(05-15-2017 07:59 AM)tanqtonic Wrote:  

(05-14-2017 04:52 PM)RiceLad15 Wrote:  

(05-14-2017 04:26 PM)tanqtonic Wrote:  

(05-14-2017 03:50 PM)RiceLad15 Wrote:  

(05-14-2017 02:45 PM)tanqtonic Wrote:  Been thought-niggling on this statement for awhile. Perhaps you would like to mull over some of these observations regarding Yates and her decision of non-defense. Seems to cut deeply against some of the implications and assertions made on your response.

And dives into why her original response was actually quite unusual.

Just tossing it up as food for thought.

https://www.lawfareblog.com/quick-though...-statement

https://assets.documentcloud.org/documen...-Yates.pdf

You posted the wrong Goldsmith blog post, IMO.

You should have posted the one he wrote after her hearing. In short, her arguments about why she would not defend the EO change, and Goldsmith has no issues with them, as opposed to her rationale in the January letter. Basically in the hearing she explained that she viewed the EO to be unlawful, but in the letter she did not explicitly state that.

https://www.lawfareblog.com/yates-changes-her-tune

The second article points out somewhat radical differences between her letter and her testimony.

Further he quotes another as stating: “As long as the President’s view is that it’s lawful, of course the Department of Justice will defend its legality in court because the President gets the final word on how the Executive branch and the Department in particular, what position they take in court.” On this view, which is probably right, Yates views about the legality of the EO were technically irrelevant.

The quote being from Marty Lederman.

Martin "Marty" S. Lederman was a Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel, appointed by President Obama in January 2009. He previously served as an Attorney Advisor in OLC from 1994 to 2002.

The differences in Yates' expiration I mentioned aren't really radical, it's the outcomes that are radically different. Goldsmith explicitly states how the subtle differences cause the radically different outcomes, because not being convinced of the legality of the EO creates a drastically different outcome than being convinced of the illegality of it. And that was the major change in Yates' tune.

And to your comment from Lederman, that hits at the heart of the matter, IMO. And that is the situation (an AG not being convinced that the POTUS has crafted a legal EO) that Senators like Sessions prodded Yates on in her original confirmation hearing. They explicitly wanted her to explain whether she would follow orders that a POTUS gave her, if she knew that they were unlawful. I think there is video of the confirmation in 2015 when they wanted her to explain that she would not follow orders if they were illegal.

To me, this situation is similar to a CEO telling an accountant to cook the books and the accountant saying no. The CEO can go ahead and fire them, but that is not the right course of action.

Lad, I would agree with your asessment if it was crystal clear that the EO was unlawful. Sorry, that is not the case. Read the dissent to the en banc in the 9th circuit. For background, that tone of dissent is highly unusual for such a supposed 'clear cut case'.

When there is any possibility of the issue being lawful, the duty of the DOJ is to defend it and/or enforce it. The problem is that you really dont seem to understand that the issue passed that iota; if you were more aware of it, you would be able to compare many other times that the DOJ defended even dodgier positions based upon that default policy.

But instead, some in certain media have seized upon a singular incident and made it the guiding light of what is all correct and awesome. But when you have a tad deeper background in the subject, pretty much everyone recognizes that Yates' actions/inactions were horribly singular in pretty much the opposite direction --- especially when viewed by the subject played and tone of the dissents in the case.

But its a free country -- believe what you wish. But just saying that the issue that Yates went explicitly Don Quixote on (after the fact mind you) is in no way the clear cut issue that the DOJ is expected to act as a roadblock on.

I was not stating that it was crystal clear that the EO was unlawful, but I see how your interpretation of that issue drives a wedge into the situation that is being discussed.

I was explaining the difference between the outcomes of Yates' two explanations (the letter and the testimony). Per her second explanation and rationale, and her evaluation that the EO was unlawful, her rationale to not defend it was sound, per Goldsmith. Yates came to the conclusion and explained that it was unlawful, and ergo, indefensible.

I'm not trying to wade into the validity of her first decision (the evaluation of the EOs lawfulness) because that is out of my league. However, the second decision (her ability to have the DOJ not defend it) appears to be a bit more cut and dry, if you take Yates' argument that the EO was unlawful (which was made clear in her testimony).

So, you're kind of moving the goal posts in this discussion. I really have mostly focused on Yates' decision to not enforce a law she felt was unlawful - which is why I keep bringing up the Session's line of questioning and the second Goldsmith article. They wanted to make sure that an acting AG would, if they believed a law was unlawful, not defend or enforce it.

I understand the desire to discuss the actions that lay the foundation for that situation we are in, where the acting AG doesn't defend an EO. And to parse the decision as to whether or not the EO actually was unlawful - but again, that's a bit out of my purview. However, wouldn't the multiple rulings by the courts indicate that it likely is the case that the EO was unlawful, regardless of how the ruling was written?

I kind of feel like we're discussing two different things here.