The White House instructed administration lawyers not to let the acting attorney general know that it was working on a travel ban temporarily barring immigrants from seven Muslim-majority countries, according to testimony Monday.
The decision to leave Justice Department leaders in the dark on the executive order may help explain its chaotic implementation. The order was eventually blocked by a U.S. appeals court, which ruled that it was unconstitutional. It was later withdrawn by the administration.
Former Acting Attorney General Sally Yates offered her version of what took place on the drafting of the order during a Senate subcommittee hearing devoted largely to her warning to the White House that Trump’s first national security adviser, retired Lt. Gen. Michael Flynn, had lied about his contacts with Russian Ambassador Sergey Kislyak.
Trump signed the immigration ban on Jan. 27, the same day Yates was meeting for a second time with White House counsel Donald McGahn on Flynn’s contacts.
Yates revealed that she had not been told about the travel ban order in response to a question from Sen. Ted Cruz, R-Texas, who accused her of playing politics by not defending President Donald Trump’s controversial executive order. He pressed Yates on whether she was aware of any precedent for an attorney general to reject a decision by the Office of Legal Counsel, which had approved the executive order.
“I’m not. 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,” Yates said.
Leon Fresco, who headed the U.S. Department of Justice’s Office of Immigration Litigation under Obama, said the OLC and attorney general usually work in tandem.
“It is highly irregular for the Office of Legal Counsel to keep the attorney general’s office in the dark with regard to an analysis of a policy proposal that is as explosive as the travel ban,” Fresco said.
Trump’s initial order temporarily suspended travel to the United States by citizens of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. Chaos ensued at U.S. airports across the country as immigration and customs agents initially blocked the entry of all citizens from the seven countries, including those who had lived in the United States for years.
A week later, a Seattle-based U.S. District Judge James Robart blocked implementation of the order. The 9th U.S. Circuit Court of Appeals then upheld the decision, which caused the Trump administration to redraft the order.
A revised version of the order that dropped Iraq from the list of targeted countries was also blocked in a lawsuit in which the state of Hawaii argued it would harm its Muslim population, its tourism industry and its universities’ ability to recruit foreign students.
Cruz noted that the OLC approved the proposed order with “respect to form and legality.” He challenged Yates, quoting from her words, saying she made a partisan decision about whether it was “wise or just.”
“There is no doubt the arguments you laid out are arguments that we can expect litigants to bring, partisan litigants who disagree with the policy decision of the president,” Cruz said.
But Yates said that the OLC looks purely at the face of the document and not beyond, such as on a fundamental issue like religious freedom.
“It was appropriate for us to look at the intent behind the president’s actions, and the intent is laid out in his statements,” Yates said.
Yates said she had to read about the directive in news reports even though she had been in the White House on the day it was signed. She defended her decision not to defend the order, saying it was unlawful and inconsistent with the principles of the Justice Department.
“Look, I understand that people of good will, who are good folks, can make different decisions about this,” Yates said. “I understand that, but all I can say is that I did my job the best way I knew how.”