Sally Yates Out-Lawyers & Shuts Down Ted Cruz
While she bested at least three Republican Senators hell-bent on using their time to discuss anything other than Russia during the Senate Judiciary Subcommittee hearing today, former acting Attorney General Sally Yates achieved what few others have: she shut down Senator Ted Cruz (R-TX) by out-lawyering him with her extensive knowledge and application of the law.
Though the hearing was supposed to be centered around Russia’s intervention into U.S. affairs and (more specifically) Yates’ role in notifying the White House of Flynn’s lies about contact with Russian Ambassador Sergey Kislyak, Senators John Cornyn and Ted Cruz devoted the majority of their allotted time to other issues like surveillance, leaks, and Trump’s unpopular Muslim travel ban.
It was Yates’ refusal to defend the first ban in court that allegedly led to her termination by the Trump administration. (The nation learned today that was also the day Yates was supposed to meet with White House Counsel Don McGahn to provide the evidence he requested the prior week during their meetings about Flynn’s illicit actions.)
In the same smug tone he’s used to address others in the past, Senator Cruz asked Yates questions everyone already knew the answer to as he led up to what was supposed to be a nail-in-the-coffin question meant to demonstrate she had political motivations in refusing to defend the ban.
Cruz finally asked whether Yates is familiar with 8 U.S.C. 1182.
After she responded that she wasn’t sure what that statute was offhand, Cruz (expecting that response) said, “Well, it is the binding statutory authority for the executive order that you refused to implement and that led to your termination.” He added, “So it certainly is a relevant and not a terribly obscure statute.”
He went on to read the statute to the hearing audience:
Whenever the President finds that the entry of any alien or of any class of aliens into the United States would be detrimental to the interest of the United States, he may by proclamation and for such period as he shall deem necessary suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants or impose on the entry of aliens any restrictions he may deem appropriate.
Thereafter, he concluded by asking, “Would you agree that that is broad statutory authorization?”
Were Yates any other person who hadn’t spent a career having to deal with and respectfully respond to condescending male peers, that might have been the end of it.
Yates, however, persisted.
She cited a more recent, more applicable statute before segueing into a response that would set up her final remarks a few moments later. She said:
“I would, and I am familiar with that, and I’m also familiar with an additional provision of the INA that says ‘no person shall receive preference or be discriminated against in issuance of a visa because of race, nationality or place of birth.’
That, I believe, was promulgated after the statute that you just quoted. And that’s been part of the discussion with the courts with respect to the INA is whether this more specific statute trumps the first one that you just described.
But my concern was not an INA concern here. It rather was a Constitutional concern, whether or not the executive order here violated the Constitution specifically with the establishment clause and equal protection and due process.”
Not deterred, Cruz continued:
There is no doubt the arguments you laid are arguments we can expect litigants to bring, partisan litigants who disagree with the policy decision of the president.
I would note, on January 27th, 2017, the Department of Justice issued an official legal decision, a determination by the Office of Legal Council, that the executive order, and I’ll quote from the opinion,
“The proposed order is approved with respect to form and legality.” That’s a determination from OLC, on January 27th, that it was legal. Three days later you determined, using your own words, that although OLC had opined on legality, it had not addressed whether it was “wise or just.”
Yates was prepared for this. She responded:
And I also, in that same directive, Senator, said that I was not convinced it was lawful. I also made the point that the office of OLC looks purely at the face of the document, and again, makes a determination as to whether there’s some set of circumstances under which some portion of that [executive order] would be enforceable, would be lawful.
They importantly do not look outside the face of the document, and in this particular instance, particularly where we were talking about a fundamental issue of religious freedom, not the interpretation of some arcane statute, but 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.
Clearly taken back not only by Yates persistence but her mentioning of his pet issue – religious freedom – Cruz said he only had one final question.
“In the over 200 years the Department of Justice history, are you aware of any instance in which the Department of Justice has formally approved the legality of a policy and three days later, the Attorney General has directed the department not to follow that policy and to defy that policy?” he asked.
Yates – in what can only be assumed as a singular prepared statement expecting that exact question – responded, “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.”
Which is to say, Yates – acting as the nation’s Attorney General – was kept in the dark until after the executive order was already issued and lawsuits were already imminent. That’s unprecedented.
He thanked Yates for her comments and ended his questioning. Several outlets reported that sometime shortly thereafter, Senator Cruz left the room (in the middle of the hearing) and never returned for his second round of questions.
Game – set – match.
Here’s video of the exchange: