Trump fires acting attorney general for refusing to defend legality of his refugee ban

Reporting from Washington  —  President Trump fired acting Atty. Gen. Sally Yates on Monday, just hours after she announced that the Justice Department would not defend his controversial executive order temporarily banning all refugees and travelers from certain countries.

Yates has “betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States,” the White House said in a statement. “It is time to get serious about protecting our country.”

Yates is a career prosecutor who served as the Obama administration’s deputy attorney general. Trump had asked her to stay on as acting attorney general pending the confirmation of his pick for attorney general, Sen. Jeff Sessions of Alabama.

The firing came after Yates wrote a letter to Justice Department lawyers in which she said she questioned the lawfulness of Trump’s order and announced that the Justice Department would not defend it in court.

“My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts,” Yates wrote.

“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,” she wrote.

“Consequently, 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.”

The letter, the defiance of the president’s wishes that it reflected and the subsequent firing created the most public split between the Justice Department and a White House since fall 1973, when President Nixon ordered the firing of Watergate special prosecutor Archibald Cox, prompting the department’s two top leaders to resign.

Taken together, the actions heightened the already tense atmosphere surrounding the travel ban, which has sparked protests at airports around the country and several court challenges.

In a tweet Monday evening before he announced her termination, the president portrayed Yates’ statement as part of a partisan move against him, saying “the Democrats are delaying my Cabinet picks for purely political reasons. They have nothing going but to obstruct. Now have an Obama A.G.”

The White House announced that Trump had appointed Dana J. Boente, the top federal prosecutor in northern Virginia, to serve as acting attorney general until Sessions is confirmed. He is a 31-year veteran of the Justice Department, with a background in tax crimes and fraud. In December 2012, he was appointed by former Atty. Gen. Eric H. Holder Jr. to serve as the U.S. attorney in New Orleans.

The firing is likely not only to heighten the political tension but also create additional problems. To begin with, Yates’ doubts about the legality and wisdom of Trump’s order are now on the public record and almost certain to be cited by lawyers challenging Trump’s action in future cases.

In addition, Yates was the only person in the department authorized to sign wiretapping warrants in foreign espionage cases involving the Foreign Intelligence Surveillance Court.

Justice Department lawyers had initially questioned whether someone who had not been confirmed to one of three top Justice Department positions could legally perform that job. They eventually concluded that Boente would qualify.

Sessions is likely to be confirmed this week, but Senate Democrats have been trying to slow the process.

The firing also increased the sense of chaos that already has surrounded the executive order, which Trump signed Friday. The order suspended all refugee resettlements in the U.S. for 120 days, and indefinitely for those from Syria. It also banned travel to the U.S. for 90 days by nationals of seven countries in the Middle East and North Africa: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

Already the administration has had to reverse position on parts of the order, as immigration officials have struggled to understand what it required.

After initially detaining scores of U.S. permanent residents on Friday and Saturday, in some cases keeping them in custody for many hours, the administration announced Sunday that in the future, green-card holders from the seven countries covered by the travel ban would not be detained except in unusual circumstances.

The administration also announced that dual-nationals, people with British and Iraqi passports, for example, would be exempt from the ban after initially saying they would be covered. That question has created tension with European governments.

The State Department announced Monday that refugees from places other than the seven countries covered by Trump’s ban could still enter the U.S. through Thursday because many were already in transit. About 900 refugees are expected to enter the U.S. this week, the department said in a statement. Earlier, officials had been uncertain about their fate.

In court hearings so far, Justice Department lawyers have struggled to defend the order or answer questions from judges about the legal issues involved.

On a conference call with reporters on Monday, Jordan Wells, an attorney with the American Civil Liberties Union, which won a preliminary skirmish in court over the weekend, described the crackdown’s impacts as “topsy-turvy.”

Top White House officials wrote the order without the usual consultation with the major agencies that have to carry it out.

Yates was said to be among several top government officials who found out shortly before Trump signed the order or, in some reported cases, when they saw him signing it on television Friday.

Yates agonized all weekend, according to a person familiar with her deliberations, debating whether to resign or to direct federal prosecutors not to defend Trump’s order. Eventually, knowing that it would probably cost her the job, she decided to write the letter.

The president’s comments in an interview Friday that Christians deserved priority for entrance to the U.S. and an account from former New York Mayor Rudolph W. Giuliani, a longtime Trump supporter, about the president asking him and others to draft a “Muslim ban,” influenced her decision, the person said.

Yates wrote in her letter that comments made by administration officials “may bear on the order’s purpose” in ways that would undermine its constitutionality.

Much of the confusion about the order stems from the haste with which it was prepared.

Trump tweeted Monday that if the order had been publicized in advance for a week, “the ‘bad’ would rush into our country during that week.” That is untrue. The process of getting a visa from any of the covered countries typically takes months.

At the Justice Department, the Office of Legal Counsel, which normally reviews executive orders, was given a brief period to check the text to see whether it clearly violated any legal standards. That office determined that the order passed muster.

But, Yates said in her letter, that review was a basic check that did not consider broader issues, such as whether the order was discriminatory or “consistent with this institution’s solemn obligation to always seek justice and stand for what is right.”

Yates’ declaration came as opponents filed two new court challenges to the order. In Washington state, Atty. Gen. Bob Ferguson, saying the president was “not above the law,” declared that Trump’s order had violated the Constitution by creating a religious test for entry to the country and by denying due process to those seeking visas.

In Virginia, 27 Muslims filed suit in federal court saying the ban amounted to an unconstitutional religious test. The people bringing the case include students from Yemen and Somalia who hold U.S. visas, and a Syrian national who is a legal permanent resident in the process of gaining U.S. citizenship.

The ACLU, which won a key initial challenge against the immigration ban late Saturday, said it also was preparing a broad challenge to the order on constitutional grounds.

The president has wide power over immigration. Federal law says he can “suspend the entry of all aliens or any class of aliens” if he finds them to be “detrimental” to the country’s interests. The same law, however, also says that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

Legal experts predict the court fights over the law could be lengthy and complex.

“The strongest case for opponents is that this order is discrimination based upon religion,” said T. Alexander Aleinikoff, a law professor at the New School in New York who worked as a counsel to the Immigration and Naturalization Service.

“Immigration is an area where courts generally don’t get involved. But I’m sure this could go all the way up high, to the Supreme Court,” Aleinikoff said, adding that “nothing is clear on how this will play out.”

Kevin Lapp, an associate law professor at Loyola Law School in Los Angeles, noted that the usual rules “around discrimination don’t have the same force when it comes to immigration law.”

But, he said, “this may be the moment where courts draw the line on nationality or religion on immigration, saying things have gone too far.”

Times staff writers Del Quentin Wilber, Brian Bennett and Tracy Wilkinson contributed to this report.

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UPDATES:

7:25 p.m.: The story was updated with additional background.

The story was originally published at 6:45 p.m.