Yates Criticized for Conflating Public Policy and Law

Multiple legal experts have criticized former acting Attorney General Sally Yates for allowing her personal views of President Trump’s executive order on refugees and travel to the United States to interfere with the Justice Department’s role of defending what is lawful.
Jack Goldsmith at Lawfare granted that Yates was obviously in an extraordinarily difficult position given her inherent differences with the administration, but those were not an excuse to insert the DOJ into judging the merit of a particular policy.
[Yates] says that [the White House Office of Legal Counsel] did not address whether any policy choice embodied in an Executive Order is wise or just. True, that is not OLC’s job. But nor is it the Attorney General’s—at least not if the President has decided that the policy choice is wise and just. The Attorney General can personally advise the President about an EO’s wisdom and justness. And the Attorney General can decide to resign if she thinks the President is pursuing a policy so unwise and unjust as to be morally indefensible. But an Attorney General does not typically (I cannot think of a counterexample offhand) refuse to defend an Executive Order in court because she disagrees with the policy basis for the EO.

The Attorney General has discretion to make some DOJ decisions based on what she thinks is just and right. But in the context of deciding whether to defend a presidential EO, the question for Yates is reasonable legality, not what is just and right.

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