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The Russia Hearing

Sally Yates Fought Off a GOP Roast During the Russia Hearing

Republican Senators tried to make former acting Attorney General Sally Yates squirm, but Yates arrived ready for battle.

by Mike Pearl
May 9 2017, 3:45am

Credit: ASSOCIATED PRESS; Photographer: Pablo Martinez Monsivais

On Monday, all eyes were on former acting Attorney General Sally Yates, as a Senate judiciary subcommittee questioned her—alongside former Director of National Intelligence James Clapper—about Russian interference in the 2016 election, and interference in the Trump presidency itself. But most of the attempts to throw Yates off her game had nothing to do with Russia.

As you'll probably recall, Yates was fired in late January for instructing the Department of Justice not to enforce Trump's travel ban, so naturally the Republicans on the bipartisan subcommittee chaired by Republican Senator Lindsey Graham interrogated Yates about the decision that got her fired—in order to cast doubt upon her neutrality, maybe? Or to cast doubt on the credibility of her answers? Or something?

Anyway, no matter what you thought about the motivations of her interlocutors, there's no doubt she showed up ready to joust. At the very worst you'd have to call Yates' performance "shrewdly partisan," and at best, you could argue that she stood up to a roasting better than an Omanyte battling a Charizard.

Here were the highlights.

Ted Cruz Implied Yates Was a Partisan Operative Who Didn't Do Her Job

Texas senator Ted Cruz spent much of his time at the mic asking Clapper about emails without really making a clear point. Then he moved onto Yates, quoting the statute that basically said as President, Trump can decide to deny anyone entry to the country if he thinks they'd be "detrimental to the interest of the United States."

Without pausing, Yates said she was familiar with that statute, and busted out her own, which said "no person shall receive preference or be discriminated against in issuance of a visa because of race, nationality or place of birth." Then, without waiting for Cruz to try another jab, she said she wasn't focused on either statute, so much as "whether or not the executive order here violated the Constitution specifically with the establishment clause and equal protection and due process."

A moment later, when Cruz implied that she was being partisan in a statement about the executive order, Yates seemed to anticipate the criticism, and noted that another part of that very statement was about whether or not the order was illegal, which she thought it was. With that, the two had articulated the grey area that Yates' decision lived in: was she intervening to stop her boss from doing something illegal, or failing to do her job for partisan reasons? This remains a matter of dispute. For the record, some legal scholars agree with Cruz, and others side with Yates.

John Cornyn Said He Regretted Voting to Confirm Her

"I voted for your confirmation because I believed that you had a distinguished career," said other Texas Senator John Cornyn. But he called it "enormously disappointing," that Yates ignored the opinion of the Office of Legal Counsel "with regard to the lawfulness of the president's order."

Yates was ready with a callback to her Senate confirmation hearing, because the Republicans at that hearing, including now attorney general Jeff Sessions, devoted plenty of time to getting Yates to imply that she would disobey the president, at a time when the president's name was Barack Obama.

"In an exchange that I had with you and other of your colleagues where you specifically asked me in that hearing that if the president asked me to do something that was unlawful or unconstitutional," she recalled to Cornyn, "would I say no? And I looked at this, and I made a determination that I believed that it was unlawful."

"That's what I promised you I would do, and that's what I did," she added.

Weirdly, right after that, Cornyn goofed, and remarked that since Yates thought the order was lawful (which she didn't), it was beyond him why she would tell the DOJ to defy it. That allowed for an easy mic drop from Yates:

"Senator, I did not say it was lawful. I said it was unlawful," she said.

John Kennedy Got Very Philosophical

John Kennedy—not the dead president but a brand new Senator from Louisiana—began by asking Yates an easy question about whether she thought the order was constitutional, and when she almost elaborated, he cut her off. "Lemme stop you, because I've got a whole bunch of questions," he said. Kennedy did have a whole bunch of questions, and they were mind-blowing.

"I just want to understand your thinking from my perspective," Kennedy said, referring to what I think even William James would agree is the only way to understand someone else's thinking. A moment later he said, "I don't mean to wax too metaphysical, but at what point does an act of Congress, or an order become unconstitutional?" When Yates tried to answer the strange question somewhat vaguely, he pressed on: "Is it some a priori determination?" But he didn't wait for her to answer that, and asked a different question: "Who appointed you to the United States Supreme Court?" And when Yates didn't answer that counterfactual, he tossed out yet another question: "Aren't most acts of congress presumed to be constitutional?" The matter at hand, let's not forget, was an executive order, not an act of congress.

With Kennedy spinning his wheels, Yates restated her reasoning. "I believe it is the responsibility of the Attorney General, if the president asks him or her to do something that he or she believes is unlawful or unconstitutional, to say no. And that's what I did."

"OK. I get it," said Kennedy.

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