Not since the 1956 fall TV season pitted Steve Allen against Ed Sullivan on Sunday night prime time has there been such a brutal head-to-head video matchup—oral argument in the Fourth Circuit in International Refugee Assistance Project v. Trump streaming at the same time as former acting Attorney General Sally Yates’s testimony before a panel of the Senate Judiciary Committee.
At issue in the two proceedings—on the one hand, Trump’s first “travel ban” order on January 27 and, after emergency litigation stopped it, a second, sanitized order on March 6, also blocked by two different federal judges; on the other, the fall of General Michael Flynn, Trump confidant and national-security adviser disgraced for lying about his contacts with Russia —is the very idea of government as process rather than princely will. Both stories dramatize the casual contempt of Trump and those around him for the Constitution, the law, and the procedures that guard both.
This came into sharp focus when Republican Senators Ted Cruz and John Kennedy—seemingly eager to defend the administration—tried to change the issue from Trump’s actions to Yates’s. As acting attorney general, she had refused to defend the travel ban until Trump fired her.
“Who appointed you to the United States Supreme Court?” Louisiana Senator John Kennedy asked her, implying that she was required to obey Trump unless the Court voided he order. But the attorney general is not an executive flunky; she is the nation’s highest executive law officer. It is peculiarly her duty to make independent judgments about law.
The order had been approved as to “form and legality” by the Department of Justice’s Legal Counsel; nonetheless, on the night it was issued, Yates ordered DOJ lawyers to stand down, saying that she was not “convinced that the executive order is lawful.”
Texas Senator Ted Cruz asked, “In the over 200 years of the Department of Justice history, are you aware of any instance in which the Department of Justice has formally approved the legality of a policy, and three days later, the attorney general has directed the department not to follow that policy, and to defy that policy?”
“I'm not,” Yates admitted. “But I'm also not aware of a situation where the Office of Legal Counsel was advised not to tell the attorney general about it until after it was over.”
The White House had instructed low-level officials not to tell the chief law officer what they were up to.
In fact, said Yates, “not only was department leadership not consulted here and beyond department leadership, really the subject matter experts, the national-security experts, not only was the department not consulted, we weren't even told about it. I learned about this from media reports.”
The picture of the early days of the administration is of a tiny, toxic cabal, fundamentally dismissive of constitutional or legal constraint. Congressional security statutes, the established procedures of the executive branch, the legal responsibilities of cabinet secretaries, the legal duties of military and intelligence officials, were cobwebs to be brushed aside.
It’s not that, to the White House, law didn’t matter.
It’s that it didn’t exist.
The same is true with the Flynn matter. Yates learned that Flynn had lied to White House officials, including Vice President Mike Pence, about his contacts with Russian Ambassador Sergey Kislyak. When she brought this to the attention of White House Counsel Donald McGahn, she said, his response was to ask, “why does it matter to DOJ if one White House official lies to another White House official?”
Yates said she had to explain that lying about foreign contacts was a public matter: “We explained to him, it was a whole lot more than that and went back over the same concerns that we had raised with them the prior day, that the concern first about the underlying conduct itself, that he had lied to the vice president and others, the American public had been misled. And then importantly, that every time this lie was repeated and the misrepresentations were getting more and more specific, they were coming out. Every time that happened, it increased the compromise and to state the obvious, you don't want your national-security adviser compromised with the Russians.”
In other words, the president’s lawyer had to be told that laws apply to the White House; that covert entanglement with a hostile government is forbidden; and that it is wrong to lie to the American people.
Lawlessness is the matrix that gave birth to the travel ban orders—the first, issued on January 27 and enjoined on February 3 by the Seattle court, and the second, issued March 6 and enjoined ten days later before it could take effect by judges in Maryland and Hawaii. Omar Jadwat of the American Civil Liberties Union Immigrants’ Rights Project, argued for the International Refugee Assistance Project. He told the court that Trump had “put this order into place without consulting the agencies that actually have expertise and knowledge in this area.”
Judge Dennis W. Shedd exploded. “He offended the bureaucracy? That is the constitutional crisis, that he didn’t consult with the bureaucracy? I bet a lot of that bureaucracy is willing to resist him on everything he wants to do. A President is not required to talk to the bureaucracy!”
Shedd’s question is like Trump’s attack on District Judge James Robart as a “so-called judge,” like McGahn’s question to Yates. It dismisses the very fabric of our system. Executive legal and policy review is not a plot by an internal enemy; it is a crucial means of ensuring that the federal government adheres to the rule of law. For a president to trample those norms is chilling; to hear a judge speak contemptuously of them is chilling, too.
Not long before, Judge Henry Floyd had quoted Trump’s statements about banning Muslims before and after taking office, and asked acting Solicitor General Jeffrey Wall, “Is there anything other than willful blindness that would prevent us from getting behind those statements?”
“Yes,” Wall answered. “Respect for a coordinate branch and the presumption that officials act legally, which is the presumption of regularity.” I admired Wall for maintaining a straight face; the administration he represented spurns “regularity,” just as it as it spurns law.
Trump has deliberately, ostentatiously ripped that cloak to shreds.
Shedd’s contempt for “bureaucracy,” meanwhile, extended to meddling federal courts. “If the president is faced with a national-security risk,” he asked Jadwat, “and he doesn’t take any steps to avoid it, and then somebody comes through that ‘light vetting’ or whatever you want to call it, comes here and creates a disaster, takes American lives, it’s on the president. ... When the people say, ‘you didn’t take care of us,’ and he says, ‘I tried to. I tried to.’ So who’s responsible?”
The answer is, the president. He failed, not because of a court, but because a president worthy of office finds ways to protect the nation and also follow the law. But like McGahn in Yates’s account, Shedd spoke of legality as a mere obstruction to the executive will.
“If we follow that line of reasoning,” Judge James A. Wynn Jr. interjected, “would we think differently of Korematsu now?”
Wynn was referring to Korematsu v. United States, the Supreme Court case that legitimized the internment of Japanese Americans during World War II. That episode—the Japanese internment and the courts’ shameful acquiescence in crimes against humanity—is the unspoken stake in the current interlocking crises.
Each time those in power brush aside that “archaic” Constitution, those pernickety procedures, those effete unwritten norms, those annoying statutes, that carping acting attorney general, those obdurate bureaucrats, those so-called judges, those whining lawyers, those ungrateful citizens, those undeserving aliens, they bring the nation closer not just to injustice but to catastrophe.