legal one, with this letter—and that she wanted to be a “holdover hero.”
With Sen. Jeff Sessions’ (R-AL) attorney general nomination delayed due to Democratic obstruction, Sally Yates was serving as acting AG until his confirmation, which is guaranteed once the Judiciary Committee holds a vote. That procedural vote is set to be overcome tomorrow at 10:30 A.M.
Dershowitz said that if Yates felt that way, she should have resigned. The attorney general’s job is not to comment on policy, it’s to enforce the law. He noted that there are portions that are probably constitutional and lawful—and she could have given a nuanced analysis regarding its defense—but she decided she wanted to become a liberal martyr.
“She has no right to refuse to enforce the law because she disagrees with the policy. Her obligation was to resign,” he said.
Both men were against this executive order and Dershowitz noted that the rollout was terrible, but it’s not the attorney general’s job to decide whether the law is wise or just. As long as it’s constitutional and lawful, you defend it—regardless of how you feel about the policy behind it.