On Sally Yates’ Stand and the Session’s Nomination

There are two funny details about the reporting on the stand then Acting Attorney General Sally Yates took against Donald Trump’s Muslim ban, which led to her firing. First, even in a story that explains the process by which Yates decided to order DOJ not to enforce the ban, there’s little consideration of timing.

[O]n Friday, Yates heard a media report that Trump had signed an executive order temporarily barring entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world.

No one from the White House had consulted with Yates or any other senior leaders in the Justice Department. Yates had to decide whether her lawyers could defend Trump’s action in court. She did not even have a copy of the order, and her aides had to go online to find it.

“It was chaos,” said a senior Justice Department official.

[snip]

As acting attorney general Sally Yates struggled to figure out how or whether to defend President Trump’s immigration order last weekend — while protests erupted at airports nationwide, immigrants were denied entry to the United States and civil rights lawyers rushed to court — two events helped crystallize her decision.

The first was a television appearance by Trump on the Christian Broadcasting Network. In an interview, he said that Christians in the Middle East who were persecuted should be given priority to move to the United States because they had been “horribly treated.”

The second was late Saturday night when former New York mayor Rudolph W. Giuliani appeared on Fox News. Giuliani said Trump wanted a “Muslim ban” and asked him to pull together a commission to show him “the right way to do it legally.”

“Those two things put the order in a very different light,” said a senior Justice Department official familiar with her decision. “Trump’s executive order appeared to be designed to make distinctions among different classes of people based on their religion.”

The article cites the CBN interview with Trump — the interview was done on Friday and clips started being released on Saturday — but doesn’t say when Yates saw the interview. But the Giuliani interview was later in the day on Saturday.

By that point, DOJ already was defending the EO, at least against motions for stays, with stories of DOJ attorneys getting calls late at night to contest ACLU and other civil liberties’ groups suits. Where was Yates during that period? Who was calling these attorneys and getting them to courtrooms?

Just as notably, though, such reports rarely raise how Yates’ actions on Monday that led to her firing might have been designed to impact Jeff Sessions’ confirmation process, even while everyone reported on the question Sessions posed to Yates during her own confirmation about refusing illegal orders. Yet that’s precisely what happened, as Democrats delayed the committee vote on Sessions a day, citing the Yates versus Sessions exchange and the Muslim ban.

None of that means Yates’ delayed decision wasn’t the right one to make, one made from a principled stand about the discriminatory impact of this ban. It just seems like a decision that also served to heighten the pressure on Sessions’ own complicity in this bigotry.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

17 replies
  1. SpaceLifeForm says:

    OT: DIOG unredacted and other docs via an apparently new leak.

    https://theintercept.com/series/the-fbis-secret-rules/

     

    Multiple  subarticles.

    One that stands out to me:

     

    https://theintercept.com/2017/01/31/national-security-letters-demand-data-that-companies-arent-obligated-to-provide/

     

    The Intercept obtained the FBI’s rules for national security letters as they are spelled out in two different guides: a document detailing current guidelines for agents using the letters and an uncensored 2011 version of the FBI’s main operating manual, the Domestic Investigations and Operations Guide, or DIOG. Both documents are marked “unclassified” or “for official use only.” The first document has not been previously released. The DIOG has been made public only in heavily redacted form.

     

     

     

  2. Bob In Portland says:

    Of course, Trump’s blanket ban on Syrian refugees leaves Christians in Syria at the mercy of all the various al Qaeda groups, so he’s actually acting in opposition to what he said to the Christians.

    A little off-topic: I’ve been asking for several months now for proof of the “Russian hack” story. emptywheel has been phrasing some stories as if it were fact. I haven’t seen any proof and I look for it every day. Either emptywheel has seen proof and has decided to go along with the neoliberal warmongers based on fact, or she hasn’t seen any facts. This is about the third or fourth time that I’ve asked here.

    emptywheel, proof?

    • emptywheel says:

      What sort of proof do you want? Do you want the non-public info I’ve learned from inside the DNC? is it that you’re not convinced that APT 28 is GRU?

      I admit I’m not sharing all the information I know. I’m trying to get to the point where I can. But I’m not there yet.

      • bevin says:

        If the DNC doesn’t want its “proofs’ made public, perhaps it is because once exposed they will  be seen to be unconvincing.

        On the other hand perhaps the DNC is afraid of precipitating an international crisis over the insignificant matter of its internal communications.

        Or is the DNC afraid of exposing its use of the employees of government agencies for partisan purposes?

        • Bob In Portland says:

          A tell is when the DNC first thought that it was being spied on, instead of allowing the FBI to investigate it went to Crowdstrike. Crowdstrike equals Dmitri Alperovitch equal The Atlantic Council, a fascist think tank.

          This is what it looks like to be lied into a war.

           

      • Bob In Portland says:

        You understand that the DNC has a dog in this fight, right? If that’s your sole source I think you’ve been snookered.

        By the way, news reports indicate that a false flag is going to put NATO in a land war somewhere on Russia’s border. I’m guessing the recent uptick in shelling of Donbas by the Ukrainian army, reported in the west as “Russians attacking Ukraine”, looks like the false flag to start that war.

        I’ve asked myself what was the one thing that Clinton offered the Deep State that Trump couldn’t. And it was war with Russia. And it sure looks like they are about to get it with Trump, whether he’s on board or not.

        Ask yourself why Russia would leave fingerprints. Of course, you could ask yourself why PropOrNot is tossing around fascist slogans like “Heroism Slava!”

        I expect a false flag very soon.

    • John Casper says:

      Bob,

      1.  Is there some other source, besides ew, which makes such complex stuff accessible?

      1.1 If not, could you rank the next four behind ew?

      2. Does this site have a “ready reference” service which enables subscribers to get answers to their questions?

      2.1 If so, how much is it a month?

      3. OT,  does bevin think the Trump Administration–with all its intelligence resources–is cooperating with the DNC to not release the information he wants?

      3.1 Does bevin think that if the Democrats–DNC, affiliated groups–disappear, the world will return to paradise in the Garden of Eden?

      • klynn says:

        The combo of the Page meeting, the GOP desire to ditch the transparency rule on oil and gas foreign payments, the dossier noting a promised 19% and the recent 19.5% sale…timing of the sale irt the Tru-Pu phone call…

  3. Evangelista says:

    I don’t think Ms Yates has, or had, any serious objections to the Executive Order in itself and in its intents.  If she had she would have been foolish to abandon her position, which gave her a driver’s seat from which to mount ‘insufficient’ defences that would get the EO defined to useless, to leave a gelding for Mr. Sessions to try to (to mix a metaphor here) try to put some ‘teeth’ back into.

    Ms. Yates passed on this opportunity.  i suspect because she preferred not to get into kicking butts of idiot career bureaucrat employees with more partisan passion than knowledge of the Constitution and law, who jumped right in to create madhouse confusion by ‘applying’ the EO as if “Imperial law” and as if an Emperor’s decree applicable ex post facto.

    To those who do not know what “ex post facto” is, it is application of a law made today to actions done yesterday, e.g., in the immigration case, applying Trump’s Executive Order to visas already granted and had in hand.

    The partisan stupidities and petty obstructionisms the U. S. ‘s supposedly a-political ‘career’ bureaucrats are currently demonstrating are bringing once discomfiting words like “purge” and “pogrom” a respectable and positive tone…

  4. John Casper says:

    Evangelista,

    Congratulations, one of your six sentences didn’t contain an obvious error.

    FYI, after you “Post Comment,” you get five-minutes to edit.

    Can you submit a photo to dictionaries so they can insert it next to loquacious?

  5. Don Bacon says:

    EW, you used the word “ban” four times. But Trump didn’t use it once.
    “(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas)..” — Executive Order – Protecting the Nation from Foreign Terrorist Entry into the United States, January 27, 2017

    • John Casper says:

      Don,

      When you did your find search on “ban,” you couldn’t miss “Giuliani said Trump wanted a “Muslim ban….”

      Why did you ignore that?

      Don’t you know what “suspend” means, as in “…I hereby suspend entry into the United States…” or did you intentionally omit it, as you did with Giulian’s “ban.”

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