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Post by robeiae on Feb 1, 2017 8:59:45 GMT -5
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Post by Optimus on Feb 1, 2017 11:22:33 GMT -5
Yeah, reading his take on it makes her sound less like a virtuous defender of American values and more like Kim Davis.
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Post by Amadan on Feb 1, 2017 11:37:21 GMT -5
I did have qualms when I first heard the news - "Wait, the AG can just tell the Justice Department to not defend an Executive Order because it might be unconstitutional?" I mean, isn't the point of defending something in court that you find out whether or not it's constitutional? And lawyers often have to provide a vigorous legal argument that goes against their personal feelings.
Of course a lawyer has a right to resign if what she's asked to do offenders her on principal. But "Defend the President's actions in court" is part of the AG's job description. Either she should have done her job or resigned.
I also agree with Dershowitz that it was a tactically stupid move for Yates. She basically asked her boss to fire her for refusing to comply. She'd have looked much more heroic and principled if she'd resigned in protest.
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Post by Deleted on Feb 1, 2017 15:56:10 GMT -5
I rarely agree with Dershowitz, and this is no exception.
if she'd simply resigned, it would not have brought as much attention to the issue as it did, thus increasing the likelihood the order might be eventually modified rather than enforced -- I am certain that's at least part of why she did what she did. (Trump being her boss, she knew she'd lose her job for it.)
Moreover, as Sessions hammered in at her confirmation hearing, an attorney general is supposed to stand up to a president's wrongful orders, should he make them, not simply either slavishly obey or quietly resign.
I didn't resign when my boss wanted me to do something I felt was wrong. I flatly refused, argued, and kept hammering until I got my point through. If he'd chosen to fire me instead, that was the risk I was taking. But I wasn't going to quit. I just wasn't going to do what he asked.
To me and many of my fellow attorneys, Yates is a hero. Your mileage may differ.
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Post by Optimus on Feb 1, 2017 16:09:56 GMT -5
I'm a bit torn on this one. I agree with Dershowitz that she didn't really have base her argument on the appropriate legal standing to refuse to defend it in court, and she should have probably waited for the Constitutional issues to have been cleared up. So, her position comes across as more of a moral stance than a legal one. That's why what she did smacks just a bit of Kim Davis, to me.
However, I think if she'd just resigned, that wouldn't have emphasized the point enough. The lead management of the State Department all resigned, but that only got coverage in the news cycle for about a day or two. Yes, they look like the are people standing up for their values, but that's about it.
The AG getting fired does a bit more in the "optics" (God, I hate that term) of the situation. Not only does she come off as someone standing up for her values but, given how detested Trump is, there's added value in that he comes off like a totalitarian dick for firing her. Her getting fired is more win-win, at least from the POV of the Democrat narrative.
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Post by Deleted on Feb 1, 2017 16:22:30 GMT -5
I'm a bit torn on this one. I agree with Dershowitz that she didn't really have base her argument on the appropriate legal standing to refuse to defend it in court, and she should have probably waited for the Constitutional issues to have been cleared up. So, her position comes across as more of a moral stance than a legal one. That's why what she did smacks just a bit of Kim Davis, to me. However, I think if she'd just resigned, that wouldn't have emphasized the point enough. The lead management of the State Department all resigned, but that only got coverage in the news cycle for about a day or two. Yes, they look like the are people standing up for their values, but that's about it. The AG getting fired does a bit more in the "optics" (God, I hate that term) of the situation. Not only does she come off as someone standing up for her values but, given how detested Trump is, there's added value in that he comes off like a totalitarian dick for firing her. Her getting fired is more win-win, at least from the POV of the Democrat narrative. I agree with most of this. I do think she could have made a stronger case than she did for why she felt the order was unlawful -- judge Ann Donnelly and the ACLU did, among others. But in her defense, things did go down terribly quickly and chaos was erupting at airports -- it's not like the order was going to be effective next month or even next week. Given that she was being told to enforce it instantly, she had to act instantly, which probably didn't leave her lots of time for artful drafting. We could call them "opty-cs", in honor of you.
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Post by Amadan on Feb 1, 2017 16:39:34 GMT -5
I don't know if you are familiar with Ken White at Popehat, but he's a fairly popular law blogger. Here is his take on it: Desperation for a Hero
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Post by robeiae on Feb 1, 2017 17:27:27 GMT -5
"Imperfect hero." Good term.
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Post by celawson on Feb 1, 2017 18:32:24 GMT -5
I absolutely agree with Dershowitz, and with Ken White in Amadan's quote. I also don't think there is any funny or conflicting issue with what Sessions asked Yates during her confirmation and what she did here. Sessions was clearly referring to lawfulness. With the latitude the Executive Branch gets in terms of defending our borders and controlling immigration, and with the complexity of the EO, Yates' blanket condemnation of the entire EO can't fly. Is there any information out there that she analyzed the EO and tried to counsel Trump on its legality? It just seems to me (no I am not a legal expert) that she didn't do her job but instead, chose to do the highly dramatic thing. And now she's outta there. I would really like to know if she at least tried to convince the administration to at least avoid the more problematic parts of this.
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Post by robeiae on Feb 6, 2017 9:39:15 GMT -5
On the most recent court activity: www.cnn.com/2017/02/04/politics/doj-appeals-travel-ban-ruling/Here is Robart's ruling: www.documentcloud.org/documents/3446391-Robart-Order.htmlThat's a seriously weak finding, imo. It's pretty much devoid of any actual legal thought re the "merits" of the case. And by my reading, Robart is implying that the Obama Admin necessarily crossed lines, as well. Here's the emergency brief filed by Justice in response: cdn.ca9.uscourts.gov/datastore/general/2017/02/04/17-35105%20motion.pdfI think the issue of standing is a major problem, one that Robart fails to adequately justify. The "irreparable harm" that the States of Washington and Minnesota will suffer because of the EO just doesn't doesn't work, as he describes it. He actually cites "tax bases" in this regard (images of Kelo are dancing through my head). And Nowhere does he explain why the States are likely to prevail; he just states that to be the case. I don't like Trump's EO. And I think that parts of it can fairly be challenged. But this TRO by Robart is, I think, way over the line. The President has a lot of latitude--per actual law--with regard to non-citizens entering the country. Supposing that this isn't the case and challenges to Trump's EO would likely succeed in toto is ridiculous, imo. Some parts of the EO are legal. They'e constitutional. The only way to legitimately reverse those parts is at the ballot box. And challenges to any EO need to be handled properly, because this stuff matters not only in the present, but also into the future.
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Post by Amadan on Feb 6, 2017 9:55:48 GMT -5
Yes, I am afraid they're giving ammunition to the right wings ranters about "activist judges" - the judges seem to be ruling based on past practices and what they would like the law to be, rather than what the law actually allows the President to do, however appalling one may find it.
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Post by robeiae on Feb 7, 2017 9:20:56 GMT -5
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Post by robeiae on Feb 9, 2017 18:15:39 GMT -5
FYI, twitter reports are saying that the Ninth Circus has ruled against the government and refused to grant an emergency stay. If that's the case, it will be interesting to read the ruling. Hopefully, it has something more in it than the nothing ruling from Robart.
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Post by Deleted on Feb 9, 2017 18:28:39 GMT -5
I'm waiting anxiously for it.
I have to admit I have not read Robart's ruling in full yet -- it's been a busy week for me -- which is why I have not commented on it, btw. I feel a certain responsibility when it comes to legal issues to not come down ranting on legal stuff without having read and given some serious thought to them. Here, I have an opinion about the executive order itself, but hadn't formed one on the content of Robart's order. (I suppose I could have read it today, since I was hunkered in and being not as productive as I might have been, but now it's all going to hinge on the Ninth Circuit ruling, so may as well wait.)
This weekend, I'll read both.
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Post by Deleted on Feb 9, 2017 18:34:42 GMT -5
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