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In that field very low level jobs are entirely professional and very high level jobs are entirely political, which makes the oil lawyer analogy invalid. There

by VLM 10y ago

In that field very low level jobs are entirely professional and very high level jobs are entirely political, which makes the oil lawyer analogy invalid. There is no professional insight in a political act and vice versa. In this specific example she made a highly public political act containing no professional content, naturally that results in firing.

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rayiner 10y ago
Even low level federal officials have an independent duty not to violate peoples' constitutional rights. They can be held personally liable for violating clearly established constitutional law, and following administration policy is not a defense. Usually the "clearly established" part protects the low level folks, but here you could see CBP line agents being held personally liable for excluding green card holders. On top of that, the AG has additional obligations as an attorney. An attorney must sign her name to every legal argument she makes to the court. She may not permit a non-attorney to override her legal judgment. Here, the AG did not hold a press release discussing the politics of immigration. She told her subordinates not to make legal arguments defending the order--arguments she would have had to sign her name to. It is absolutely an exercise of professional judgment, not policymaking. Of course Trump can fire her for any reason. But the public is also entitled to draw reasonable inferences from those actions.
- jdp23 10y ago
  Indeed - there are limits to the "only following orders" defense. rayiner, I'm curious what you think about Dershowitz' argument that she should have resigned? http://thehill.com/blogs/pundits-blog/the-administration/317081-shes-no-hero-sally-yates-should-have-resigned http://thehill.com/blogs/pundits-blog/the-administration/317...
  - rayiner 10y ago
    I think her legal objection was overbroad, in that there is some subset of the order that could have been defended in good faith. And, in general, the right thing for a lawyer to do when she cannot proceed on ethical grounds is to resign quietly so as to not prejudice the client. But I think Dershowitz ignores crucial situational context. He says: "A responsible attorney general would seek to analyze these complex issues before jumping into the political fire with a blanket refusal to defend any part of the order." That's fine and good in theory, but this order was implemented over a weekend with apparently no vetting by the DOJ. It was almost certainly unconstitutional as applied in many situations. And Yates would have to send attorneys into courts to defend the order right now. She did not have the luxury of taking time to figure out what "parts of [the order] are legally defensible." Remember, contemporaneously with firing Yates, the White House did a 180 on one of the key legal interpretations: that the order applied to green card holders. You do not go into court and advance a legal argument, and then tell the court sometime later "oh, now that we have had a chance to actually analyze these complex legal issues, we were wrong on A, B, and C." As a supervising lawyer, Yates could not tell her subordinates "defend the order for now, but we may have to walk some of this stuff back once we figure out what is actually legal."
  - eli_gottlieb 10y ago
    Dershowitz needs to buy his soul back from Satan and stop supporting the Trump administration.

by VLM 10y ago

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rayiner 10y ago

Even low level federal officials have an independent duty not to violate peoples' constitutional rights. They can be held personally liable for violating clearly established constitutional law, and following administration policy is not a defense. Usually the "clearly established" part protects the low level folks, but here you could see CBP line agents being held personally liable for excluding green card holders. On top of that, the AG has additional obligations as an attorney. An attorney must sign her name to every legal argument she makes to the court. She may not permit a non-attorney to override her legal judgment. Here, the AG did not hold a press release discussing the politics of immigration. She told her subordinates not to make legal arguments defending the order--arguments she would have had to sign her name to. It is absolutely an exercise of professional judgment, not policymaking. Of course Trump can fire her for any reason. But the public is also entitled to draw reasonable inferences from those actions.

jdp23 10y ago
Indeed - there are limits to the "only following orders" defense. rayiner, I'm curious what you think about Dershowitz' argument that she should have resigned? http://thehill.com/blogs/pundits-blog/the-administration/317081-shes-no-hero-sally-yates-should-have-resigned http://thehill.com/blogs/pundits-blog/the-administration/317...
- rayiner 10y ago
  I think her legal objection was overbroad, in that there is some subset of the order that could have been defended in good faith. And, in general, the right thing for a lawyer to do when she cannot proceed on ethical grounds is to resign quietly so as to not prejudice the client. But I think Dershowitz ignores crucial situational context. He says: "A responsible attorney general would seek to analyze these complex issues before jumping into the political fire with a blanket refusal to defend any part of the order." That's fine and good in theory, but this order was implemented over a weekend with apparently no vetting by the DOJ. It was almost certainly unconstitutional as applied in many situations. And Yates would have to send attorneys into courts to defend the order right now. She did not have the luxury of taking time to figure out what "parts of [the order] are legally defensible." Remember, contemporaneously with firing Yates, the White House did a 180 on one of the key legal interpretations: that the order applied to green card holders. You do not go into court and advance a legal argument, and then tell the court sometime later "oh, now that we have had a chance to actually analyze these complex legal issues, we were wrong on A, B, and C." As a supervising lawyer, Yates could not tell her subordinates "defend the order for now, but we may have to walk some of this stuff back once we figure out what is actually legal."
- eli_gottlieb 10y ago
  Dershowitz needs to buy his soul back from Satan and stop supporting the Trump administration.