Trump Fires Acting Attorney General • Hacker News Board

Re: Trump Fires Acting Attorney General

#441

Post by ouid » Tue, Jan 31, 2017, 8:58 PM UTC

Turing_Machine wrote: post #183

ouid wrote: post #31

Earlier quoted context omitted.

"Although the attorney general advises the president, the basic authority of the office is derived from Congress and the functions of the office are subject to congressional control. In addition, the attorney general is a member of the bar and therefore an officer of the court subject to the directives of the judicial branch." - http://legal-dictionary.thefreedictionary.com/Attorney+Gener...

"the attorney general is a member of the bar" While I'm sure that's always or virtually always been true in practice, nothing in the relevant U.S. Code appears to require it (it is definitely not the case for the Supreme Court).

What's the relevant US code? I was just searching through legal resources for an answer, and this was the first one I found.

And there are no legal guidelines to whether you are allowed to be a federal judge of any kind. The same is not true of prosecutors.

Re: Trump Fires Acting Attorney General

#442

Post by ouid » Tue, Jan 31, 2017, 9:00 PM UTC

TenOhms wrote: post #40

ouid wrote: post #31

Earlier quoted context omitted.

"Although the attorney general advises the president, the basic authority of the office is derived from Congress and the functions of the office are subject to congressional control. In addition, the attorney general is a member of the bar and therefore an officer of the court subject to the directives of the judicial branch." - http://legal-dictionary.thefreedictionary.com/Attorney+Gener...

What I find worrying is she ordered that the DOJ not support the President without any clear conviction that the law was unconstitutional, it smelled of an entirely politically motivated action not grounded in US law.

It was an executive order in violation of law. That seems like exactly the kind of discretion that an AG has and should have.

Re: Trump Fires Acting Attorney General

#443

Post by dragonwriter » Tue, Jan 31, 2017, 9:09 PM UTC

LordKano wrote: post #333

wavefunction wrote: post #72

Earlier quoted context omitted.

The decision to prosecute a defendant or not (or defend a statute, or not) is at the discretion of the prosecutor, barring some sort of statutory requirement. The President isn't a king, whose orders are to be followed regardless of the Constitution or prevailing law. Both the President and the AG serve at the pleasure of the People of the United States, and Trump is about to find that out the hard way.

Both the President and the AG serve at the pleasure of the People of the United States, and Trump is about to find that out the hard way. Trump has the support of roughly half of the country. Regardless of how loud the opposition is, don't confuse their passion for widespread support.

> Trump has the support of roughly half of the country

Per the latest Gallup daily tracking, 51% disapprove, 43% approve, and the quickest President to majority disapproval in the history of the tracking poll.

Re: Trump Fires Acting Attorney General

#444

Post by zardeh » Tue, Jan 31, 2017, 9:14 PM UTC

cookiecaper wrote: post #411

pm90 wrote: post #398

Earlier quoted context omitted.

> Why is Ms. Yates comfortable allowing the judiciary to make its decisions on Mr. Obama's illegal EOs but not comfortable allowing it to do so on Mr. Trump's EOs? Firstly, Obama's EO's were not "illegal": they were well thought out and released only after much consultation with the DOJ to precisely ensure that such a situation does not occur. Now, we have a week-old President with no political experience rapidly fir…

>Firstly, Obama's EO's were not "illegal": they were well thought out and released only after much consultation with the DOJ to precisely ensure that such a situation does not occur. They were illegal according to the 5th Circuit Court of Appeals and the Supreme Court of the United States. This has already been adjudicated. Look up Texas et al v. United States (from 2016). >Now, we have a week-old President with no p…

>It's not a tangent. Ms. Yates apparently feels the president does not have the legal authority to make orders of this nature when President Trump is in office, but that he does have the authority when President Obama is in office.

There's a very simple answer to this:

She did not believe that the Obama EO was unconstitutional, whereas she believed that this one was. Then, everything makes sense. You can rant about how "there's no credible argument", but I'm inclined to believe an Attourney General over someone on an internet forum with regards to the law.

So tell me this: what should she have done if she believed the EO, as applied, would be unconstitutional?

Edit: also the judiciary is moving swiftly, in the past two days, the EO has been practically gutted in the courts.

Re: Trump Fires Acting Attorney General

#445

Post by nkurz » Tue, Jan 31, 2017, 9:30 PM UTC

cookiecaper wrote: post #411

pm90 wrote: post #398

Earlier quoted context omitted.

> Why is Ms. Yates comfortable allowing the judiciary to make its decisions on Mr. Obama's illegal EOs but not comfortable allowing it to do so on Mr. Trump's EOs? Firstly, Obama's EO's were not "illegal": they were well thought out and released only after much consultation with the DOJ to precisely ensure that such a situation does not occur. Now, we have a week-old President with no political experience rapidly fir…

>Firstly, Obama's EO's were not "illegal": they were well thought out and released only after much consultation with the DOJ to precisely ensure that such a situation does not occur. They were illegal according to the 5th Circuit Court of Appeals and the Supreme Court of the United States. This has already been adjudicated. Look up Texas et al v. United States (from 2016). >Now, we have a week-old President with no p…

If she could not in good conscience discharge the responsibilities of the AG, which include supporting the chief executive, the morally consistent option would've been resignation.

I agree with most of what you say, but why do you feel the actions she took were morally inconsistent? What is the moral imperative to quietly resign rather than to call attention to an issue you feel merits greater public scrutiny? While you can accuse her of having the wrong moral framework, I don't see how you can conclude that her behavior is inconsistent with the framework she believes in.

Re: Trump Fires Acting Attorney General

#446

Post by pc2g4d » Tue, Jan 31, 2017, 9:34 PM UTC

Imagine a world in which officers of the executive branch were completely free to defy the president. Would there not be chaos? It makes sense for a president to fire insubordinate subordinates.

The AAG was likely trying to score political points by going out the way she did. I respect her acting according to conscience, but do think making a show of it like that dilutes the message a bit. Probably more effective for her to have made a statement outlining her objections to the EO and unwillingness to defend it, and then resigned.

Re: Trump Fires Acting Attorney General

#447

Post by nkurz » Tue, Jan 31, 2017, 9:45 PM UTC

zardeh wrote: post #444

cookiecaper wrote: post #411

Earlier quoted context omitted.

>Firstly, Obama's EO's were not "illegal": they were well thought out and released only after much consultation with the DOJ to precisely ensure that such a situation does not occur. They were illegal according to the 5th Circuit Court of Appeals and the Supreme Court of the United States. This has already been adjudicated. Look up Texas et al v. United States (from 2016). >Now, we have a week-old President with no p…

>It's not a tangent. Ms. Yates apparently feels the president does not have the legal authority to make orders of this nature when President Trump is in office, but that he does have the authority when President Obama is in office. There's a very simple answer to this: She did not believe that the Obama EO was unconstitutional, whereas she believed that this one was. Then, everything makes sense. You can rant about h…

So tell me this: what should she have done if she believed the EO, as applied, would be unconstitutional?

You ask a reasonable hypothetical, but I don't think it matches the circumstances here. If Yates felt that she could not in good faith enforce the order because it was unconstitutional, I think she would have been very clear about this in her memo: https://www.nytimes.com/interactive/2017/01/30/us/document-L...

Instead, while not ruling out unconstitutionality, she pointed to the "broader" responsibility she feels the leader of the Department of Justice should have. I thought she said quite clearly (for a lawyer) that although she was uncertain whether the order was legal, her refusal was because she judged the order to be unjust and unwise. Personally, I greatly respect her differentiation between "constitutional" and "right".

Re: Trump Fires Acting Attorney General

#448

Post by robbiep » Tue, Jan 31, 2017, 9:47 PM UTC

croon wrote: post #339

robbiep wrote: post #272

Earlier quoted context omitted.

I am a CEO. And yes I recognise the foolishness of poor management practices, as well as acting in a shortsighted or criminal manner. Perhaps we should differentiate between insubordination/disloyalty, which is what the parent comment is about, and some version of the Nuremberg defence, namely, I was told to do it and failed to process that it was an immoral or criminal act. Both may get you fired; morally one is cor…

So if you ordered something of dubious legality, and your top corporate lawyer suggested it was unlikely to pass a trial, you would just sack them and ask the next one the same thing again? Like you said in the parent comment. This isn't behavior that should be encouraged, neither in you nor in Trump, and your original sentiment that we shouldn't worry about it isn't something I'd subscribe to.

>So if you ordered something of dubious legality, and your top corporate lawyer suggested it was unlikely to pass a trial, you would just sack them and ask the next one the same thing again?

At no point have I said I take a view that is often taken in HN, that is, if you can play the game and win, it doesn't matter how you do it. I actually don't think that.

You are inferring that I am because of your pro-trump bias and because i responded to the parent with insert generic content, which could be construed as being neutral/pro-trump. For the record, I think the mess Americans have created for themselves serves them right; is a sign of a broken democracy, an ignorant and uninformed populace where only extremism will get people to the polls. Unfortunately Australia is part of a world where the actions of a bigoted maniac will affect us; and I can hardly say that our political leadership is any better (although our democracy is significantly stronger with compulsory voting and preferential voting)

Re: Trump Fires Acting Attorney General

#449

Post by res0nat0r » Tue, Jan 31, 2017, 10:44 PM UTC

MR4D wrote: post #438

res0nat0r wrote: post #416

Earlier quoted context omitted.

The AG enforces and defends the Constitution, not the whims of a POTUS. Trump is quickly trying to turn the USG into yes men. Sean Spicer just said minutes ago in his Press Conference that her firing is pretty much a warning shot that if you don't agree with his views, no matter how you think the law stands you should step up or ship out. That's not how Democracy works and Trump is quickly trying to change that and i…

Well, upon that there is some disagreement. I'll take this quote from Jonathan Adler (who is Director of the Center for Business Law & Regulation at Case Western Reserve University ): "To the contrary, Yates claims she is ordering the Justice Department not to defend the executive order because it is not 'wise or just.' This is quite significant. I am not aware of any instance in which the Justice Department has refu…

Trump & co. have gone 0/5 in the federal lawsuits that have been brought already stating that this is unconstitutional.

Re: Trump Fires Acting Attorney General

#450

Post by dragonwriter » Tue, Jan 31, 2017, 10:51 PM UTC

MR4D wrote: post #438

res0nat0r wrote: post #416

Earlier quoted context omitted.

The AG enforces and defends the Constitution, not the whims of a POTUS. Trump is quickly trying to turn the USG into yes men. Sean Spicer just said minutes ago in his Press Conference that her firing is pretty much a warning shot that if you don't agree with his views, no matter how you think the law stands you should step up or ship out. That's not how Democracy works and Trump is quickly trying to change that and i…

Well, upon that there is some disagreement. I'll take this quote from Jonathan Adler (who is Director of the Center for Business Law & Regulation at Case Western Reserve University ): "To the contrary, Yates claims she is ordering the Justice Department not to defend the executive order because it is not 'wise or just.' This is quite significant. I am not aware of any instance in which the Justice Department has refu…

> To the contrary, Yates claims she is ordering the Justice Department not to defend the executive order because it is not 'wise or just.' This is quite significant. I am not aware of any instance in which the Justice Department has refused to defend a presumptively lawful executive action on this basis.

In the usual course, the DoJ would pre-vet an E.O. and concerns about wisdom and justice, and particularly, as regards the former, issues of the degree to which defending the E.O. would require the DoJ to take positions that the DoJ has taken or would otherwise take defending other executive actions, and the potential adverse precedent (for public and even specifically executive branch interests) that would be set were courts to accept arguments the DoJ would make defending the E.O. would be addressed, weighed, and resolved (possibly with changes to the E.O. and/or changes to strategy in other pending cases) before the E.O. was issued.

The lack of consultation within the Executive Branch that, among others in other contexts, Senators McCain and Graham (both Republicans) called out, prevented that from occurring in advance, which meant those considerations would have to be weighed after-the -fact. But still before any defense could be prudently mounted.