Former acting Attorney General Sally Yates on Monday defended her decision not to enforce President Donald Trump’s original executive order barring immigrants from seven Muslim-majority countries, arguing it was “unlawful” and “inconsistent with the principles of the Department of Justice.”
On Capitol Hill to testify before a Senate Judiciary Committee subcommittee investigating Russia’s interference in the U.S. election, Yates was instead pressed by Sen. John Cornyn (R-TX) about her refusal to enforce the Trump administration’s so-called travel ban.
“What is your authority to overrule the Office of Legal Counsel?” Cornyn asked Yates.
Yates said that the Office of Legal Counsel looks only at the face of an executive order to determine “whether there is some set of circumstances under which at least some part of the executive order may be lawful.” She added that the office does not look at statements that may bear on the “intent and purpose” of an executive order, which she did.
“I don’t know how you can say it was lawful and say that it was within your prerogative to refuse the court of law and leave it to the court to decide,” Cornyn said later in the exchange.
“Senator, I did not say it was lawful,” Yates said. “I said it was unlawful.”
Cornyn tried to frame Yates’ decision as a partisan move made by a former Obama administration official that broke with the DOJ’s “longstanding tradition of defending a presidential action in court if there are reasonable arguments in its favor.”
“The civil division of the Department of Justice will defend an action of a President or an action of congress if there is a reasonable argument to be made,” Yates told Cornyn. “But in this instance, all arguments have to be based on truth. Because we’re the Department of Justice. We’re not just a law firm.”
Noting that he voted for her confirmation, Cornyn said he found it “enormously disappointing” that she overruled the Office of Legal Counsel and countermanded the executive order because she “happen[ed] to disagree with it as a policy matter.”
Yates referred back to her 2015 confirmation hearing, recalling an exchange in which then-Alabama senator Jeff Sessions asked if she would decline to act “if the President asked me to do something that was unlawful or unconstitutional and one of your colleagues or even that would reflect poorly on the Department of Justice.”
“I looked at this,” Yates went on. “I made a determination that I believe it was unlawful. I also thought that it was inconsistent with principles of the Department of Justice. And I said no. And that’s what I promised you I would do. That’s what I did.”
Sessions is now Trump’s Attorney General.