1 00:00:00,040 --> 00:00:03,960 Speaker 1: President Donald Trump fired Acting Attorney General Sally Yates last 2 00:00:04,040 --> 00:00:07,800 Speaker 1: night after she defiantly told Johnice Departments staff members not 3 00:00:07,920 --> 00:00:11,320 Speaker 1: to defend Trump's immigration ban in court because she didn't 4 00:00:11,360 --> 00:00:13,840 Speaker 1: think it was legal. Trump said she had betrayed the 5 00:00:13,840 --> 00:00:17,319 Speaker 1: administration and was removed for quote refusing to enforce a 6 00:00:17,440 --> 00:00:20,480 Speaker 1: legal legal order designed to protect the citizens of the 7 00:00:20,560 --> 00:00:25,080 Speaker 1: United States. Trump replaced Yates with another Obama appointee, Dana Bente, 8 00:00:25,239 --> 00:00:27,880 Speaker 1: the U S. Attorney for the Eastern District of Virginia. 9 00:00:28,280 --> 00:00:31,040 Speaker 1: His first act was to instruct d o J lawyers 10 00:00:31,080 --> 00:00:35,040 Speaker 1: to defend the immigration ban against legal challenges in two 11 00:00:35,680 --> 00:00:40,920 Speaker 1: During yates confirmation hearings, Attorney General nominee Jeff Sessions grilled 12 00:00:41,000 --> 00:00:44,280 Speaker 1: Yates over the importance of saying no to the president. 13 00:00:45,400 --> 00:00:49,560 Speaker 1: The views the President wants to execute our unlawfuls. Should 14 00:00:49,560 --> 00:00:53,960 Speaker 1: the Attorney General or the Deputy Attorney General say no? Senator, 15 00:00:54,000 --> 00:00:56,160 Speaker 1: I believe that the Attorney General or the Deputy Attorney 16 00:00:56,200 --> 00:00:58,760 Speaker 1: General has an obligation to follow the law in the 17 00:00:58,800 --> 00:01:02,600 Speaker 1: Constitution and to give their independent legal advice to the President. 18 00:01:04,120 --> 00:01:07,480 Speaker 1: Joining me is Josh Blackman, Professor at South Texas College 19 00:01:07,480 --> 00:01:11,520 Speaker 1: of Law and adjunct scholar at the Cato Institute Jeff 20 00:01:11,520 --> 00:01:15,120 Speaker 1: The Justice Department's Office of Legal Counsel had reviewed the 21 00:01:15,280 --> 00:01:19,280 Speaker 1: order and signed off on its legality, so was Yates 22 00:01:19,319 --> 00:01:22,279 Speaker 1: within her authority in refusing to defend it in court. 23 00:01:24,040 --> 00:01:28,360 Speaker 1: Yates the decision was frankly unprecedented. Um. She did not 24 00:01:28,520 --> 00:01:31,039 Speaker 1: argue that it was illegal, She did not argue that 25 00:01:31,080 --> 00:01:34,119 Speaker 1: it was indefenseful. She argued that it was not just 26 00:01:34,400 --> 00:01:37,399 Speaker 1: or not wise. And this is frankly not a decision 27 00:01:37,480 --> 00:01:39,720 Speaker 1: for an acting attorney general to make. This is the 28 00:01:39,760 --> 00:01:43,120 Speaker 1: president's call. When confronted with a decision of whether to 29 00:01:43,280 --> 00:01:45,880 Speaker 1: enforce something she didn't think was a wise policy, she 30 00:01:45,959 --> 00:01:48,240 Speaker 1: had one choice. She could have told the president about it. 31 00:01:48,560 --> 00:01:51,880 Speaker 1: If he agreed, wonderful. If he disagreed, then she should 32 00:01:51,880 --> 00:01:54,840 Speaker 1: have resigned and made public the reason for her resignation. 33 00:01:55,360 --> 00:01:57,880 Speaker 1: The reason how the way she went about it, by 34 00:01:58,040 --> 00:02:01,120 Speaker 1: releasing the statement first and basically Wade get fired, was 35 00:02:01,200 --> 00:02:06,080 Speaker 1: largely in defensible. So many people disagree with what you say, 36 00:02:06,160 --> 00:02:10,440 Speaker 1: including Noah Feldman, who has written a column on it. Uh. 37 00:02:10,480 --> 00:02:15,200 Speaker 1: In Yates versus Trump, the constitution wins. Now, what is 38 00:02:15,240 --> 00:02:20,320 Speaker 1: the difference between what the attorney general what attorney general's 39 00:02:20,360 --> 00:02:23,640 Speaker 1: position is in power as opposed to an acting attorney general. 40 00:02:23,680 --> 00:02:26,239 Speaker 1: Aren't they stepping into the shoes of the attorney general 41 00:02:26,240 --> 00:02:29,840 Speaker 1: for the time being, there's no difference. Um, there's frankly 42 00:02:29,880 --> 00:02:32,880 Speaker 1: no difference with respect to pressor Feldman. The attorney general 43 00:02:32,960 --> 00:02:35,840 Speaker 1: serves at the president's pleasure, and if for whatever reason, 44 00:02:35,880 --> 00:02:40,480 Speaker 1: the attorney general thinks that something is improper, the duties resigned. 45 00:02:40,760 --> 00:02:43,120 Speaker 1: And there's a very famous example of this in the 46 00:02:44,200 --> 00:02:47,920 Speaker 1: three Um. President Nixon is famously instructed as attorney general 47 00:02:48,000 --> 00:02:53,040 Speaker 1: to fire a special prosecutor. Um, the attorney general refused 48 00:02:53,160 --> 00:02:55,400 Speaker 1: and resigned, And that was a correct way of going 49 00:02:55,400 --> 00:02:58,359 Speaker 1: about this. Efforts to compare Trump's decision to Nixon or 50 00:02:58,400 --> 00:03:00,960 Speaker 1: simply an app and Nixon's the people do the right 51 00:03:01,000 --> 00:03:04,200 Speaker 1: thing and resigned. Here Yates refused to resign and said, 52 00:03:04,240 --> 00:03:06,280 Speaker 1: basically waited to be slaughtered so she can make herself 53 00:03:06,280 --> 00:03:11,400 Speaker 1: into a political martyr. So in that case, Archibald Cox 54 00:03:11,520 --> 00:03:15,120 Speaker 1: refused to back off in his investigation of the president, 55 00:03:15,840 --> 00:03:18,920 Speaker 1: And in this case she refused to back off in 56 00:03:19,080 --> 00:03:24,000 Speaker 1: her defiance of the president and his order, in her 57 00:03:24,040 --> 00:03:28,200 Speaker 1: belief that the order was illegal. So why wasn't she 58 00:03:28,560 --> 00:03:31,680 Speaker 1: in authority there. Oh my god, there's such a big difference. 59 00:03:31,680 --> 00:03:35,280 Speaker 1: And this is one that Noah Cox completely allied. Haws 60 00:03:35,440 --> 00:03:38,400 Speaker 1: was a special prosecutor who who could only be fired 61 00:03:38,560 --> 00:03:41,800 Speaker 1: for basically breaking the law. The Attorney general can be 62 00:03:41,840 --> 00:03:44,320 Speaker 1: fired at will. If the President doesn't like what she's wearing, 63 00:03:44,400 --> 00:03:47,520 Speaker 1: he can fire her. This is an absolutely dissimilar situations. 64 00:03:47,720 --> 00:03:49,960 Speaker 1: The entire point of the Special Council was that he 65 00:03:49,960 --> 00:03:53,360 Speaker 1: can only be fired if he did something wrong. Um. 66 00:03:53,400 --> 00:03:56,440 Speaker 1: In contrast, Yates could be fired for whatever reason. Um. 67 00:03:56,480 --> 00:03:59,360 Speaker 1: So that the actually reading Seliman's pieces, he said to me, 68 00:03:59,440 --> 00:04:02,080 Speaker 1: it's it doesn't make this point at all, but they're 69 00:04:02,080 --> 00:04:05,160 Speaker 1: completely the similar situations. Well, no, I don't disagree that 70 00:04:05,200 --> 00:04:09,360 Speaker 1: she can be fired, but in her duty she went 71 00:04:09,640 --> 00:04:13,000 Speaker 1: she said she that her duty as general Attorney General 72 00:04:13,160 --> 00:04:15,520 Speaker 1: was different from that of the Office of Legal Counsel 73 00:04:16,120 --> 00:04:20,840 Speaker 1: because she made that what she wrote in that letter 74 00:04:20,880 --> 00:04:24,000 Speaker 1: about her duty to the wisdom of of the President's actions, 75 00:04:24,040 --> 00:04:26,160 Speaker 1: she made up that's never been the duty of the 76 00:04:26,160 --> 00:04:28,760 Speaker 1: Attorney general ever. And if she wants to self impost 77 00:04:28,839 --> 00:04:30,920 Speaker 1: that duty, then she can resign because that's not what 78 00:04:31,000 --> 00:04:34,839 Speaker 1: she was appointed for. So if she's examining whether or 79 00:04:34,880 --> 00:04:39,880 Speaker 1: not the ban is legal or illegal. She doesn't get 80 00:04:39,920 --> 00:04:44,240 Speaker 1: to examine whether it was based on a religious reason 81 00:04:44,360 --> 00:04:48,880 Speaker 1: or not, which would make it illegal. If she had 82 00:04:48,920 --> 00:04:51,440 Speaker 1: said the law is illegal and I refused to defend it, 83 00:04:52,279 --> 00:04:54,560 Speaker 1: then she should have resigned. She can tell the president 84 00:04:54,600 --> 00:04:58,000 Speaker 1: that's her determination. In fact, it seems her determination was 85 00:04:58,000 --> 00:05:00,000 Speaker 1: was that odds with what the Office of Legal count 86 00:05:00,000 --> 00:05:02,960 Speaker 1: full determine. But what you can do is in subordination, 87 00:05:03,400 --> 00:05:05,880 Speaker 1: and in case of in subordination, the only remedy is 88 00:05:05,920 --> 00:05:09,000 Speaker 1: to fire her. The constitution charges the president with faithfully 89 00:05:09,000 --> 00:05:12,120 Speaker 1: executing the laws. If his subordinates get the way, the 90 00:05:12,160 --> 00:05:15,520 Speaker 1: only remedy is removal. Okay, now I'm not. I'm not. 91 00:05:15,600 --> 00:05:18,039 Speaker 1: I'm not. I don't disagree that he had the right 92 00:05:18,200 --> 00:05:20,839 Speaker 1: to remove her. Not to do the duty. The duty 93 00:05:20,880 --> 00:05:24,600 Speaker 1: to remover if it subordinate is impeding the president's obligations 94 00:05:24,600 --> 00:05:27,479 Speaker 1: to enforce the laws. The only options removed. This wasn't 95 00:05:27,520 --> 00:05:31,760 Speaker 1: a policy call, but many people who have looked at 96 00:05:31,800 --> 00:05:35,160 Speaker 1: that law, many constitutional scholars who have looked at the 97 00:05:35,240 --> 00:05:39,560 Speaker 1: executive order, say that it is doesn't comply with the law, 98 00:05:39,600 --> 00:05:44,400 Speaker 1: that it's unconstitutional. So in that respect, doesn't the Attorney General, 99 00:05:44,480 --> 00:05:48,719 Speaker 1: who is the person who is charged with standing for 100 00:05:48,760 --> 00:05:52,039 Speaker 1: the rule of law in this country, have to say 101 00:05:52,480 --> 00:05:55,560 Speaker 1: I don't find this to be constitutional. I'm not going 102 00:05:55,560 --> 00:05:59,480 Speaker 1: to enforce it. The Justice departments duty to defend a 103 00:05:59,520 --> 00:06:02,440 Speaker 1: law if there's a credible argument that it's constitutional. The 104 00:06:02,480 --> 00:06:05,479 Speaker 1: government depends a lot of stupid laws they're probably on constitutional, 105 00:06:05,560 --> 00:06:08,320 Speaker 1: they defend them anyway. Here there's a very good argument 106 00:06:08,320 --> 00:06:10,960 Speaker 1: why it's a constitutional I personally think it's it's suspect, 107 00:06:11,080 --> 00:06:13,240 Speaker 1: But I think if I were a lawyer work j 108 00:06:13,760 --> 00:06:16,960 Speaker 1: I could put together a decent brief arguing why, um, 109 00:06:17,200 --> 00:06:19,760 Speaker 1: why why the laws void? That isn't what happened here. 110 00:06:19,800 --> 00:06:22,000 Speaker 1: She didn't say it was unconstitutional. She said she thinks 111 00:06:22,000 --> 00:06:23,839 Speaker 1: there's reasons to think of court will strike it down. 112 00:06:24,080 --> 00:06:27,520 Speaker 1: That's not the reason to abnegate your duty, um, And 113 00:06:27,520 --> 00:06:29,960 Speaker 1: and all these scholars who are looking at this question 114 00:06:30,040 --> 00:06:31,960 Speaker 1: or forgetting the role of a government lawyer is to 115 00:06:32,080 --> 00:06:35,039 Speaker 1: defend the law to the best of their ability. And 116 00:06:35,560 --> 00:06:38,240 Speaker 1: let me just follow up on one point, which is 117 00:06:38,680 --> 00:06:42,560 Speaker 1: that we heard Jeff Sessions ask her, and we also 118 00:06:42,600 --> 00:06:45,200 Speaker 1: we heard senators asked Jeff Sessions if he would have 119 00:06:45,680 --> 00:06:49,159 Speaker 1: if the he would disagree with the president and on 120 00:06:49,320 --> 00:06:53,359 Speaker 1: points of law. So isn't the attorney general there to 121 00:06:54,200 --> 00:06:57,200 Speaker 1: represent the law, the rule of law in this country. 122 00:06:57,320 --> 00:07:02,799 Speaker 1: And if what the president says is incorrect legally against 123 00:07:02,800 --> 00:07:06,599 Speaker 1: the law, to not go along with him or her? No, No, 124 00:07:07,560 --> 00:07:10,760 Speaker 1: the president can ask the opinion of their cabinet members. 125 00:07:11,360 --> 00:07:14,200 Speaker 1: He did this, she said, No, the president has agreed. 126 00:07:14,960 --> 00:07:17,680 Speaker 1: She doesn't serve as commander in chief. And if whatever reason, 127 00:07:17,720 --> 00:07:20,760 Speaker 1: the president's duty to faithfully execute the laws conflicts with 128 00:07:20,800 --> 00:07:23,880 Speaker 1: whatever judgment call of an Obama holdover, then no, she 129 00:07:23,920 --> 00:07:26,560 Speaker 1: has no duty to be insubordinate. Uh, this is not 130 00:07:26,640 --> 00:07:28,680 Speaker 1: the first time a government official is put in a 131 00:07:28,720 --> 00:07:31,600 Speaker 1: tough spot and the correct choice is resignation. And then 132 00:07:31,640 --> 00:07:35,480 Speaker 1: explain the reason why not simply ignoring your duty? All right? 133 00:07:35,480 --> 00:07:37,360 Speaker 1: As you attorney generally, Josh, we're gonna have to leave 134 00:07:37,360 --> 00:07:40,680 Speaker 1: it there. That's Josh black and, professor at South Texas 135 00:07:40,760 --> 00:07:41,679 Speaker 1: College of Law.