“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,” Ms. Yates wrote in a letter to Justice Department lawyers. “At present, I am not convinced that the defense of the executive order is consistent with these responsibilities nor am I convinced that the executive order is lawful.”
The decision is largely symbolic — Mr. Trump’s nominee to be attorney general, Senator Jeff Sessions, is likely to be confirmed soon — but it highlights the deep divide at the Justice Department and elsewhere in the government over Mr. Trump’s order…
“For as long as I am the acting attorney general, the Department of Justice will not present arguments in defense of the executive order, unless and until I become convinced that it is appropriate to do so,” she wrote.
Now we just need the Democrats to hold up the confirmation of Jeff Sessions.
The Trump White House has tried to justify the executive action by falsely comparing it to previous actions of Barack Obama. The fact check sites have debunked this claim, with Glenn Kessler giving it Three Pinocchios:
So what’s the difference with Trump’s action?
First, Obama responded to an actual threat — the discovery that two Iraqi refugees had been implicated in bombmaking in Iraq that had targeted U.S. troops. (Iraq, after all, was a war zone.) Under congressional pressure, officials decided to reexamine all previous refugees and impose new screening procedures, which led to a slowdown in processing new applications. Trump, by contrast, issued his executive order without any known triggering threat. (His staff has pointed to attacks unrelated to the countries named in his order.)
Second, Obama did not announce a ban on visa applications. In fact, as seen in Napolitano’s answer to Collins, administration officials danced around that question. There was certainly a lot of news reporting that visa applications had slowed to a trickle. But the Obama administration never said it had a policy to halt all applications. Indeed, it is now clear that no ban was put in place. Even so, the delays did not go unnoticed, so there was a lot of critical news reporting at the time about the angst of Iraqis waiting for approval.
Third, Obama’s policy did not prevent all citizens of that country, including green-card holders, from traveling to the United States. Trump’s policy is much more sweeping, though officials have appeared to pull back from barring permanent U.S. residents.
Jon Finer further debunked the Trump administration’s attempts to compare their actions to actions under Obama:
There are so many reasons to detest the Donald Trump administration’s executive order on “Protecting the Nation from Foreign Terrorist Entry into the United States,” that it’s hard to know where to start.
Others have already argued eloquently about its cruelty in singling out the most vulnerable in society; its strategic folly in insulting countries and individuals the United States needs to help it fight terrorism (the ostensible purpose of the order in the first place); its cynical incoherence in using the September 11 attacks as a rationale and then exempting the attackers’ countries of origin; its ham-handed implementation and ever-shifting explanations for how, and to whom, it applies; and, thankfully, its legal vulnerability on a slew of soon-to-be-litigated grounds, including that it may violate the Establishment and Equal Protection clauses of the U.S. Constitution.
Finer then discussed “five enormous differences between the executive order the White House issued on Friday and what the Obama administration did.” These can be reviewed in the full article, expanding upon what the fact check sites have posted. He concluded by debunking Trump’s claims that the list of seven countries came from the Obama administration:
Bonus: Obama’s “seven countries” taken out of context: Trump’s claim that the seven countries listed in the executive order came from the Obama administration is conveniently left unexplained. A bit of background: soon after the December 2015 terror attack in San Bernadino, President Obama signed an amendment to the Visa Waiver Program, a law that allows citizens of 38 countries to travel to the United States without obtaining visas (and gives Americans reciprocal privileges in those countries). The amendment removed from the Visa Waiver Program dual nationals who were citizens of four countries (Iraq, Iran, Sudan, and Syria), or anyone who had recently traveled to those countries. The Obama administration added three more to the list (Libya, Somalia, and Yemen), bringing the total to seven. But this law did not bar anyone from coming to the United States. It only required a relatively small percentage of people to obtain a visa first. And to avoid punishing people who clearly had good reasons to travel to the relevant countries, the Obama administration used a waiver provided by Congress for certain travelers, including journalists, aid workers, and officials from international organizations like the United Nations.
Barack Obama has also rejected Trump’s comparisons to his policies, and expressed support for the demonstration, saying “American values are at stake.”
Update: Donald Trump has fired Acting Attorney General Sally Yates after she ordered DOJ lawyers not to defend Trump’s ban.