Tuesday, January 31, 2017


     The dangerous defiance of the lawless left continues to subvert the efforts of the Trump Administration to restore a semblance of sanity to America's immigration policy. 

     A pinch-faced Obama holdover at the Justice Department, one Sally Yates, has exploited and betrayed her temporary trust as Acting Attorney General (pending the Democrat-delayed confirmation of Jeff Sessions as permanent AG) to gain 15 minutes of infamy through an act of pure dereliction of duty and defiance of law.

     President Trump, unlike so many elected officials of both parties, has kept his campaign promises by signing a series of executive orders putting into effect various policies and programs that could be effectuated without legislation.  Among the most prominent of these was to suspend entry of aliens from seven terrorist-harboring nations pending the thorough vetting of their backgrounds that the Obama administration declined to perform.

     The constitutionality and legality of the suspension/vetting order has been thoroughly demonstrated elsewhere by a variety of legal experts.  More to the point here, the order's legal and constitutional validity was vetted and approved by the Office of Legal Counsel (OLC), the elite Justice Department office specifically charged with the responsibility of reviewing Executive Branch orders, policies, programs, and proposed legislation for legality and constitutionality.  The author of Splashing Rocks served as Senior Counsel at OLC in one stretch of his legal career, and so is especially knowledgeable of the points that follow.
          Dismissed DOJ Caretaker Yates:  Subversive Face of the Lawless Left

     Ms. Yates was not content merely to defy the President and abandon her duties in refusing to defend the immigration order.  With the typical melodramatics and self-aggrandizement of the leftist hack that she is, Yates issued an outrageously political letter applauding herself for "stand[ing] for what is right" and "seek[ing] justice" -- in a blatantly partisan declaration that the President was doing the opposite.

     Yates actions and statements were dishonest, lawless, and profoundly irresponsible.  She richly deserved to be among the first Obama holdover cadres to receive an emphatic "You're fired!" from the  President.  But there is a significant additional twist to this episode which sharply underscores the utter lawlessness and hypocrisy of the political lawyers of the Democrat Left.

     Just before the various controversies over the immigration order came to a head, critics on the left were suggesting that it would be irresponsible for President Trump to issue executive orders that were vetted only by White House Counsel without any clearance by the above-described OLC.  For example, Democrat/Liberal Walter Dellinger, who headed the OLC during the Clinton administration, recently asserted that it is "essential that any order issued by the President be reviewed for lawfulness by the career lawyers at the Office of Legal Counsel. That is not a task that can be left to White House staff if we are going to be a nation of laws."

     In the case of the suspension/vetting order, the Trump Administration did exactly what Mr. Dellinger recommended:  the order was vetted and cleared by OLC for legality and constitutionality.  Yet Acting AG Yates -- who is an Obama political holdover whose position is merely that of a "caretaker" -- chose to disregard the OLC clearance and refused to defend the order on inarticulate justice policy grounds and because she was "not convinced" that it was lawful.  But to paraphrase Walter Dellinger, "that is not a task to be left to" a politically appointed and motivated caretaker/hack like Sally Yates "if we are going to be a nation of laws."

     First, if Yates was "not convinced" by the OLC opinion, she should have been.  She is simply unqualified to second guess OLC on a constitutional law issue, let alone where OLC's opinion rested on such well-established legal and historical precedent. 

     As I can personally attest, OLC is an extremely selective office that hires only the most highly qualified attorneys.  Virtually all OLC attorneys graduated near the top of their class from one of the nation's most elite law schools and then proceeded to a clerkship on a U.S. Court of Appeals.  It is a prestigious proving ground for Supreme Court Justices, including William Rehnquist, Antonin Scalia, and Samuel Alito.

     Yates got her law degree from barely mid-rank University of Georgia Law School, had no judicial clerkship, and has no apparent standing as a legal scholar.  She would have been lucky to be granted an interview at OLC, let alone to be hired there.  She was in her role as the Acting AG only as a ministerial "caretaker" until Jeff Sessions would be confirmed as Attorney General.  Yet this politically appointed caretaker had the audacity to make the radical and extraordinary step of dismissing OLC's opinion (not to mention prior DOJ approvals of comparable suspension orders by the Carter and Obama administrations) and trashing the President's order because this second-rate lawyer was "not convinced" it was constitutional.

     The purported policy and "justice" grounds on which Yates declined to defend the order are even more outrageous and insupportable.  Whatever authority an Acting Attorney General might have to question a presidential action on strictly legal grounds, she has no standing to second-guess the policy behind a presidential order -- let alone one involving the President's authority over national security, foreign affairs, and border control.  An executive order is law.  For an acting Attorney General to decline to defend or enforce it is not only a dereliction of duty, but a lawless and irresponsible act bordering on treachery.

     Yet it is not entirely surprising that a Democrat Attorney General, acting or otherwise, would arbitrarily reject a valid OLC legal opinion for partisan political reasons and personal aggrandizement.  This is merely the latest manifestation of the Democratic Left's scornful disregard for the rule of law when it interferes with their political designs.

     Early in the first Obama administration, Congress was considering enactment of a bill (the DC Voting Rights Act, or DCVRA) that would authorize the District of Columbia to have a seat in the House of Representatives.  The Constitution, however, expressly and repeatedly states that only States may be represented in the House (and the Senate).  Consequently, a constitutional amendment is required to give DC a voting Representative in Congress.  Therefore, in attempting to authorize such a DC Representative through simple legislation, the DCVRA was patently unconstitutional.

     OLC had previously issued a formal opinion during the latter Bush Administration that an earlier version of the DCVRA was patently unconstitutional (it was drafted by yours truly).  Confident that the Obama Justice Department would not let the mere Constitution stand in the way, however, radical proponents of DC representation reintroduced the bill promptly after Obama's election.  To its great credit, however, the Obama appointees at OLC upheld the prior opinion that the DCVRA was unconstitutional.  Acting Assistant AG for OLC David Barron, now a Court of Appeals Judge, appears to have been responsible for the ruling.  OLC had little honest choice, however, since the bill's unconstitutionality was so glaringly apparent that a contrary opinion would have seriously undercut OLC's hard-earned reputation of rigorous, nonpartisan integrity in issuing its legal opinions.

    Foreshadowing Ms. Yates' more recent lawlessness, Obama's radical leftist Attorney General, Eric Holder, showed as little deference to OLC's constitutional expertise as he typically did to the Constitution itself.  Holder not only rejected the OLC opinion, he completely circumvented longstanding DOJ practice and precedent in order to assure that there would be no Department questioning of the patently unconstitutional DCVRA. 

     To Holder, securing a House seat for the solidly Democratic and overwhelmingly black District of Columbia was far more important than obeying the unmistakable constitutional requirement that only States could be represented in Congress.  So he dispensed with the usual Department opinion on whether the bill was constitutional, and instead redirected the bill to an attorney of his choice in the Solicitor General's office, and altered the issue to whether the bill was defensible, whether or not it was constitutional in fact. 

     Needless to say, Holder obtained the desired "clearance," and the unconstitutional DCVRA proceeded to Congress with the Obama Administration's fraudulent imprimatur.  To this day, the OLC opinion that Holder rejected has been kept secret and withheld from disclosure in defiance of both congressional and FOIA requests.  Obviously, Holder did not want an opinion that demonstrated the duplicity of his actions to see the light of day.  Fortunately, this unconstitutional atrocity was sidetracked and killed by procedural obstacles unrelated to its constitutionality.  Thanks to Mr. Trump's election, it is unlikely to see the light of day again -- unless it is resurrected like some legislative vampire by another anti-constitutional Democratic administration we can all hope will never arise.

     Nonetheless, the pattern of politicized lawlessness established by the likes of Sally Yates and Eric Holder should be a warning to all who support the efforts of the Trump Administration to restore a standard of responsible law enforcement in the wake of the disastrous legal carnage of the Obama regime.  Both Yates and Holder wrongfully rejected clearly correct OLC opinions in order to further the partisan goals and campaigns of the Democratic Left.  These lawless Democrat radicals -- especially the lawless radical lawyers -- will stop at nothing, least of all the constraints of the Constitution and the rule of law, in their fanatical efforts to subvert the President's efforts to make America great, secure, and safe again.


1 comment:

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