Yates Letter Points to Evidence Showing EO Unconstitutional

When Acting Attorney General refused to defend an executive order, she was taking in to account the evidence given prior to the order that the Trump campaign intended to clamp down specifically on Muslim immigration to the United States.

February 1, 2017

Cross posted from Just Security.

As Acting Attorney General, Sally Yates dropped a bombshell late Monday, telling Justice Department employees that the DOJ would not defend Trump’s executive order on “immigrants and refugees from certain Muslim-majority countries.” She was not convinced that the order was “lawful” or consistent with the DOJ’s  “solemn obligation to always seek justice and stand for what is right.” Within hours, President Trump went shopping for another Acting Attorney General, and fired Yates.

One thing that lives on is the now-famous Yates Letter. In it, the Acting A.G. noted that the Office of the Legal Counsel – which had reviewed and cleared the controversial order – was charged with the narrow task of ensuring that the order “lawful on its face and properly drafted.” OLC had not, however, taken “account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose.”

This is an important point. As David Cole has explored at length here and here, and as Michael Price & I argued over at Lawfare in the context of NSEERS, there is ample evidence that the Trump campaign intended to clamp down specifically on Muslim immigration to the United States. There is some question, as Jay Shooster noted, as to whether a court would consider statements made during a political campaign as relevant to the issue of whether the administration intended to target people on the basis of their religion.

But of course, Trump and his surrogates have said plenty to make it clear that Friday’s order was in fact the Muslim ban promised during the campaign and Yates certainly seems to think these are relevant. Potentially relevant recent statements – of varying clarity and import – are listed below: 

  • Hours before signing the order, Trump told the Christian Broadcasting Network in an exclusive interview on the topic that the United States would prioritize Christian refugees over Muslims. Indeed, its hard to argue that the order isn’t directed at Muslims when it applies only to Muslim countries, but allows exceptions for members of minority religious groups (i.e. non-Muslims).

  • When signing the order, Trump read out its title “Protecting the Nation from Foreign Terrorist Entry into the United States,” looked up and said “We all know what means …

  • The day after the executive order was signed, Trump surrogate Rudy Giuliani went on Fox News to tell viewers how the ban came about: “So when [Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” According to Giuliani, he put together a “commission,” which came up with the idea of focusing on danger rather than religion; the ban was based “on places where there are substantial evidence that people are sending terrorists into our country.” Of course, as many have pointed out, the countries affected by the ban have hardly been a source of terrorist attacks in the United States.

  • The day after the order was signed, for what it’s worth, the son of Trump’s national security advisor, who had previously been part of the President’s transition team, tweeted:

He subsequently deleted his twitter account.

Yates obviously considered “statements made by an administration or it surrogates close in time to the issuance of an Executive Order” of relevance to her decision. We have no way of knowing whether she was basing that solely on statements in the public record, or internal matters to which she or her staff had also been privy. Now that she is relieved of her responsibilities, perhaps we may hear more from her. Perhaps members of the House or Senate Judiciary Committee might see fit to hold a public hearing.