WASHINGTON — The Senate Judiciary Committee was poised to vote Tuesday on the nomination of Alabama Sen. Jeff Sessions for attorney general, just hours after President Trump fired acting Attorney General Sally Yates when she refused to defend his controversial refugee ban in court.
Sessions, who has helped shape the Trump administration’s hard-line immigration stance, is expected to pass on a strict party-line vote, though it was unclear whether Monday’s events, which cast the interim leadership at the Justice Department into turmoil, would alter the committee’s action.
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Sen. Jeff Sessions, R-Ala. testifies on Capitol Hill during his confirmation hearing on Jan. 10, ...
Sen. Jeff Sessions, R-Ala. testifies on Capitol Hill during his confirmation hearing on Jan. 10, 2017.
Judiciary Chairman Chuck Grassley, R-Iowa, opened Tuesday's meeting, asserting that Sessions played no role in the president's controversial executive actions.
"Some on the other side have raised concerns about whether Sen. Sessions was involved in drafting or reviewing the executive orders,'' Grassley said. "It’s not clear to me why it would be a problem even if he had been involved. But the fact of the matter is he wasn’t. In his written responses to Sen. Leahy, Sen. Sessions stated for the record 'neither I, nor any of my current staff' had a role in formulating or drafting the executive orders.
"Sen. Sessions has assured us that he will enforce the laws fully, fairly, and independently,'' Grassley said. "These answers, combined with his life of public service and his experience working with each of us, assure me that Senator Sessions will make an outstanding Attorney General.''
Sen. Dianne Feinstein, the panel's ranking Democrat, answered Grassley with a repudiation of Sessions' nomination, suggesting that the nominee would act as "an arm of the White House'' and would carry out the president's ''destructive policies.''
She cited Yates' firing, saying that the acting attorney general demonstrated the "guts'' necessary for the job by refusing to defend Trump's order.
"I have no confidence Sen. Sessions will do that,'' Feinstein said.
The ouster of Yates, an Obama administration appointee who was directing the department during the Trump administration transition, came after she notified Justice lawyers that she was “not convinced” that Trump’s executive order suspending immigration from seven majority Muslim countries was lawful.
"Ms. Yates is an Obama administration appointee who is weak on borders and very weak on illegal immigration," said a statement from the White House that appeared to be in Trump's own voice.
Trump appointed Dana Boente, the U.S. attorney for the Eastern District of Virginia, to serve as acting attorney general until Sessions can be confirmed. If the Senate Judiciary Committee votes to approve the nominee, a full Senate vote was expected by week’s end.
Boente was immediately sworn in at 9 p.m. Monday, and he quickly moved to rescind Yates’ notice to Justice lawyers.
“I will defend and enforce the laws of our country to ensure that our people and our nation are protected,” Boente said in a statement issued through the White House.
The stunning series of events that rolled late into Monday evening drew immediate comparisons to the so-called Saturday Night Massacre of Oct. 20, 1973, when then Attorney General Elliot Richardson and his deputy, William Ruckelshaus, chose to resign rather than obey President Nixon’s order to fire Watergate special prosecutor Archibald Cox.
Yates was deputy attorney general under President Obama and has been serving as acting attorney general since Loretta Lynch resigned on Inauguration Day. She had refused to defend his executive order, which has been challenged in court by civil liberties groups who argue it discriminates on the basis of religion.
“I am 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,” said Yates in a letter to Justice Department attorneys. “At present, I am not convinced that the defense of the executive order is consistent with these responsibilities nor am I convinced that the executive order is lawful.
“Consequently, for as long as I am the acting attorney general, the Department of Justice will not present arguments in defense of the executive order, unless and until I become convinced that it is appropriate to do so," wrote Yates.
Trump first responded to Yates via Twitter, characterizing the action as a "political" move to block his agenda.
"Democrats are delaying my cabinet picks for purely political reasons,'' Trump tweeted. "They have nothing going but to obstruct. Now have an Obama A.G."
Senate Democrats have objected to Sessions’ nomination, and Minority Leader Charles Schumer, D-N.Y., said Monday that Sessions should have to disclose his opinion of Trump’s immigration order before the Senate votes on his nomination.
Trump adviser Stephen Miller told MSNBC on Monday that Yates' decision is “a further demonstration of how politicized our legal system has become,” so much so that “you have people refusing to enforce our laws.” Miller said the president clearly has the legal authority to bar people from entry into the country for national security reasons.
But former Obama attorney general Eric Holder tweeted late Monday that Yates' "judgement should be trusted."
Trump's executive order had been reviewed and approved by the Justice Department Office of Legal Counsel before it was issued Friday — a point that White House press secretary Sean Spicer was quick to point out Monday night.
But Yates said the OLC's role was only to address the form of the order and whether it's is properly drafted. It “did not address whether any policy choice embodied in an executive order is wise or just,” Yates wrote. “My 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.”
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The executive order contains an exception for religious minorities from the banned countries, which are Iraq, Iran, Syria. Yemen, Sudan, Somalia and Libya. Trump told the Christian Broadcasting Network in an interview that aired Sunday that the intent was to protect Christian refugees.
Yates’ firing extended a chaotic weekend where lawyers flooded courtrooms around the country to try and halt the deportation of people who had arrived after Trump signed his executive order. A federal judge in New York issued an emergency, nationwide stay late Saturday barring the federal government from any more deportations.
Immigration advocacy groups have started filing broader lawsuits challenging the overall legality of Trump’s order.
A group of Michigan immigrants filed a suit in federal court in Virginia on Monday challenging the order on religious grounds. That suit claims Trump’s order discriminates against Muslims and violates constitutional protections for the free exercise of religion.
A separate lawsuit filed in federal court in Seattle on Monday claims that Trump’s order violates a federal law that prohibits discrimination against immigrants based on their country of origin. That lawsuit was filed on behalf of U.S.-based parents trying to reunite with their children in Somalia, Syria and Yemen.
Matt Adams, legal director of the Northwest Immigrant Rights Project and one of the attorneys in the suit, acknowledged that a president had broad powers to oversee the nation’s immigration system. Federal law allows a president to bar entry to any immigrant, or entire classes of immigrants, if the president deems them “detrimental to the interests of the United States.”
But the lawsuit claims that Trump overstepped his legal authority by temporarily suspending all immigration from seven entire countries. It points to the Immigration and Nationality Act of 1965, which forbids discrimination based on a person’s nationality or country of origin.
“While the president has certain powers, he doesn’t have power to defy this clause,” Adams said.
Democrats in Congress have offered legislation to overturn Trump's order, but they have not gathered any Republican support. Democrats staged a protest on the steps of the Supreme Court on Monday evening to rail against the executive order.
Trump criticized Democrats in a series of tweets Tuesday morning, saying they were holding up Sessions' nomination for political reasons.
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