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Has Sally Yates been sabotaging Trump’s ‘travel ban’ Executive Order all along?

FILE - In this June 28, 2016, file photo, then-Deputy Attorney General Sally Yates speaks at the Justice Department in Washington. On Monday, Jan. 30, 2017, President Donald Trump fired acting Attorney General Sally Yates after she ordered Justice Department lawyers to stop defending refugee ban. (AP Photo/J. David Ake, File)

Confirmation that US President Donald Trump has fired acting Attorney General Sally Yates after she publicly declared in an open letter that the Department of Justice would not defend President Trump’s ‘travel ban’ Executive Order in the courts, comes as no surprise.  On the contrary what would have been astonishing – and concerning – would have been if President Trump hadn’t fired her.

It needs to be said clearly that regardless of one’s views about the Executive Order Sally Yates’s conduct was reprehensible.  As a top government official her job was to carry out loyally the order of her superior – the President of the United States – who is the head of the executive branch.  If she thought the President was acting wrongly and illegally, as the government’s senior law officer her duty was to so advise him, and if he disregarded her advice, to resign.

Instead Sally Yates seems to have taken it on herself to sabotage the President’s policy by publicly prohibiting the Department of Justice’s lawyers from defending it in the courts.

Not only was this a breach of the duty Sally Yates owed the President as a public official to carry out the President’s policy.  It was also a breach of her duty as the government’s senior lawyer to act in the best interests of her client.  It amounts to a lawyer deliberately acting against her own client by refusing to defend him in court and by publicly undermining his case, as opposed to recusing herself if the client insists on acting against her advice and what she thinks is right.

Unfortunately in the fevered atmosphere that has existed in the US since the election it is impossible to avoid speculating about an even uglier possibility.

In my previous article about the Executive Order I said that whilst the Order itself seemed to break no new ground, its implementation has been terrible.

To the extent that Trump’s Executive Order imposes visa bans and limits asylum claims from certain countries for limited periods, or in Syria’s case indefinitely, it seems to me that it breaks no fundamentally new ground. However there have been some other claims: that it turns away people who have already been granted asylum status – or who were about to be – and that it prevents entry to the US of individuals who previously had a right to enter and remain there. There are numerous reports that such things have actually been happening.

If so then all I can say is that there seems to be no permission for such practices in the Executive Order, which so far as I can see takes away no one’s legal right to enter and stay in the US if that right is already granted. Whether an Executive Order can in fact as a matter of law take away such legal rights I do not know but strongly doubt……

If it is possible to make a case for the Executive Order, even its defenders should admit that its implementation has been grossly unjust and chaotic, and that this has caused – and is causing – great hardship to many people.

In that article I speculated that the reason for the dreadful implementation of the Order is that lower ranking officials have not been getting proper guidance from their superiors at early stage in the administration before the new chiefs of department have been able to settle in.

The most important official in providing legal guidance to government workers is of course the Attorney General, who is the government’s senior law officer.  If the Attorney General is openly working to sabotage the President’s policy – as it seems was the case – then there has to be at least a suspicion that she has intentionally either been giving government workers the wrong guidance or – more probably – no guidance at all.

If so, then that might explain the dreadful implementation of the Executive Order, with the inevitable suspicion in that case that it was engineered deliberately.

The liberal US economist Paul Krugman – who was an outspoken supporter of Hillary Clinton during the recent election – has recently written a widely publicised article for The New York Times comparing the supposed danger US democracy is allegedly facing from Donald Trump to the events that led to the fall of the Roman Republic.  It contains the following remarkable paragraphs

Here’s what I learned: Republican institutions don’t protect against tyranny when powerful people start defying political norms. And tyranny, when it comes, can flourish even while maintaining a republican facade.

On the first point: Roman politics involved fierce competition among ambitious men. But for centuries that competition was constrained by some seemingly unbreakable rules. Here’s what Adrian Goldsworthy’s “In the Name of Rome” says: “However important it was for an individual to win fame and add to his and his family’s reputation, this should always be subordinated to the good of the Republic … no disappointed Roman politician sought the aid of a foreign power.”

America used to be like that, with prominent senators declaring that we must stop “partisan politics at the water’s edge.” But now we have a president-elect who openly asked Russia to help smear his opponent, and all indications are that the bulk of his party was and is just fine with that. (A new poll shows that Republican approval of Vladimir Putin has surged even though — or, more likely, precisely because — it has become clear that Russian intervention played an important role in the U.S. election.) Winning domestic political struggles is all that matters, the good of the republic be damned.

As anyone who is genuinely familiar with Roman history knows, the parallel Krugman is making between the fall of the Roman Republic and Russia’s alleged support for Donald Trump in the election is entirely false.  The Roman Republic did not fall because Roman politicians looked to outsiders for help in their domestic political conflicts as Paul Krugman seems to imply.  There was no case of any genuinely prominent Roman politician (not even Mark Antony) ever doing anything like that.

What caused the Roman Republic to fall was that a powerful but self-interested group of wealthy Senators abused constitutional mechanisms in order to preserve its power by blocking necessary reforms urged by politicians they branded “populists”.  On occasion this group turned to assassination (as in the case of the Gracchi), or civil war, and in the case of Julius Caesar (the most famous Roman “populist”of them all) they did both.  As a result they destroyed the Roman people’s faith in the Republic’s institutions and in its ability to govern properly.

I don’t think the situation in the US is – as yet – remotely as bad.  However if Democrats like Sally Yates continue as they have been doing over the last few months it might one day even come to that.

POSTSCRIPT: Since writing the above I have seen the following articleposted by the estimable Luciana Bohne – by Jack Goldsmith, the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, a Senior Fellow at the Hoover Institution, and co-chair of its Working Group on National Security, Technology, and Law, who makes essentially the same criticism of Sally Yates’s conduct that I do.  If she felt she could not ask Department of Justice lawyers to defend the Executive Order in court for the reasons she says, then her proper course was to resign, not publicly campaign against it whilst sabotaging its enforcement.

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