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Another whistleblower bites the dust, kinda.
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Another lawyer (well, famous law professor) criticizing Yates.
Acting Attorney General Sally Yates made a "serious mistake" Monday when she told Justice Department lawyers not to defend President Donald Trump's executive order temporarily banning people from seven majority-Muslim countries, emeritus Harvard law professor Alan Dershowitz said.
Yates, an appointee of former President Barack Obama, is engaging in "holdover heroism," Dershowitz told CNN's Erin Burnett.
"It's so easy to be a heroine when you're not appointed by this president, and when you're on the other side," he said. "She made a serious mistake."
Yates is serving only until Trump's attorney general nominee Jeff Sessions is confirmed in a vote expected later this week.
A proper move, according to Dershowitz, would have been for Yates to make "a nuanced analysis of what parts of the order are constitutional, what parts are in violation of the statute, what parts are perfectly lawful."
He cited a difference between green card holders, those who are in the country already who need to be deported, and those who are applying for visas.
"There is also a distinction between what's constitutional, what's statutorily prohibited, what's bad policy," he said, adding, "This is very bad policy."
But by lumping everything together, Yates has made "a political decision rather than a legal one," Dershowitz said.
"We have a hobby in this country: If you don't like something, you assume it's unconstitutional," Dershowitz said, noting even Massachusetts Sen. Elizabeth Warren, also a Harvard law professor, has made the mistake.
Warren, he said, "pointed to a part of the Constitution that says no religious test shall ever be required. But she didn't read the second part of it: for holding public office under the United States government. It has nothing to do with visas."
Still, he said, the First Amendment says "Congress shall make no law" establishing a religion or prohibiting the free exercise of it. "So, it's a prohibition on congressional action and presidential action."
Addressing speculation Trump would fire Yates, Dershowitz said that, too, would be a mistake.
Instead, he said, Trump should ignore Yates for the next few days and ask for appointment of a special defense attorney to defend his order.
"The president has a right to have his actions defended," he said.
Source
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On January 31 2017 12:55 TheTenthDoc wrote:Show nested quote +On January 31 2017 12:47 LegalLord wrote:On January 31 2017 12:43 TheTenthDoc wrote:
Government workers can and should always be able to refuse to do their job (provided they accept the penalty, which she clearly knew was coming), and while going public with why she was refusing was bombastic and breaking with protocol her refusal would have ended up public knowledge anyway and we live in an age where bombastic and breaking with protocol is the new black. It looks to me like a pretty severe violation of professional ethics. I'm not a lawyer but at least one lawyer (xDaunt) here seems to agree that it's possibly actionable by the professional organization. That's not just "a choice she made" but something worse than that. My analogy would be an engineer who allows a safety hazard to develop because it would have been expensive to fix, resulting in a chemical explosion or the like. We can say that, but I don't think we're in a world where professional ethics matter to a lot of people anymore. Not more than doing what they personally believe is right, anyway. That's the nice thing about living in alternate realities, there's always someone to comfort ya. And if the engineer let the safety hazard develop because of their moral compass, rather than because it's expensive? They might get sacked, but hey. They'll sleep better and won't be short of sympathetic ears. Pharmacists run the risk of doing that all the time (one could argue not dispensing the morning after pill is a breach of professional ethics to me-but not to others).
The ethical code that lawyers are bound to is very different from those binding most other professions. It's a very strictly regulated profession ethically where there are certain things that attorneys simply aren't allowed to do. There are also strict protocols detailing how an attorney is supposed to deal with a situation like the one that Yates felt that she faced. She very clearly did not comply with them. I haven't worked as a government lawyer, but I highly doubt that what she did was any more appropriate than a private practice attorney throwing his client under the bus publicly. You just don't do that.
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On January 31 2017 12:48 GreenHorizons wrote:
Trump's on a roll btw, just fired ICE's director too.
This is how one drains the swamp.
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On January 31 2017 13:29 xDaunt wrote:Show nested quote +On January 31 2017 12:55 TheTenthDoc wrote:On January 31 2017 12:47 LegalLord wrote:On January 31 2017 12:43 TheTenthDoc wrote:
Government workers can and should always be able to refuse to do their job (provided they accept the penalty, which she clearly knew was coming), and while going public with why she was refusing was bombastic and breaking with protocol her refusal would have ended up public knowledge anyway and we live in an age where bombastic and breaking with protocol is the new black. It looks to me like a pretty severe violation of professional ethics. I'm not a lawyer but at least one lawyer (xDaunt) here seems to agree that it's possibly actionable by the professional organization. That's not just "a choice she made" but something worse than that. My analogy would be an engineer who allows a safety hazard to develop because it would have been expensive to fix, resulting in a chemical explosion or the like. We can say that, but I don't think we're in a world where professional ethics matter to a lot of people anymore. Not more than doing what they personally believe is right, anyway. That's the nice thing about living in alternate realities, there's always someone to comfort ya. And if the engineer let the safety hazard develop because of their moral compass, rather than because it's expensive? They might get sacked, but hey. They'll sleep better and won't be short of sympathetic ears. Pharmacists run the risk of doing that all the time (one could argue not dispensing the morning after pill is a breach of professional ethics to me-but not to others). The ethical code that lawyers are bound to is very different from those binding most other professions. It's a very strictly regulated profession ethically where there are certain things that attorneys simply aren't allowed to do. There are also strict protocols detailing how an attorney is supposed to deal with a situation like the one that Yates felt that she faced. She very clearly did not comply with them. I haven't worked as a government lawyer, but I highly doubt that what she did was any more appropriate than a private practice attorney throwing his client under the bus publicly. You just don't do that.
AG is not an ordinary lawyer though. The old lawyer ethic of "everybody deserves representation, no matter how heinous" is put up against an oath to defend the constitution. For an ordinary attorney to publicly refuse to defend someone would be an ethical breach. But what "client" is the AG abandoning?
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On January 31 2017 13:43 ChristianS wrote:Show nested quote +On January 31 2017 13:29 xDaunt wrote:On January 31 2017 12:55 TheTenthDoc wrote:On January 31 2017 12:47 LegalLord wrote:On January 31 2017 12:43 TheTenthDoc wrote:
Government workers can and should always be able to refuse to do their job (provided they accept the penalty, which she clearly knew was coming), and while going public with why she was refusing was bombastic and breaking with protocol her refusal would have ended up public knowledge anyway and we live in an age where bombastic and breaking with protocol is the new black. It looks to me like a pretty severe violation of professional ethics. I'm not a lawyer but at least one lawyer (xDaunt) here seems to agree that it's possibly actionable by the professional organization. That's not just "a choice she made" but something worse than that. My analogy would be an engineer who allows a safety hazard to develop because it would have been expensive to fix, resulting in a chemical explosion or the like. We can say that, but I don't think we're in a world where professional ethics matter to a lot of people anymore. Not more than doing what they personally believe is right, anyway. That's the nice thing about living in alternate realities, there's always someone to comfort ya. And if the engineer let the safety hazard develop because of their moral compass, rather than because it's expensive? They might get sacked, but hey. They'll sleep better and won't be short of sympathetic ears. Pharmacists run the risk of doing that all the time (one could argue not dispensing the morning after pill is a breach of professional ethics to me-but not to others). The ethical code that lawyers are bound to is very different from those binding most other professions. It's a very strictly regulated profession ethically where there are certain things that attorneys simply aren't allowed to do. There are also strict protocols detailing how an attorney is supposed to deal with a situation like the one that Yates felt that she faced. She very clearly did not comply with them. I haven't worked as a government lawyer, but I highly doubt that what she did was any more appropriate than a private practice attorney throwing his client under the bus publicly. You just don't do that. AG is not an ordinary lawyer though. The old lawyer ethic of "everybody deserves representation, no matter how heinous" is put up against an oath to defend the constitution. For an ordinary attorney to publicly refuse to defend someone would be an ethical breach. But what "client" is the AG abandoning?
The client is the government of the US, and very specifically, the Trump administration.
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On January 31 2017 13:56 xDaunt wrote:Show nested quote +On January 31 2017 13:43 ChristianS wrote:On January 31 2017 13:29 xDaunt wrote:On January 31 2017 12:55 TheTenthDoc wrote:On January 31 2017 12:47 LegalLord wrote:On January 31 2017 12:43 TheTenthDoc wrote:
Government workers can and should always be able to refuse to do their job (provided they accept the penalty, which she clearly knew was coming), and while going public with why she was refusing was bombastic and breaking with protocol her refusal would have ended up public knowledge anyway and we live in an age where bombastic and breaking with protocol is the new black. It looks to me like a pretty severe violation of professional ethics. I'm not a lawyer but at least one lawyer (xDaunt) here seems to agree that it's possibly actionable by the professional organization. That's not just "a choice she made" but something worse than that. My analogy would be an engineer who allows a safety hazard to develop because it would have been expensive to fix, resulting in a chemical explosion or the like. We can say that, but I don't think we're in a world where professional ethics matter to a lot of people anymore. Not more than doing what they personally believe is right, anyway. That's the nice thing about living in alternate realities, there's always someone to comfort ya. And if the engineer let the safety hazard develop because of their moral compass, rather than because it's expensive? They might get sacked, but hey. They'll sleep better and won't be short of sympathetic ears. Pharmacists run the risk of doing that all the time (one could argue not dispensing the morning after pill is a breach of professional ethics to me-but not to others). The ethical code that lawyers are bound to is very different from those binding most other professions. It's a very strictly regulated profession ethically where there are certain things that attorneys simply aren't allowed to do. There are also strict protocols detailing how an attorney is supposed to deal with a situation like the one that Yates felt that she faced. She very clearly did not comply with them. I haven't worked as a government lawyer, but I highly doubt that what she did was any more appropriate than a private practice attorney throwing his client under the bus publicly. You just don't do that. AG is not an ordinary lawyer though. The old lawyer ethic of "everybody deserves representation, no matter how heinous" is put up against an oath to defend the constitution. For an ordinary attorney to publicly refuse to defend someone would be an ethical breach. But what "client" is the AG abandoning? The client is the government of the US, and very specifically, the Trump administration.
Ah, Trump going full "l'etat c'est moi"
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On January 31 2017 13:56 xDaunt wrote:Show nested quote +On January 31 2017 13:43 ChristianS wrote:On January 31 2017 13:29 xDaunt wrote:On January 31 2017 12:55 TheTenthDoc wrote:On January 31 2017 12:47 LegalLord wrote:On January 31 2017 12:43 TheTenthDoc wrote:
Government workers can and should always be able to refuse to do their job (provided they accept the penalty, which she clearly knew was coming), and while going public with why she was refusing was bombastic and breaking with protocol her refusal would have ended up public knowledge anyway and we live in an age where bombastic and breaking with protocol is the new black. It looks to me like a pretty severe violation of professional ethics. I'm not a lawyer but at least one lawyer (xDaunt) here seems to agree that it's possibly actionable by the professional organization. That's not just "a choice she made" but something worse than that. My analogy would be an engineer who allows a safety hazard to develop because it would have been expensive to fix, resulting in a chemical explosion or the like. We can say that, but I don't think we're in a world where professional ethics matter to a lot of people anymore. Not more than doing what they personally believe is right, anyway. That's the nice thing about living in alternate realities, there's always someone to comfort ya. And if the engineer let the safety hazard develop because of their moral compass, rather than because it's expensive? They might get sacked, but hey. They'll sleep better and won't be short of sympathetic ears. Pharmacists run the risk of doing that all the time (one could argue not dispensing the morning after pill is a breach of professional ethics to me-but not to others). The ethical code that lawyers are bound to is very different from those binding most other professions. It's a very strictly regulated profession ethically where there are certain things that attorneys simply aren't allowed to do. There are also strict protocols detailing how an attorney is supposed to deal with a situation like the one that Yates felt that she faced. She very clearly did not comply with them. I haven't worked as a government lawyer, but I highly doubt that what she did was any more appropriate than a private practice attorney throwing his client under the bus publicly. You just don't do that. AG is not an ordinary lawyer though. The old lawyer ethic of "everybody deserves representation, no matter how heinous" is put up against an oath to defend the constitution. For an ordinary attorney to publicly refuse to defend someone would be an ethical breach. But what "client" is the AG abandoning? The client is the government of the US, and very specifically, the Trump administration.
Just to be clear, you think the AG is ethically implored to defend unconstitutional acts of the administration or resign?
They wouldn't be under any ethical obligation to defend the constitution against an administration hostile toward it?
So Eric Holder had two choices, defend Obama whether he's acting constitutionally or not, or quietly resign?
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On January 31 2017 13:56 xDaunt wrote:Show nested quote +On January 31 2017 13:43 ChristianS wrote:On January 31 2017 13:29 xDaunt wrote:On January 31 2017 12:55 TheTenthDoc wrote:On January 31 2017 12:47 LegalLord wrote:On January 31 2017 12:43 TheTenthDoc wrote:
Government workers can and should always be able to refuse to do their job (provided they accept the penalty, which she clearly knew was coming), and while going public with why she was refusing was bombastic and breaking with protocol her refusal would have ended up public knowledge anyway and we live in an age where bombastic and breaking with protocol is the new black. It looks to me like a pretty severe violation of professional ethics. I'm not a lawyer but at least one lawyer (xDaunt) here seems to agree that it's possibly actionable by the professional organization. That's not just "a choice she made" but something worse than that. My analogy would be an engineer who allows a safety hazard to develop because it would have been expensive to fix, resulting in a chemical explosion or the like. We can say that, but I don't think we're in a world where professional ethics matter to a lot of people anymore. Not more than doing what they personally believe is right, anyway. That's the nice thing about living in alternate realities, there's always someone to comfort ya. And if the engineer let the safety hazard develop because of their moral compass, rather than because it's expensive? They might get sacked, but hey. They'll sleep better and won't be short of sympathetic ears. Pharmacists run the risk of doing that all the time (one could argue not dispensing the morning after pill is a breach of professional ethics to me-but not to others). The ethical code that lawyers are bound to is very different from those binding most other professions. It's a very strictly regulated profession ethically where there are certain things that attorneys simply aren't allowed to do. There are also strict protocols detailing how an attorney is supposed to deal with a situation like the one that Yates felt that she faced. She very clearly did not comply with them. I haven't worked as a government lawyer, but I highly doubt that what she did was any more appropriate than a private practice attorney throwing his client under the bus publicly. You just don't do that. AG is not an ordinary lawyer though. The old lawyer ethic of "everybody deserves representation, no matter how heinous" is put up against an oath to defend the constitution. For an ordinary attorney to publicly refuse to defend someone would be an ethical breach. But what "client" is the AG abandoning? The client is the government of the US, and very specifically, the Trump administration.
So there's already a weird case here in that the obligation the government is accused of violating (upholding the constitution) is an obligation the attorney also has. That already makes applying the normal ethics complicated
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On January 31 2017 14:00 ChristianS wrote:Show nested quote +On January 31 2017 13:56 xDaunt wrote:On January 31 2017 13:43 ChristianS wrote:On January 31 2017 13:29 xDaunt wrote:On January 31 2017 12:55 TheTenthDoc wrote:On January 31 2017 12:47 LegalLord wrote:On January 31 2017 12:43 TheTenthDoc wrote:
Government workers can and should always be able to refuse to do their job (provided they accept the penalty, which she clearly knew was coming), and while going public with why she was refusing was bombastic and breaking with protocol her refusal would have ended up public knowledge anyway and we live in an age where bombastic and breaking with protocol is the new black. It looks to me like a pretty severe violation of professional ethics. I'm not a lawyer but at least one lawyer (xDaunt) here seems to agree that it's possibly actionable by the professional organization. That's not just "a choice she made" but something worse than that. My analogy would be an engineer who allows a safety hazard to develop because it would have been expensive to fix, resulting in a chemical explosion or the like. We can say that, but I don't think we're in a world where professional ethics matter to a lot of people anymore. Not more than doing what they personally believe is right, anyway. That's the nice thing about living in alternate realities, there's always someone to comfort ya. And if the engineer let the safety hazard develop because of their moral compass, rather than because it's expensive? They might get sacked, but hey. They'll sleep better and won't be short of sympathetic ears. Pharmacists run the risk of doing that all the time (one could argue not dispensing the morning after pill is a breach of professional ethics to me-but not to others). The ethical code that lawyers are bound to is very different from those binding most other professions. It's a very strictly regulated profession ethically where there are certain things that attorneys simply aren't allowed to do. There are also strict protocols detailing how an attorney is supposed to deal with a situation like the one that Yates felt that she faced. She very clearly did not comply with them. I haven't worked as a government lawyer, but I highly doubt that what she did was any more appropriate than a private practice attorney throwing his client under the bus publicly. You just don't do that. AG is not an ordinary lawyer though. The old lawyer ethic of "everybody deserves representation, no matter how heinous" is put up against an oath to defend the constitution. For an ordinary attorney to publicly refuse to defend someone would be an ethical breach. But what "client" is the AG abandoning? The client is the government of the US, and very specifically, the Trump administration. So there's already a weird case here in that the obligation the government is accused of violating (upholding the constitution) is an obligation the attorney also has. That already makes applying the normal ethics complicated
It's not complicated at all. If the attorney believes that the client's desire is a breach of the attorney's professional obligations, then the attorney has an obligation to withdraw as counsel (ie resign) presuming that the client insists upon the allegedly questionable course of action.
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No irony there. Making it a public outing is where she went wrong.
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Canada8990 Posts
On January 31 2017 14:00 GreenHorizons wrote:Show nested quote +On January 31 2017 13:56 xDaunt wrote:On January 31 2017 13:43 ChristianS wrote:On January 31 2017 13:29 xDaunt wrote:On January 31 2017 12:55 TheTenthDoc wrote:On January 31 2017 12:47 LegalLord wrote:On January 31 2017 12:43 TheTenthDoc wrote:
Government workers can and should always be able to refuse to do their job (provided they accept the penalty, which she clearly knew was coming), and while going public with why she was refusing was bombastic and breaking with protocol her refusal would have ended up public knowledge anyway and we live in an age where bombastic and breaking with protocol is the new black. It looks to me like a pretty severe violation of professional ethics. I'm not a lawyer but at least one lawyer (xDaunt) here seems to agree that it's possibly actionable by the professional organization. That's not just "a choice she made" but something worse than that. My analogy would be an engineer who allows a safety hazard to develop because it would have been expensive to fix, resulting in a chemical explosion or the like. We can say that, but I don't think we're in a world where professional ethics matter to a lot of people anymore. Not more than doing what they personally believe is right, anyway. That's the nice thing about living in alternate realities, there's always someone to comfort ya. And if the engineer let the safety hazard develop because of their moral compass, rather than because it's expensive? They might get sacked, but hey. They'll sleep better and won't be short of sympathetic ears. Pharmacists run the risk of doing that all the time (one could argue not dispensing the morning after pill is a breach of professional ethics to me-but not to others). The ethical code that lawyers are bound to is very different from those binding most other professions. It's a very strictly regulated profession ethically where there are certain things that attorneys simply aren't allowed to do. There are also strict protocols detailing how an attorney is supposed to deal with a situation like the one that Yates felt that she faced. She very clearly did not comply with them. I haven't worked as a government lawyer, but I highly doubt that what she did was any more appropriate than a private practice attorney throwing his client under the bus publicly. You just don't do that. AG is not an ordinary lawyer though. The old lawyer ethic of "everybody deserves representation, no matter how heinous" is put up against an oath to defend the constitution. For an ordinary attorney to publicly refuse to defend someone would be an ethical breach. But what "client" is the AG abandoning? The client is the government of the US, and very specifically, the Trump administration. Just to be clear, you think the AG is ethically implored to defend unconstitutional acts of the administration?
I feel like she is not morally obligated to defend what she think are unconstitutional acts, but I don't see how it is acceptable for her to go to all her staff saying she is not gonna defend it, it's between the president and her. There is a difference between refusing to defend someone and saying to everyone that he is guilty.
And lets not forget that's it not like the executive order was blatantly unconstitutional, it might be but it is certainly something that can be argue in court.
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On January 31 2017 14:00 GreenHorizons wrote:Show nested quote +On January 31 2017 13:56 xDaunt wrote:On January 31 2017 13:43 ChristianS wrote:On January 31 2017 13:29 xDaunt wrote:On January 31 2017 12:55 TheTenthDoc wrote:On January 31 2017 12:47 LegalLord wrote:On January 31 2017 12:43 TheTenthDoc wrote:
Government workers can and should always be able to refuse to do their job (provided they accept the penalty, which she clearly knew was coming), and while going public with why she was refusing was bombastic and breaking with protocol her refusal would have ended up public knowledge anyway and we live in an age where bombastic and breaking with protocol is the new black. It looks to me like a pretty severe violation of professional ethics. I'm not a lawyer but at least one lawyer (xDaunt) here seems to agree that it's possibly actionable by the professional organization. That's not just "a choice she made" but something worse than that. My analogy would be an engineer who allows a safety hazard to develop because it would have been expensive to fix, resulting in a chemical explosion or the like. We can say that, but I don't think we're in a world where professional ethics matter to a lot of people anymore. Not more than doing what they personally believe is right, anyway. That's the nice thing about living in alternate realities, there's always someone to comfort ya. And if the engineer let the safety hazard develop because of their moral compass, rather than because it's expensive? They might get sacked, but hey. They'll sleep better and won't be short of sympathetic ears. Pharmacists run the risk of doing that all the time (one could argue not dispensing the morning after pill is a breach of professional ethics to me-but not to others). The ethical code that lawyers are bound to is very different from those binding most other professions. It's a very strictly regulated profession ethically where there are certain things that attorneys simply aren't allowed to do. There are also strict protocols detailing how an attorney is supposed to deal with a situation like the one that Yates felt that she faced. She very clearly did not comply with them. I haven't worked as a government lawyer, but I highly doubt that what she did was any more appropriate than a private practice attorney throwing his client under the bus publicly. You just don't do that. AG is not an ordinary lawyer though. The old lawyer ethic of "everybody deserves representation, no matter how heinous" is put up against an oath to defend the constitution. For an ordinary attorney to publicly refuse to defend someone would be an ethical breach. But what "client" is the AG abandoning? The client is the government of the US, and very specifically, the Trump administration. Just to be clear, you think the AG is ethically implored to defend unconstitutional acts of the administration or resign?
Yes.
They wouldn't be under any ethical obligation to defend the constitution against an administration hostile toward it?
This is where it gets a little fuzzy for me because I haven't practiced as a government attorney, but I believe logically that the answer is no. Governmental actions get challenged constitutionally all of the time, and it's the job of AG to defend the constitutionality of the action. If AG's could simply refuse to fulfill this function when they wished, there'd be chaos. The obvious balance to this problem is that other attorneys can make the challenge in court where the issue will be decided through proper judicial channels.
So Eric Holder had two choices, defend Obama whether he's acting constitutionally or not, or quietly resign?
Yes.
EDIT: If you're referring to DOMA here, then the calculation is a little bit different. The US Supreme Court had already stepped in basically resolved the issue, thereby making a defense of DOMA fairly close to being frivolous.
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I'm confused about the succession order;
according to https://www.law.cornell.edu/uscode/text/28/508
the associate attorney general should take over if the AG and deputy AG aren't available.
the deputy attorney general was yates, who then became acting AG.
with yates gone, the next person in line should be the associate attorney general William Baer
so how did trump appoint someone else instead?
it's late and i'm getting tired. let me know if anyone finds out the answer.
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Wouldn't that be not defending the constitution?
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On January 31 2017 14:14 ChristianS wrote:
Wouldn't that be not defending the constitution?
The Attorney General is appointed by the President and takes office after confirmation by the United States Senate. He or she serves at the pleasure of the president and can be removed by the president at any time; the attorney general is also subject to impeachment by the House of Representatives and trial in the Senate for "treason, bribery, and other high crimes and misdemeanors".
The office of Attorney General was established by Congress by the Judiciary Act of 1789. The original duties of this officer were "to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his or her advice and opinion upon questions of law when required by the president of the United States, or when requested by the heads of any of the departments."[1]
From wikipedia.
I'm inclined to believe the earlier post about the proper course of action, where she should've acted in an advisory capacity. That advice could be that the EO is unenforceable, but flat out refusing to do stuff means she gets removed.
That said, the betraying the government thing statement also looks pretty fucking terrible.
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Oh, I wasn't arguing that he shouldn't remove her. That he labeled her a traitor is some run-of-the-mill beyond the pail Trump discourse - unacceptable behavior from the President, does clear damage to the integrity of our democracy, but I'm sure another one of those will happen by the time I wake up in the morning so oh well, I guess.
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At this point I find more humor than outrage in all the absurd things Trump does. I try to focus more on the policy results of his actions than how stupid it ends up looking.
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EPT
