DOJ Won’t Defend Trump Refugee Ban Executive Order in Court

The Department of Justice announced today it would not defend the legality of Donald Trump’s executive order temporarily banning refugee entry and virtually all travel from seven countries of concern.

In a letter to DOJ lawyers, acting Attorney General Sally Yates wrote that the department would not defend the executive order, saying that while the Office of Legal Counsel is charged with the “narrow question” of whether an executive order is “lawful on its face and properly drafted” and the DOJ’s Civil Division is charged with “advancing reasonable legal arguments that can be made supporting an Executive Order,” her role as head of the DOJ was “different and broader.”

My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts, she wrote. “In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right.”

Yates concluded that she was not convinced that defending this executive order was “consistent with these responsibilities” or lawful, and that as long as she is acting Attorney General the DOJ would not present legal arguments defending the EO until she was convinced it was appropriate.

Yates, a holdover from the Obama administration, was asked by the Trump White House to take the position of acting Attorney General. Nevertheless, Trump took to Twitter earlier today to complain that he had an “Obama A.G.” because of Democrat obstruction. Although CNN reports the White House could choose to dismiss Yates, there’s no indication of that yet. A vote on Trump attorney general nominee Jeff Sessions is expected in the Senate Judiciary Committee tomorrow.

At the Washington Post‘s Volokh Conspiracy Jonathan Adler writes that to his knowledge Yates’ move is unprecedented, and points to a 2011 lecture by potential Supreme Court nominee William Pryor about when it’s appropriate for an executive branch official to refuse to enforce and defend the law.