freedom | thrash
She chose to say in public she would not defend the Order because she thought it was not legal
And what if she must make false or otherwise disqualifying statements in order to defend the Executive Order?
This is a problem that will come up as long as the Trump administration insists on issuing orders without running them through OLC, first.
NBC is reporting that the document was not reviewed by DHS, the Justice Department, the State Department, or the Department of Defense, and that National Security Council lawyers were prevented from evaluating it. Moreover, the New York Times writes that Customs and Border Protection and U.S. Citizen and Immigration Services, the agencies tasked with carrying out the policy, were only given a briefing call while Trump was actually signing the order itself. Yesterday, the Department of Justice gave a "no comment" when asked whether the Office of Legal Counsel had reviewed Trump's executive orders—including the order at hand. (OLC normally reviews every executive order.)
This order reads to me, frankly, as though it was not reviewed by competent counsel at all.
That unkind assessment comes from
Benjamin Wittes↱, a fellow at both Hoover and Brookings, and editor in chief at Lawfare.
I would wax triumphant about the mitigating effect of incompetence on this document, but alas, I can't do it. The president's powers in this area are vast, as I say, and while the incompetence is likely to buy the administration a world of hurt in court and in diplomacy in the short term, this order is still going take more than a few pounds of flesh out of a lot of innocent people.
Moreover, it's a very dangerous thing to have a White House that can't with the remotest pretense of competence and governance put together a major policy document on a crucial set of national security issues without inducing an avalanche of litigation and wide diplomatic fallout. If the incompetence mitigates the malevolence in this case, that'll be a blessing. But given the nature of the federal immigration powers, the mitigation may be small and the blessing short-lived; the implications of having an executive this inept are not small and won't be short-lived.
And we should note that those few pounds of flesh taken from a lot of innocent people is the point; as
I wrote yesterday↑, this is a mean spirit stalking the land; these are people who don't care about winning and losing because we all die someday, and
he who laughs the hardest at the most other people getting hurt wins, and that's the way it goes with these people.
We'll see what DoJ comes up with in support of their boss. Also watch for Noel Francisco, acting Solicitor General of the United States. We'll have to see what he comes up with.
Meanwhile,
Michael McAuliff and Ryan Reilly↱ at HuffPo suggest OLC did sketch a basic review, but there are still problems:
A Justice Department spokesman told The Huffington Post on Monday that that Office of Legal Counsel has traditionally answered the "narrow question" of whether executive orders are lawful on their face and properly drafted. The spokesman said that continues to be the case in the first 10 days of the Trump administration.
"OLC has continued to serve this traditional role in the present administration, and to date has approved the signed orders with respect to form and legality," the spokesman said.
But here's the key part of the statement: "OLC's legal review has been conducted without the involvement of Department of Justice leadership, and OLC's legal review does not address the broader policy issues inherent in any executive order."
In other words, the Office of Legal Counsel approved the language and basic legality of the executive orders, but did not look at the broader potential impact and potential complications. And DOJ leadership, which in this case means acting Attorney General Sally Yates and others, were not involved in the process at all.
The problem is going to come in those complications.
For instance,
Aaron Blake↱ of the
Washington Post notes, to the one:
A familiar talking point has permeated the many Republican defenses of Donald Trump's controversial travel entry ban: It's not a "Muslim ban."
"This is not a ban on Muslim refugees," Rep. Todd Rokita (R-Ind.) assured. “Everybody needs to take a deep breath; there is no litmus test based on religion," Rep. Tom Emmer (R-Minn.) said. “It's simply wrong to call the president's executive order concerning immigration and refugees 'a religious test' of any kind," Sen. Tom Cotton (R-Ark.) argued.
Trump himself issued a statement Sunday saying the same: "To be clear, this is not a Muslim ban, as the media is falsely reporting."
And then, to the other:
It was Trump, after all, who once actually did propose a Muslim ban. It's still on his campaign website, more than a year later: "DONALD J. TRUMP STATEMENT ON PREVENTING MUSLIM IMMIGRATION."
Then Trump confidant Rudy Giuliani took to Fox News on Saturday night and said Trump basically was shooting for a Muslim ban with his executive order but recognized it needed to be altered to pass muster.
Fox News host Jeannine Pirro asked Giuliani, “How did the president decide the seven countries?”
“I'll tell you the whole history of it," Giuliani said. "So when [Trump] first announced it, he said, 'Muslim ban.' He called me up. He said, 'Put a commission together. Show me the right way to do it legally.'"
Giuliani continued: “And what we did was, we focused on, instead of religion, danger — the areas of the world that create danger for us. Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that's what the ban is based on. It's not based on religion. It's based on places where there are substantial evidence that people are sending terrorists into our country.”
And that's where they are at. Ostensibly, constricting migration and travel from certain countries is perfectly legal. Ostensibly, the document looks approximately like a proper legal form. And that's the whole of the review. Giuliani's explanation is basically the problem government lawyers face; it's one thing to say
this is what the order is supposed to do, it is another to find some explanation around how
that is what it actually does.
This is, actually, a version of the infamous Southern Strategy escalated to the world stage. And the thing is that in the end it was so transparent that when things weren't working out, they went ahead, anyway. Sixty-five percent of crack users were white; thus the natural inclination of the federal government was to take it out on black people―in excess of ninety percent of federal crack prosecutions were against black suspects, and on the state level, nobody can point to a time and place in the country by which what happened in Tulia, Texas, could happen if the colors were reversed. In the end,
you can't say, "Nigger, nigger, nigger"↱, as the argument goes, so you stir a bunch of law and order talk and take it out on black people, anyway. And these days you can't say, "Muslim, Muslim, Muslim", so the Trump administration stirs a bunch of law and order talk and takes it out on Muslims, anyway.
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Notes:
Blake, Aaron. "Republicans insist this isn't a 'Muslim ban.' Trump and Giuliani aren't helping their cause at all." The Washington Post. 30 January 2017. WashingtonPost.com. 30 January 2017. http://wapo.st/2kb8iEM
McAuliff, Michael and Ryan J. Reilly. "Justice Department Said Trump's Refugee Ban Is Legal. They Didn't Say It Was A Good Idea." The Huffington Post. 30 January 2017. http://huff.to/2jPSB57
Perlstein, Rick. "Exclusive: Lee Atwater's Infamous 1981 Interview on the Southern Strategy". The Nation. 13 November 2012. http://bit.ly/1RWUv1B
Wittes, Benjamin. "Malevolence Tempered by Incompetence: Trump's Horrifying Executive Order on Refugees and Visas". Lawfare. 28 January 2017. Lawfare.com. 30 January 2017. http://bit.ly/2jObbNt
