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Post 31 Jan 2017, 10:38 am

danivon wrote:
Doctor Fate wrote:
Ray Jay wrote:P.S. It took Nixon a whole lot longer to fire his attorney general.


Agreed. However, she was not willing to do her job. That's the end of that.
Depends. Is it not part of her job to determine whether or not something is lawful/constitutional as part of deciding whether to fight a case? By the way "just" in context would seem to include whether or not it conformed to the Constitution to me, and could even include US law below that.


If she thought it was unlawful or unconstitutional, she should have told the President that. When he said, "Do it anyway," she should have resigned.

Now, she was fired for not following the White House line on the EO. And it seems that, frankly, the process to create the EO was flawed in that key Hill figures and Administration figures were not consulted or in some cases even given a copy until during or after the signing. And perhaps had there been more consultation, the text and accompanying interpretation by the White House might have been different. There will be court cases, and they may go up to SCOTUS, and then we will see if it was all Constitutional or not.


She was playing politics. Period.

On the SCOTUS thing, the filibuster part is not the issue, so much as that Republicans - and leadership Republicans - were on record saying they would block whoever Obama nominated, before Garland was named, and refused to convene the nominations hearings when he was.


Actually, it is the issue. If you want it to be a political issue, the GOP stalling on Garland was on the ballot in November. They won.

The effect was the same as if a minority had filibustered - saying (before anyone is even nominated) that whoever is put forward will be blocked through the means they had at their disposal. Both parties have now done that. Neither can claim to be angels on it. I am sure people will claim that there is some difference which makes their side fine to declare a total block but not the other, but frankly that is just partisan bull.

Whatever happens with the filibuster, the divide is opening up.


Yeah, one of my liberal friends said we're two nations. All I can say is I pity the pacifist who declares war.
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Post 31 Jan 2017, 10:42 am

Ray Jay wrote:The left wing narrative right now is that the US is descending into autocracy. Although there may be some parallels, overall the narrative seems over the top to me. But I could see it happening over the next couple of years depending on what happens. For example, moderate/libertarian/pro-business Republicans disavow trump ... civil rights get derailed ... congress talks about impeachment ... press freedom gets restricted in fact or in law ...

What's the best analogy for what the US is going through right now? Although it is tempting to compare to the fascist powers in Europe in the 30's, that doesn't quite fit because the US has been a Democracy for so long and our civil institutions, although weakening, are relatively strong. For the same reason, I don't think comparison to today's Russia or Turkey are apt. Thoughts?


Republicans will throw Trump over in a hot second. That's why I'm not too worried.

Well, that and the fact that Trump is not deified by much of the nation, unlike . . . Obama. He had a messiah-like persona. Trump is not a master orator. He is not a magnetic personality. He is not a clever, glib man.
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Post 31 Jan 2017, 10:45 am

Doctor Fate wrote:
Ray Jay wrote:The left wing narrative right now is that the US is descending into autocracy. Although there may be some parallels, overall the narrative seems over the top to me. But I could see it happening over the next couple of years depending on what happens. For example, moderate/libertarian/pro-business Republicans disavow trump ... civil rights get derailed ... congress talks about impeachment ... press freedom gets restricted in fact or in law ...

What's the best analogy for what the US is going through right now? Although it is tempting to compare to the fascist powers in Europe in the 30's, that doesn't quite fit because the US has been a Democracy for so long and our civil institutions, although weakening, are relatively strong. For the same reason, I don't think comparison to today's Russia or Turkey are apt. Thoughts?


Republicans will throw Trump over in a hot second. That's why I'm not too worried.

.. Trump is not a master orator. He is not a magnetic personality. He is not a clever, glib man.


That's when the rubber will hit the road ... I don't see Trump fading into the night ... he will escalate and fight back, using any technique he can, regardless of collateral damage ... he certainly has no problem with lying, defaming others ... what we don't know is how strongly he would use the physical powers of the presidency ... I think you are right, but we won't know till we get there.
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Post 31 Jan 2017, 11:08 am

Ray Jay wrote: . . . I don't see Trump fading into the night ... he will escalate and fight back, using any technique he can, regardless of collateral damage ... he certainly has no problem with lying, defaming others ... what we don't know is how strongly he would use the physical powers of the presidency ... we won't know till we get there.


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Post 31 Jan 2017, 11:15 am

Doctor Fate wrote:If she thought it was unlawful or unconstitutional, she should have told the President that. When he said, "Do it anyway," she should have resigned.


I disagree. Her primary responsibility is to the law, and she did exactly what someone in her position needs to do. If her primary responsibility were to the President, then I would agree with you, but it's not.
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Post 31 Jan 2017, 11:17 am

geojanes wrote:
Ray Jay wrote: . . . I don't see Trump fading into the night ... he will escalate and fight back, using any technique he can, regardless of collateral damage ... he certainly has no problem with lying, defaming others ... what we don't know is how strongly he would use the physical powers of the presidency ... we won't know till we get there.


Wise


I suspect if we get to that point, Trump will resign. However, I'm not sure he's going to drift so far as to isolate himself.

We'll see.
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Post 31 Jan 2017, 11:19 am

geojanes wrote:
Doctor Fate wrote:If she thought it was unlawful or unconstitutional, she should have told the President that. When he said, "Do it anyway," she should have resigned.


I disagree. Her primary responsibility is to the law, and she did exactly what someone in her position needs to do. If her primary responsibility were to the President, then I would agree with you, but it's not.


She did not. She didn't even make a legal argument:

An officer’s first duty is to the law. But that’s precisely the argument that was missing in Yates’s statement last night. She never claimed that Trump’s travel ban was unconstitutional; she actually admitted that OLC had reviewed the order and found it lawful on its face. As such, she was reduced to objecting that the new policy “isn’t wise and just” — which isn’t her decision to make as AG — and that she hadn’t yet been persuaded that it was lawful, even though … she gave no concrete reasons for doubting its legality.
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Post 31 Jan 2017, 11:37 am

Here's a more objective analysis:

Instead, Yates gives four reasons for refusing to defend the EO. Here they are, with my quick reactions.

First, Yates says that OLC did not take into account “statements made by an administration or its surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose.” I assume Yates is referring here to statements such as the one by Rudy Giuliani, who recently claimed that Trump wanted a “Muslim ban” and sought “the right way to do it legally. I am sure OLC didn’t take such statements into account, since they would not be relevant to review for form and legality. I can imagine these and similar statements properly informing the Attorney General’s view of the legality of the EO, if she believed that these statements amounted to the EO being motivated by invidious discrimination (though even if she concluded that, the relevance of such discrimination in the context of the immigration issues here is tricky). But Yates does not say she has concluded that, and it is pretty clear from the context of her letter (see below) that she has not ruled out that there are reasonable arguments in support of the EO.

Second, she says that OLC did not “address whether any policy choice embodied in an Executive Order is wise or just.” True, that is not OLC’s job. But nor is it the Attorney General’s—at least not if the President has decided that the policy choice is wise and just. The Attorney General can personally advise the President about an EO’s wisdom and justness. And the Attorney General can decide to resign if she thinks the President is pursuing a policy so unwise and unjust as to be morally indefensible. But an Attorney General does not typically (I cannot think of a counterexample offhand) refuse to defend an Executive Order in court because she disagrees with the policy basis for the EO.

Third, Yates says her “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.” This is not the standard that the Attorney General and DOJ typically use in deciding whether to defend presidential action in court. (Some have suggested that this is the standard that OLC should use in deciding whether presidential action outside of judicial review is lawful, though that position is contested.) Rather, the longstanding DOJ view is that DOJ will defend a presidential action in court if there are reasonable arguments in its favor, regardless of whether DOJ has concluded that the arguments are persuasive, which is an issue ultimately for courts to decide. DOJ very often—typically—defends presidential action in court if there is a reasonable legal basis for the action, even if it is not supported by the “best view” of the law. Indeed, that happened a lot in the Obama administration, as it does in all administrations.

Fourth, Yates says she is 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.” This sounds like a restatement of the policy choice point above. The Attorney General has discretion to make some DOJ decisions based on what she thinks is just and right. But in the context of deciding whether to defend a presidential EO, the question for Yates is reasonable legality, not what is just and right. If Yates thought the EO, independent of its legality, had crossed a red line of justice and rightness—whatever those terms mean—she should have counseled the President on that point and resigned if he disagreed.

Yates states at the end of her letter that she is “not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.” This statement summarizes the two major points above. First, she believes the standard for defending the EO is “best view of the law,” not reasonable legality, and she is not convinced the EO is consistent with the best view of the law. But as noted above, the typical standard for the Attorney General to defend an EO of the President is not whether she is convinced of its legality. Rather, the standard is something closer to the idea that she should defend the EO unless she is convinced of its illegality--i.e. she defends if there is a reasonable argument for its legality. Second, Yates believes that defending the EO is inconsistent with her responsibilities to interject a policy analysis analysis about the wisdom and justness of the EO independent of the President. For reasons stated above, I do not believe that either of these arguments are persuasive given her role. Nor are they consistent with what I understand the duties and responsibilities of the Attorney General to be.
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Post 31 Jan 2017, 11:49 am

Wait, do you actually think that Trump will resign? Trump? It absolutely boggles my mind that anyone could actually think that.

I fully expect him to fight toot and claw to try to hold on to power when he loses the next election, and can't see him ever resigning voluntarily. It is completely against his character to just resign.
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Post 31 Jan 2017, 1:34 pm

Diemo wrote:Wait, do you actually think that Trump will resign? Trump? It absolutely boggles my mind that anyone could actually think that.

I fully expect him to fight toot and claw to try to hold on to power when he loses the next election, and can't see him ever resigning voluntarily. It is completely against his character to just resign.


Don't misunderstand me.

Do I think he will actually resign? No.

However, that is only because I don't think he'll let things get to such a point. I think he'll wheel, deal, and do whatever he needs to in order to have some support.

That said, if he lost GOP support and could not get Democratic support so that he was a lame duck? Yes, I think he would resign in that situation.

It would be of the "I have better things to do" variety.
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Post 01 Feb 2017, 7:52 am

fate
Here's a more objective analysis:


There are dozens of law suits filed opposing the executive order.
From one from Washington State...
The attorney general says the travel ban violates the Constitution's First Amendment and Equal Protection guarantee, and it "contravenes the federal Immigration and Nationality Act." A federal court has issued a stay forbidding travelers detained in Washington from being sent back to their home countries.


The courts will decide now if Yates was right in her estimation that the EO was indefensible, and unconstitutional. If the DOJ now loses those suits, because courts rule they were illegal and unconstitutional, .... she was acting responsibly.
If the suits fail in court, and are successfully defended .... she was wrong. The EO was defensible.

diemo
I fully expect him to fight toot and claw to try to hold on to power when he loses the next election, and can't see him ever resigning voluntarily. It is completely against his character to just resign

he has settled lawsuits in the past. which indicates he may decide to limit damage.
Nixon didn't risk an impeachment hearing ...he walked away.
Trump could do the same, not quietly but complaining loudly and often about the way the system was rigged until his death.
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Post 01 Feb 2017, 8:25 am

Rickyp, lawsuits filed are not a meaningful thing. That someone as opposed to the order as Alan Dershowitz thinks it is constitutional does carry weight. He is a formidable expert on such matters.

And, AGAIN, Yates did not say it was "unconstitutional." She didn't like it. She objected to it as immoral. That is not a legal standard.
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Post 01 Feb 2017, 8:39 am

From the WaPo:

Turley also said Yates’s firing could not be compared to the “Saturday Night Massacre” when President Richard M. Nixon dismissed independent special prosecutor Archibald Cox, prompting the resignations of the attorney general and deputy attorney general.

Yates’s firing “is less a massacre than a suicide,” Turley said.

Jack Goldsmith, a professor at Harvard Law School and a former assistant attorney general who headed the Office of Legal Counsel under President George W. Bush, said that Yates should have resigned if she could not defend the president’s order. He wrote on the blog Lawfare that the reasons Yates gave in her memo for not defending the order were “extraordinarily weak” and pointed out that she did not say she had concluded that the order was “unlawful” or that defending it in court would be “unreasonable.”


https://www.washingtonpost.com/world/na ... 8313a7e4d1
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Post 01 Feb 2017, 10:17 am

Doctor Fate, I think you make excellent points on Yates. However, the Trump Administration's defense of the travel ban is weak. Here's Galston's opinion piece in today's WSJ
https://www.wsj.com/articles/nothing-re ... 1485907087

I'll quote some of it since the content is protected:

First, the order is probably unconstitutional. As federal Judge Ann Donnelly wrote in issuing an emergency stay preventing two refugees from being returned to their home countries, “The petitioners have a strong likelihood of success in establishing that [their removal] violates the rights to Due Process and Equal Protection guaranteed by the United States Constitution.” To be sure, the petitioners are not citizens. But the 14th Amendment distinguishes clearly between the privileges and immunities of “citizens,” on the one hand, and the due-process and equal-protection rights of “persons” on the other....

Setting aside constitutional issues, the executive order is of dubious legality. The United States’ fundamental immigration statute, the Immigration and Nationality Act of 1965, forbids discrimination in the issuance of immigrant visas based on an individual’s “race, sex, nationality, place of birth or place of residence.” On its face, excluding potential immigrants from specific countries violates the law.

In response, the Trump administration points to a 1952 law that permits the president to suspend the entry of any class of aliens that he determines to be contrary to the national interest. But as the Cato Institute’s David Bier observes, the 1965 act modifies and restricts the power, with exceptions only as provided by Congress. ...
Legal issues aside, the executive order does not meet the test of sound public policy. Refugees are already subject to what Mr. Trump calls “extreme vetting,” a process that lasts anywhere from 18 months to four years. This is why, as my Brookings Institution colleague Daniel Byman points out, “Syrian refugees are linked to zero terrorist attacks in the United States.”
The order also punishes immigrants and refugees who fear for their lives because they cooperated with the U.S. armed forces and other American entities. One of the individuals detained at John F. Kennedy International Airport had served as a translator for the U.S. Army and as an engineer on U.S.-funded reconstruction projects. Targeted for assassination, first in Baghdad and then in Kirkuk, he applied for and received a special immigrant visa based on a determination that he had provided “faithful and valuable service to the United States” and was experiencing a serious threat as a consequence of this service.
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Post 01 Feb 2017, 11:35 am

Ray Jay wrote:Doctor Fate, I think you make excellent points on Yates. However, the Trump Administration's defense of the travel ban is weak. Here's Galston's opinion piece in today's WSJ
https://www.wsj.com/articles/nothing-re ... 1485907087

I'll quote some of it since the content is protected:

First, the order is probably unconstitutional. As federal Judge Ann Donnelly wrote in issuing an emergency stay preventing two refugees from being returned to their home countries, “The petitioners have a strong likelihood of success in establishing that [their removal] violates the rights to Due Process and Equal Protection guaranteed by the United States Constitution.” To be sure, the petitioners are not citizens. But the 14th Amendment distinguishes clearly between the privileges and immunities of “citizens,” on the one hand, and the due-process and equal-protection rights of “persons” on the other....

Setting aside constitutional issues, the executive order is of dubious legality. The United States’ fundamental immigration statute, the Immigration and Nationality Act of 1965, forbids discrimination in the issuance of immigrant visas based on an individual’s “race, sex, nationality, place of birth or place of residence.” On its face, excluding potential immigrants from specific countries violates the law.

In response, the Trump administration points to a 1952 law that permits the president to suspend the entry of any class of aliens that he determines to be contrary to the national interest. But as the Cato Institute’s David Bier observes, the 1965 act modifies and restricts the power, with exceptions only as provided by Congress. ...
Legal issues aside, the executive order does not meet the test of sound public policy. Refugees are already subject to what Mr. Trump calls “extreme vetting,” a process that lasts anywhere from 18 months to four years. This is why, as my Brookings Institution colleague Daniel Byman points out, “Syrian refugees are linked to zero terrorist attacks in the United States.”
The order also punishes immigrants and refugees who fear for their lives because they cooperated with the U.S. armed forces and other American entities. One of the individuals detained at John F. Kennedy International Airport had served as a translator for the U.S. Army and as an engineer on U.S.-funded reconstruction projects. Targeted for assassination, first in Baghdad and then in Kirkuk, he applied for and received a special immigrant visa based on a determination that he had provided “faithful and valuable service to the United States” and was experiencing a serious threat as a consequence of this service.


I've seen plenty of contrasting opinions on Constitutionality. One thing is clear: this was not well handled. As for the law, we shall see.