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“I made a determination that I believed that it was unlawful”

Much of what Sally Yates testified to yesterday had already been reported. But she did say something new, at least according to LawFare’s Jack Goldsmith:

Yates changed her story from January about why she refused to defend the (first) Immigration Executive Order (EO).

In January I wrote about the unsigned letter that Yates sent to DOJ officials to explain her decision not to defend the EO in court. To recap what I said then: As Acting Attorney General, Yates had the authority to determine whether DOJ would defend the EO in Court. But under traditional Department practices, Yates had a duty to defend the EO, even if she was unconvinced of its legality or even believed it was probably unlawful, if there was a reasonable argument that could be made for its legality.

Goldsmith quotes Yates’ letter, where she said she was “not convinced” the order was lawful, and continues:

Today, Yates seemed to change her story. Many of the factors she relied on in the January letter – for example, whether “the policy choice embodied in an Executive Order is wise or just,” and DOJ’s “solemn obligation to always seek justice and stand for what is right” – were not emphasized today. Instead, Yates relied on two arguments that (as best I can tell) were not presented in her January letter.

First, Yates today stated several times that she refused to enforce the EO in January because she had concluded that it was unlawful. For example, she said:

— “Yes, because in this instance, in looking at what the intent was of the executive order, which was derived in part from an analysis of facts outside the face of the order, that is part of what led to our conclusion that it was not lawful, yes.”

— “I made a determination that I believed that it was unlawful.”

— “I said it was unlawful.”

— “That’s correct” (in response to Senator Durbin’s claim that Yates’ “conclusion about the unlawful nature of the Muslim travel ban” was the same position later reached by the federal courts).

— “I believe that 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.”

— “That’s correct” (in response to Senator Kennedy’s question whether Yates “declined to support – to defend President Trump’s executive order because you thought it was unconstitutional.”)

Goldsmith – who served as Assistant Attorney General, Office of Legal Council to President George W. Bush from 2003-2004 – does a whole lot of nit-picking to distinguish being “not convinced” the order was unlawful and “I made a determination that it was unlawful.” He even admits he’s “splitting hairs,” that Yates may have meant in January what she said yesterday, and she simply expressed it more forcefully in her testimony. Well, duh.

But he then goes on to argue that even if she believed the order was unlawful, she had a duty to defend it because the God-King obviously thought otherwise:

I did not write this in my original January post, but the reasonableness standard is the one the Department employs for defending congressional statutes. As Marty Lederman noted in our podcast debate, the Department traditionally always defends an EO on the theory that the President has determined it to be lawful. As Marty stated: “As long as the President’s view is that it’s lawful, of course the Department of Justice will defend its legality in court because the President gets the final word on how the Executive branch and the Department in particular, what position they take in court.” On this view, which is probably right, Yates views about the legality of the EO were technically irrelevant.

That word “probably” in the last sentence carries a wheelbarrow full of bovine excrement. No, the president does not get “the final word” on how the DOJ interpret and apply laws and executive orders. That may have been how it worked in the Bush years, but that’s the same administration that did legal backflips to defend torture. Their practices were hardly a model of the DOJ defending the Constitution, federal statutes, and treaties like the Geneva Convention that carry the force of U.S. law.

“Incredibly painful”

That’s how FBI Director James Comey described his late-October decision to go public with the news that the FBI had found some Hillary Clinton emails to Huma Abedin on Anthony Weiner’s laptop. It might get less painful if he’d stop lying:

Perhaps Comey’s most surprising revelation was that Huma Abedin – Weiner’s wife and a top Clinton deputy – had made “a regular practice” of forwarding “hundreds and thousands” of Clinton messages to her husband, “some of which contain classified information.” Comey testified that Abedin had done this so that the disgraced former congressman could print them out for her boss.

That was indeed A Very Big Story, with wingnuts yet again taking to social media to howl “Lock her up!”

And it was false, ProPublica’s Peter Elkind explains:

FBI officials have privately acknowledged that Comey misstated what Abedin did and what the FBI investigators found. On Monday, the FBI was said to be preparing to correct the record by sending a letter to Congress later this week. But that plan now appears on hold, with the bureau undecided about what to do.
According to two sources familiar with the matter – including one in law enforcement – Abedin forwarded only a handful of Clinton emails to her husband for printing – not the “hundreds and thousands” cited by Comey. It does not appear Abedin made “a regular practice” of doing so. Other officials said it was likely that most of the emails got onto the computer as a result of backups of her Blackberry.

It was not clear how many, if any, of the forwarded emails were among the 12 “classified” emails Comey said had been found on Weiner’s laptop. None of the messages carried classified markings at the time they were sent.

Yet again, Director Comey has damaged the FBI’s credibility by leaping past the facts. I’d suggest he should be fired, but the God-King sees leaping past the facts as a virtue, not a flaw. Sigh.

“We just need to make sure we’re not losing too many conservative votes”

The Huffington Post’s Matt Fuller has bad news for people who think Senate Republicans will save them from the GOP’s Wealthcare Act:

Democrats may overestimate the level of disagreement between the two chambers. And if the last two months have proved anything, it’s that we’re underestimating the ability of Republicans to accept a flawed bill in the name of winning.

We may also be surprised by what House conservatives could accept from the Senate.

House Freedom Caucus Chairman Mark Meadows (R-NC) has already been working with Senate Republicans on what changes House conservatives could live with, knowing that the Senate bill will probably undo some cuts to Medicaid and perhaps a key amendment that brought conservatives onboard in the first place.

“If it’s moving to the left, we just need to make sure we’re not losing too many conservative votes,” Meadows told HuffPost on Friday. “Obviously it’s going to get more relaxed as it relates to the Medicaid expansion.”

In other words, “We’re gonna stick their bill in a drawer and start from scratch” really means “We’re gonna pre-clear our bill with the most radical conservatives in the House.” So the Senate bill is very likely to look pretty much like the House bill, perhaps with a few numbers tweaked here and there.

Sometimes I hate to be right, and this is one of those times.

“Le Pen was the left wing’s caricature of Trump come to life”

The Washington Post’s Marc Thiessen ties himself into knots trying to explain why the loss of Trumpista Marine Le Pen is actually a win for the God-King:

The media are framing the defeat of Marine Le Pen in the French presidential election as a defeat for President Trump and his brand of populist nationalism. The Post reported that “France on Sunday shrugged off the siren call of right-wing populism that enchanted voters in the United States and the United Kingdom” and called the election of centrist Emmanuel Macron “a pointed endorsement of European unity.”

No, it wasn’t.

The French vote was not an endorsement of globalism or a vote of confidence in the French political establishment. It was a rejection of Le Pen’s toxic brand of Putinism and anti-Semitism. And the person who should be happiest that Le Pen lost is Trump. She would have been not an ally, but rather, an albatross for the president, because Le Pen was the left wing’s caricature of Trump come to life.

Oh really. Here’s Martin Longman in rebuttal:

It’s just that I am not sure the problem would have been that Le Pen is the left-wing caricature of Trump come to life. It’s not really clear to me how Trump and Le Pen differ in any of the respects that really matter. They seem to be very closely aligned.

Thiessen’s thesis is based on the left-wing caricature being distorted and unfair, primarily because he doesn’t buy that the Trump campaign is in the pocket of Putin or that anti-Semitism is fair charge to make against him. There are many possible theories of what the many connections between the Trump campaign and the Russians might mean, but it seems very premature to brush aside them all as insignificant. And as long someone like Steve Bannon is essentially running the Oval Office, charges of anti-Semitism cannot be dismissed. At a minimum, anti-Semites have taken comfort in how Trump staffed his administration.

Thiessen’s argument echoes the New York Times’ Ross Douthat’s complaint that, by passing the Wealthcare Act, House Republicans lived down to “the left-wing parody” of the GOP.

Here’s a thought. When the God-King and Republicans keep doing exactly what progressives predict, maybe our frames of the God King and the Republican Party aren’t “caricature” or “parody.” Maybe, just maybe, we see the God-King and the GOP more clearly than wishful thinkers who always find other reasons to explain policies of bigotry, cruelty, and selfishness.

“Communism stands for everything that the United States stands against”

And Republicans and wingnuts apparently never got the memo that the Cold War ended:

Being a communist would no longer be a fireable offense for California government employees under a bill passed Monday by the state Assembly.

Lawmakers narrowly approved the bill to repeal part of a law enacted during the Red Scare of the 1940s and ’50s when fear that communists were trying to infiltrate and overthrow the U.S. government was rampant. The bill now goes to the Senate.
Assemblyman Randy Voepel, a Southern California Republican who fought in the Vietnam War, said communists in North Korea and China are “still a threat.”

“This bill is blatantly offensive to all Californians,” said Assemblyman Travis Allen, a Republican who represents a coastal district in Southern California. “Communism stands for everything that the United States stands against.”

China is a rising rival in the southwest Pacific, that’s true. But China is no longer “communist” in any meaningful sense of that word. As for North Korea, it’s a straightforward dictatorship and the “communist” label is mere window dressing. But mere facts don’t stop wingnut websites from howling in outrage, because … well … they really, really miss the Cold War.

Except for the part about Russia being a threat to our democracy. They flip-flop between being fine with Russia helping to get the God-King elected and insisting that’s just a liberal conspiracy theory.

Which is to say, they don’t really give a damn about communism – which barely exists anymore – except as a rhetorical cudgel they can use to whack Democrats.


Photo Credit: CNN


Good day and good nuts