...Trump had a reason to be worried about the investigation into Flynn's calls. Some people say the Logan act is "outdated" and never gets enforced, but this is exactly the kind of situation the Logan act is for, and for every law there's a "case of first impression." And there might be more going on here, we don't know.

But what's more interesting is what the administration did when Yates told them the justice department was investigating Flynn's calls. Yates was in contact with the White House Counsel McGahn about the calls from the 26th to the 30th of January, when she was fired. During this, she told McGahn the calls were problematic, McGahn asked about the applicability of certain criminal statutes, and Yates arranged plans with the White House to go over the evidence. But if that were to happen, she would have been a witness to what the White House knew about the investigation and when they knew it:

http://www.cnn.com/TRANSCRIPTS/1705/19/acd.03.html

    ...COOPER: Do you agree there was no legal issue with Flynn's underlying behavior?

    YATES: I don't know how the White House reached the conclusion that there was no legal issue. It certainly wasn't from my discussion with them.

    ...COOPER: If you hadn't been fired, if you are still in your position and you hadn't seen action over the course of that 18 days, was there more your role as the acting attorney general would have permitted you to do?

    YATES: I would have gone back to the White House.

    COOPER: If you were still the acting attorney general, you would have gone back to the White House.

    YATES: I have been knocking on the door then, yes.

    COOPER: Why?

    YATES: Because I would have been concerned that we had a national security advisor who was compromised. I wouldn't be able to control what happened, but I would have gone back to White House.

Trump signed the travel ban right after learning about what Yates was doing, and a few days later he fired her for directing the DOJ not to defend it in court.

But the ban was illegal, and the Trump administration did a lot of things to make it that way. This is an unfinished essay, but read what's in here:

https://pastebin.com/Z0uwWFna

The ban was signed while a green card holder from Chicago was visiting his sick mother in Iran, and because of the ban he couldn't get back home. A family of U.S. citizens spent some of the little money they had and a lot of time trying to get their 12 year old daughter out of Yemen during a civil war, but they got stopped at the last minute by the ban. And the law and the Constitution are very explicit: the government can't arbitrarily do things like this to citizens, lawful permanent residents or even many kinds of visa holders without due process of law. And these are just two stories, there were hundreds or thousands of people affected by the ban.

These problems were basic Constitutional concepts and immigration law (district courts in New York, Virgina, Massachusetts, and California, and the 9th circuit, among others, would find as much). Trump had competent people working on the EO: according to then DHS secretary Kelly (https://www.youtube.com/watch?v=LxKJ0FEoFqY ), DHS' legal shop worked on the EO, including Gene Hamilton, a "key architect" of the ban who was General Counsel for Jeff Sessions while he was chairing the immigration subcommittee and rewriting large parts of the INA. Knowing the Constitution and immigration law is these peoples' job. And Trump's team had been working on the ban since the transition, while Hamilton was a member. So how did they get it so wrong?

Related to that, it's also weird that they way they handled the ban ended up letting them avoid confrontations about it's legality beforehand. Trump's team kept the ban under wraps right until the moment it was signed. Yates would have been able to tell them the ban was illegal, but Trump's team ignored procedures to avoid telling the Attorney General and Yates didn't hear about it until after it was signed. Trump's team submitted the EO to the OLC for a limited form of review, but asked the OLC not to tell Yates:

https://www.archives.gov/federal-register/codification/executive-order/11030.html

    (b) If the Director of the Office of Management and Budget approves the proposed Executive order or proclamation, he shall transmit it to the Attorney General for his consideration as to both form and legality.

    (c) If the Attorney General approves the proposed Executive order or proclamation, he shall transmit it to the Director of the Office of the Federal Register, National Archives and Records Administration: Provided, that in cases involving sufficient urgency the Attorney General may transmit it directly to the President; and provided further, that the authority vested in the Attorney General by this section may be delegated by him, in whole or in part, to the Deputy Attorney General, Solicitor General, or to such Assistant Attorney General as he may designate.

    (d) After determining that the proposed Executive order or proclamation conforms to the requirements of Section 1 of this order and is free from typographical or clerical error, the Director of the Office of the Federal Register shall transmit it and three copies thereof to the President.

    (e) If the proposed Executive order or proclamation is disapproved by the Director of the Office of Management and Budget or by the Attorney General, it shall not thereafter be presented to the President unless it is accompanied by a statement of the reasons for such disapproval.

http://www.cnn.com/TRANSCRIPTS/1705/19/acd.03.html

    ...COOPER: You're the acting attorney general of the United States of America.

    YATES: Right.

    COOPER: And you did not know about this executive order.

    YATES: That's right.

    COOPER: The department of justice has an office of legal counsel and they had been asked to weigh in on this executive order.

    YATES: They have been asked to review to review for that is called form and legality.

    COOPER: If the department of justice, their office of legal counsel was given a heads up so to speak about this and asked to review it, wouldn't they have given you head's up about it?

    YATES: Normally, they would. But my understanding is that they were asked not to tell us about it.

    COOPER: The department of justice's office of legal counsel was advised not to inform you specifically, the acting attorney general about this executive order.

    YATES: That's my understanding.

    COOPER: Do you know why you were not informed?

    YATES: I don't know. And I wasn't informed.

    COOPER: Is that normal procedure?

    YATES: No. First I heard of that.

    COOPER: You never heard it happening before.

    YATES: No.

The way they implemented the order only made the legal problems worse. According to a summary of the DHS OIG's report on the EO, it caught even top officials implementing it by surprise, and the administration didn't answer basic questions about the EO for the early period of its implementation:

https://www.oig.dhs.gov/file/4678/download?token=kEDXANI_

    We found:

        The leadership of CBP, the OHS entity primarily responsible for implementation of the order, had virtually no warning that the EO was to be issued or of the scope of the order, and was caught by surprise. Indeed, during the early period of implementation of the order, neither CBP nor the Department was sure of the answers to basic questions as to the scope of the order, such as whether the order applied to Lawful Permanent Residents (LPRs), a significant percentage of the affected travelers and a fundamental question that should have been resolved early in the process.

Gene Hamilton eventually told CBP to apply the EO to green card holders:

https://foiarr.cbp.gov/streamingWord.asp?i=1584

pg 20

    Was it your understanding that the EO was intended to apply to returning LPRs? [REDACTED]. Let me know. Thanks

    ...They should generally be proved the case-by-case exemption under 3(g), provided that it is in the national interest to do so (i.e. provided that there is no security risk being posed, meaning that there should be a revetting of sorts).

    ...Adding CoS,

    Gene, Understood. We want to faithfully and quickly execute the EO, but want everyone to know that this guidance changes our status.

    [REDACTED]. The 175 travelers a day average was for non-immigrant visa holders and non-LPR immigrant visas.

    It will be more like 600-800 a day including LPRs. We have 300 in the air inbound right now. And of course, they are revetted in a way to board the aircraft and re-enter the country.

    We will keep working up operational impact, but wanted to flag this as our understanding has changed.


CBP tried to let as many back in as they could, but enough got stranded to bring court cases that the DOJ would not be able to defend. After Yates was fired, the White House dialed back on the chaos: McGahn put out a memo on Feb 1 "clarifying" that the EO didn't apply to green card holders (which convinced some courts but not others), which might have made Yates' job easier if he'd done it earlier. A CBP employee who had been deleting GES (a kind of fast pass for airline travel) entries for green card holders franticly tried to reverse this after the memo (https://foiarr.cbp.gov/streamingWord.asp?i=1597 ), speaking to the confusion at CBP.

The confusion hit airlines too, with some calling CBP asking about a "green card ban:"

http://www.newsweek.com/trump-travel-ban-homeland-security-crisis-action-767877

    DHS officers were told to redirect airports and airlines with questions about the ban to a phone number with a Washington, D.C. area code for the DHS National Joint Information Center, the released documents confirm. However, some airline workers said the phone line was unresponsive or continuously busy.

    ...The confusion and subsequent critical response from DHS stemmed from the fact that Homeland Security officials didn't see the president's travel restrictions until he signed the executive order on January 27, one week into his presidency. The DHS crisis action team is used to coordinate communications and actions during massive incidents that involve federal, state, local, and private sector groups.

According to FOIA records, some airlines didn't get any guidance at all (https://foiarr.cbp.gov/streamingWord.asp?i=1596 ).

Trump did some legal sabotaging of the ban from a different angle. The Constitution forbids the government from making a law with the purpose of favoring one religion over another, or discriminating on the basis of religion. And this is for a good reason: people should be free to follow whatever religion they want without worrying, and shouldn't get caught up in fights over which religion gets favored or disfavored in our laws. Our country is more just and peaceful that way. But Trump ruined this when he said he intended to implement a "Muslim ban" during the campaign, then said his Muslim ban had morphed into a description of the one he signed on Jan 27th. The government cannot legally enact a law that is intended to discriminate, no matter what the law says on it's face. The case history on this goes back: laws intended to discriminate against African Americans never mentioned race, and actually a landmark case on this was about a law that tried to force out Chinese business owners by making different rules for business in brick buildings or wooden buildings, just because more Chinese people happened to use one over the other. All the things Trump has said about his intent to discriminate against Muslims with a ban (see above doc) make it impossible for an honest person to defend the travel ban, and alone might have been enough to strike it down in the Supreme Court (Trump withdrew it before then).

But before Trump signed the travel ban, he knew that the laws discriminating on religion are unconstitutional, and got confronted about this for his Muslim ban:

https://cases.justia.com/federal/district-courts/virginia/vaedce/1:2017cv00116/358386/111/0.pdf?ts=1487078541

    As the campaign proceeded, there were fewer references to an outright ban on Muslim immigration, with the focus switched to a ban on persons from territories that have a Muslim majority. Mr. Trump and then-vice-presidential candidate Mike Pence ("Pence") were asked about this evolution in an interview with Lesley Stahl ("Stahl") on July 17, 2016. The relevant portion reads:

        Stahl: [I]n December, you [i.e. Pence] tweeted, and I quote, "Calls to ban Muslims from entering the U.S are offensive and unconstitutional."

        Trump: So you call it territories. OK? We're gonna do territories. We're not gonna let people come in from Syria that nobody knows who they are.

        ...

        Stahl: [S]o you're changing ... your position.

        Trump: --No, I--call it whatever you want. We'll call it territories, OK?

        Stahl: So not Muslims?

        Trump: You know--the Constitution--there's nothing like it. But it doesn't necessarily give us the right to commit suicide as a country, OK? And I'll tell you this. Call it whatever you want, change territories [sic], but there are territories and terror states and terror nations that we're not gonna allow the people to come into our country.

https://www.nbcnews.com/meet-the-press/meet-press-july-24-2016-n615706

    CHUCK TODD: The Muslim ban. I think you've pulled back from it, but you tell me.

    (BEGIN TAPE)

    DONALD TRUMP: We must immediately suspend immigration from any nation that has been compromised by terrorism until such time as proven vetting mechanisms have been put in place.

    (END TAPE)

    CHUCK TODD: This feels like a slight rollback--

    DONALD TRUMP: I don't think that's--

    CHUCK TODD: Should it be interpreted--

    DONALD TRUMP: I don't think so. I actually don't think it's a rollback. In fact, you could say it's an expansion. I'm looking now at territories. People were so upset when I used the word Muslim. Oh, you can't use the word Muslim. Remember this. And I'm okay with that, because I'm talking territory instead of Muslim.

    But just remember this: Our Constitution is great. But it doesn't necessarily give us the right to commit suicide, okay? Now, we have a religious, you know, everybody wants to be protected. And that's great. And that's the wonderful part of our Constitution. I view it differently.

Trump knew from the campaign that his ban would face scrutiny for being a Muslim ban. But he put what looks like an allusion to his campaign stump speech on "radical Islam" in the text of the EO itself:

https://www.whitehouse.gov/presidential-actions/executive-order-protecting-nation-foreign-terrorist-entry-united-states/

    In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

https://www.youtube.com/watch?v=NeT6aJ4MH2E&t=8m30s

    This isn't only a matter of terrorism, but also a matter of quality of life. We want to make sure that we're only admitting those into our country who support our values and love--and I mean love--our people. ...Pew polling shows that in many of the countries from which we draw large numbers of immigrants extreme views about religion are commonplace. For instance, according to Pew a majority in Afghanistan and Pakistan say honor killings of women are often or sometimes justified. A majority in these countries also support the death penalty for those who leave the faith. We've admitted tens of thousands from these countries in the last few years with no effective screening plan in place. We have no--we have no idea who we're letting in. We have no idea. You see what's happening. In fact Hillary Clinton as Secretary of State admitted multiple refugees who were lated charged with terrorism related activities ..Hillary Clinton won't even say the words "radical Islamic terrorism."

https://assets.donaldjtrump.com/DJT_Radical_Islam_Speech.pdf

    In addition to screening out allmembers or sympathizers of terrorist groups, we must also screen out any who have hostile attitudes towards our country or its principles–or who believe that Sharia law should supplant American law. Those who do not believe in our Constitution,or whosupport bigotry and hatred, will not be admitted for immigration into the country.Only those who we expect to flourish in our country –and toembrace a tolerant American society–should be issuedimmigrationvisas.To put these new procedures in place, we will have to temporarily suspend immigration from some of the most dangerous and volatile regions of the worldthat have a history of exporting terrorism.As soon as I take office, I will ask the State Department and the Department of Homeland Security to identify a list of regions where adequate screening cannot take place. We will stop processing visas from those areas until such time as it is deemed safe to resume based on new circumstances or new procedures.

And he also put a section on prioritizing refugees who are religious minorities in the EO, which doesn't look right in an EO that applies to Muslim-majority countries and says it is about keeping people with "hostile attitudes" out of the U.S. While large protests were going on for the ban being a Muslim ban, Trump also said he planned on prioritizing Christian refugees shortly after the ban was signed. All of these points would end up getting cited in court documents.


You can trace what the administration did to the court cases against the ban (about 50 over the weekend). Their policy of applying the EO to green card holders made cases involving stranded residents possible in the first place, notably Doe v. Trump. The State department revoking visas for people affected by the ban before the CBP could decide who to grant waivers to made cases like Mohammad v. United States and Ali v. Trump possible (Mohammad v. United States got a TRO on the ban a few hours after it was filed). The administrations conflicting statements on how green card holders would be affected made Tawfeeq v. DHS possible, and was cited as a major factor in Washington State v. Trump, which put a TRO on the ban nationwide.

The chaos and confusion of the rollout contributed to this: if the DHS had more time to prepare and were able to get better answers while the EO was in effect, they would have been able to set up better guidance for airlines, avoiding green card holders getting stranded. If travel agencies knew how the ban applied to green card holders, they might have sold the Doe in Doe v. Trump a ticket. If U.S. embassies knew who to grant waivers to, they might have given one to Eman in Ali v. Trump. The confusion meant the goverment's own lawyers couldn't get answers to questions on what the government was actually doing:

https://www.clearinghouse.net/chDocs/public/IM-MA-0007-0004.pdf

    MR. FARQUHAR: Your Honor, at this point I think what needs to take place is some type of a concerted effort by the United States to address the situation.

    ...I'm attempting -- or at least I was attempting until my phone died -- to reach some folks out of MAIN Justice to ascertain how we may be able to coordinate this through Washington, DC.

    Right now, again, I'm unaware of specifically any petitioners or any plaintiffs that could be filing suit based on the fact that they attempted to board a plane overseas, and they were told they have to go home.

    It is my understanding that -- from, again, my brother and my sisters at opposing counsel table -- that this has happened.

    But I'm not in a position right now to address that.

    MS. CHURCH: ...Your Honor, we do know of at least one junior at MIT who's been in contact with us who attempted to board a plane, I believe in London -- I've talked to a lot of people today, so I'm not totally positive about the location -- who was denied.

    ...A representative of the Attorney General's Office has told us that there are families currently in Egypt who all are lawful permanent residents who are all -- local Boston residents who were all sent back and not allowed to board a plane.

    ...We don't know the exact details, but we've been told that the airlines are not allowing it based on the executive order.

    And those are my two examples. I'm tracking through national immigration lawyers thousands of examples. I mean, it's happening all over the world.

    ...JUDGE BURROUGHS: Mr. Farquhar, I take your point about there being some advantages to this being dealt with on a more national basis but your phone died. If you had a phone, would some additional time tonight make a difference, or are you going to stand on the mootness argument? What's your 'druthers for tonight?

    MR. FARQUHAR: Well, Your Honor, as we speak, my phone is being charged, so that's the good news.

    ...At this point, Your Honor, unfortunately given the fact that is is the weekend, it has been a little more difficult to get in touch with folks in DC that are high enough to, in fact, execute some type of an order for the rest of the country to react. And so we're moving as quickly as we can, but right now I can't state what the United States is going to do.

And this too contributed to the administration losing Louhghalam v. Trump, which put a TRO on the whole ban for Boston.

The chaotic rollout did two important things: it made it easier for the government to make mistakes that led to travelers being injured (in the legal sense) and having standing to litigate. It also fast-tracked the whole legal battle--the first court cases were brought in a matter of hours. This meant Yates had to make a decision on the ban soon:

http://www.cnn.com/TRANSCRIPTS/1705/19/acd.03.html

    COOPER: Had you already seen what was happening at airports?

    YATES: Sure. Yes, on TV. I have seen what is happening.

    COOPER: You have seen people coming in, people demonstrating, you saw the impact that was having. Did that have an impact on you?

    YATES: It had an impact in terms of the chaos that was created. But I was trying to get a handle on what did this executive order do and was it lawful and constitutional. By Monday, I was advised that we are going to have to take a position on the constitutionality statue. The facts reflected that this really was an attempt to make good on President's campaign promise of a Muslim ban. That is was about religion and that if the department of justice on something as essential as religious freedom, I couldn't in good conscience send our DOJ lawyers in to make an argument that wasn't grounded in truth.

But this begs the question: why did the administration choose to sign the ban without warning and without even telling the people who were supposed to implement it?

Trump has an explanation for at least part of this: he's said repeatedly that the ban had to be signed without public warning, or else "bad people" would rush in to the country:

http://www.latimes.com/politics/la-na-pol-trump-news-conference-transcript-20170216-story.html

    Now, what I wanted to do was do the exact same executive order, but said one thing. I said this to my people. Give them a one-month period of time. But Gen. Kelly, now Sec. Kelly, said if you do that, all these people will come in and (inaudible) the bad ones.

    You do agree there are bad people out there, right? That not everybody that's like you. You have some bad people out there.

    Kelly said you can't do that. And he was right. As soon as he said it I said wow, never thought of it. I said how about one week? He said no good. You got to do it immediately because if you do it immediately they don't have time to come in.

He says he got this idea from General Kelly, which might be true, but is weird since Trump didn't involve Kelly in planning the ban's development or rollout.

But this reasoning is strange, given what Trump did. Trump had already given the public warning the ban was coming: he announced the ban during the campaign, and two days before he signed it, he talked about the ban and the countries affected with David Muir after a draft was leaked to the press (also brought up in the interview: why not include countries like Afghanistan or North Korea? you'd think "bad people" could rush in from there too):

http://abcnews.go.com/Politics/transcript-abc-news-anchor-david-muir-interviews-president/story?id=45047602

    DAVID MUIR: Let me ask you about some of the countries that won't be on the list, Afghanistan, Pakistan, Saudi Arabia. Why are we going to allow people to come into this country ...

    PRESIDENT TRUMP: You're going to see -- you're going to see. We're going to have extreme vetting in all cases. And I mean extreme. And we're not letting people in if we think there's even a little chance of some problem.

    DAVID MUIR: Are you at all ...

    (OVERTALK)

    PRESIDENT TRUMP: We are excluding certain countries. But for other countries we're gonna have extreme vetting. It's going to be very hard to come in.

There were protests and reports of travelers hurrying back to the U.S., but the Trump administration still didn't let the people who would be implementing or defending the ban see it.

If it was so important to not give "bad people" warning that it was worth causing global chaos, why not make sure the ban would survive in courts? By Trump's logic, a single TRO would be enough to give "bad people" an opening to rush into the country, and that had already happened by wee hours of the 29th, amidst the initial chaos of the ban, while the government lawyer was struggling to get answers from the administration. So it looks odd: why is this important enough to not give travelers time to prepare, but not enough to do a thorough legal review?

After the ban got hit with the Washington v. Trump TRO, Trump decided he was ready to prepare for a long legal fight instead of fixing the EO, saying vetting was now "tougher than ever before:"

http://archive.org/details/CSPAN3_20170207_202500_President_Trump_Holds_Listening_Session_with_County_Sheriffs/start/1127/end/1149.3

    Mr. president, how long are you willing to take the travel ban fight?

    TRUMP: We're going to take it through the system. it is very important, very important for current, regardless of me or whoever succeeds at a later date. we have to have security in our country. we have to the ability. when you take someplace like syria, you take all of the different people pouring -- and if you remember, isis said, we are going to infiltrate the united states and other countries through the migration. and then we're not allowed to be tough on the people coming in? play that one. so we'll see what happens. we have a big court case, we're well represented. we're going to see what happens.

    ...It may take a little while. And you know, this is a very dangerous period of time because while everybody is talking and dealing, a lot of bad people are thinking about, hey, let's go in right now. But we're being very, very tough with the vetting -- tougher than ever before....

So this also looks bad: the reason Trump says made it worth it to do a fast rollout somehow wasn't so important anymore.

The immediate rollout was the key reason Yates had to make a decision on defending the ban so soon, and was the reason so many unwinnable court cases popped up in the first few days of the ban. So it's all the more concerning that Trump can't give a good explanation for why he did it.

So that's the anomaly with how Trump fired acting AG Yates: he put out an EO that couldn't be legally defended, acted to make the legal problems worse, then fired her for not defending it. And he can't give a good explanation for why he did it. But there is an explanation that adds up: Trump wanted Yates gone, he wanted her gone fast, and he wanted an alibi. Putting out an executive order the DOJ couldn't defend in a way that legal challenges would happen right away was a way to get that.

There's a lot more weird stuff going on with the travel ban that I could write about. Like why did the administration bungle PR for Aziz v. Trump so badly? And why are they trying to block the DHS OIG from releasing their full report?

...there is one thing very odd with all this that should be investigated:

http://www.cnn.com/TRANSCRIPTS/1705/19/acd.03.html

    ...COOPER: Do you agree there was no legal issue with Flynn's underlying behavior?

    YATES: I don't know how the White House reached the conclusion that there was no legal issue. It certainly wasn't from my discussion with them.

    ...COOPER: If you hadn't been fired, if you are still in your position and you hadn't seen action over the course of that 18 days, was there more your role as the acting attorney general would have permitted you to do?

    YATES: I would have gone back to the White House.

    COOPER: If you were still the acting attorney general, you would have gone back to the White House.

    YATES: I have been knocking on the door then, yes.

    COOPER: Why?

    YATES: Because I would have been concerned that we had a national security advisor who was compromised. I wouldn't be able to control what happened, but I would have gone back to White House.

http://www.judicialwatch.org/wp-content/uploads/2017/12/JW-v-DOJ-Yates-docs-Nov-17-00832.pdf

pg 39

    From: Wilkinson, Monty (USAEO) Sent: Monday, January 30, 2017 3:18 PM To: USAEO-USAttorneysOnly Subject: Message from the Acting Attorney General

    The Acting Attorney General asked that I forward the attacked message to you.

    Monty

    [Message from the Acting Attorn...]

https://www.washingtonpost.com/news/post-nation/wp/2017/01/30/trump-says-all-is-going-well-on-immigration-order-amid-questions-and-confusion/

    “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,” Yates wrote. She wrote that “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.”

    Yates’s view is perhaps unsurprising; she was second-in-command at the Justice Department under President Obama, held over until a new attorney general can be confirmed. Still, her announcement is remarkable for its defiance.

http://documents.latimes.com/message-acting-attorney-general/

    Document Message from Sally Yates to Justice Department lawyers before she was fired

    ...[OLC]'s review does not take account of statements made by an administration or its surrogates close in time to the issuance of an Executive Order that may bear on the order's purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just.

https://www.washingtonpost.com/news/post-politics/wp/2017/05/08/full-transcript-sally-yates-and-james-clapper-testify-on-russian-election-interference/

    ...YATES: But my concern was not an INA concern here. It, rather, was a constitutional concern, whether or not this -- the executive order here violated the Constitution, specifically with the establishment clause and equal protection and due process.

    ...KLOBUCHAR: And then moving forward here, as was mentioned by Senator Durbin, this order was (inaudible) after a lawsuit from the State of Washington and Minnesota, the court basically challenged -- the constitutionality of the order. The order is now taken effect, but what I want to get to right now is the fact that the administration then withdrew its request for an appeal of the court ruling blocking implementation of the same order and then they changed the order that you would not implement.

    YATES: Right. And there were a number of important distinctions between travel ban one and travel ban two. At the time I had to make my decision for example, the executive order still applied to green card holders, lawful permanent residents and those who had visas.

http://www.promotionoftourism.org/?p=430

    First lawsuit in Chicago challenges Trump travel ban

    Posted January 30, 2017 by admin

    A Chicago man who traveled to his native Iran to care for his ailing mother is asking a federal judge to declare President Donald Trump’s executive order on immigration unconstitutional.

    ...The plaintiff is an Iranian citizen and legal permanent resident of the U.S. who lives in Chicago with his wife and three children, according to the lawsuit. Earlier this month, he traveled to Iran to care for his ailing mother, who was alone there after his father died, the suit said.

    The man was planning to return to Chicago in early February in time for the birth of his first grandchild, according to the suit. But when he tried to purchase a ticket for his return flight on Saturday, the ticketing agency “refused to issue a ticket for his travel to the United States due to the executive order,” the suit said.

https://www.scribd.com/document/338047748/Doe-v-Trump

    Filed: 01/30/17

https://lawandcrime.com/uncategorized/la-judge-issues-most-sweeping-order-yet-against-trump-immigration-ban/

    LA Judge Issues Most Sweeping Order Yet Against Trump Immigration Ban

    ...In the Los Angeles lawsuit, the Yemeni families argued Trump’s order violates their right to due process, unlawfully targets Muslims based on their religion in violation of the First Amendment, among other constitutional arguments.

    The plaintiffs had left war-torn Yemen and obtained their U.S. immigration visas in the nearby country of Djibouti, Africa, after completing the U.S.’s vetting process and before Trump issued his executive order, but were blocked from leaving Africa.

https://www.courthousenews.com/wp-content/uploads/2017/02/VISA-in-embassy-lawsuit.pdf

    ...Defendants

    ...DANA J. BOENTE, in her official capacity as Acting Attorney General of the United States

    Dated: January 30, 2017

https://www.washingtonpost.com/news/post-politics/wp/2017/05/08/full-transcript-sally-yates-and-james-clapper-testify-on-russian-election-interference/

    YATES: Two meetings and then a phone call at the end to let him know...

    WHITEHOUSE: That the material was available if he wanted to see it.

    YATES: ... that the material was available. He had to call me back. He was not available then and I did not hear back from him until that afternoon of Monday the 30th.

    WHITEHOUSE: And that was the end of this episode, nobody came over to look at the material?

    YATES: I don't know what happened after that because that was my last day with DOJ.

https://www.washingtonpost.com/news/the-fix/wp/2017/01/31/sally-yates-is-now-a-martyr-for-the-anti-trump-movement-but-legally-speaking-its-more-complicated/

    The Yates firing is certainly a splashy story — stirring up all kinds of righteous indignation on the American left. But questions have arisen about just how appropriate her defiance was...

Assuming Yates wrote her letter directing DOJ to not defend the ban, a lot doesn't make sense. Yates said she didn't want to be fired (she'd be "knocking on the door" of the White House about Flynn being compromised), and she had every reason not to: not only was Trump dragging his feet on Flynn, Yates was just about to go over the evidence of Flynn's calls with McGahn.

Yates knew that the ban had problems with due process and equal protection, and these were the most indisputable problems with the EO (and this was cited as the main reason the ban wasn't reinstated: https://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf ), but this wasn't mentioned in the letter instructing DOJ not to defend the ban--instead the letter only alluded to the ban's intent to be a Muslim ban. Yates would have had a long, eye-popping list of why the ban couldn't be defended, but none of that was in the letter. And this makes a big difference: Trump saying he fired Yates for "insubordination" is one thing, but if he had to argue against firing her for not defending an undefendable EO he would have had much bigger problems on his hands.

And if the letter had come a few hours later, Mohammad v. United States and Doe v. Trump, two serious cases on due process and equal protection violations (Mohammad got a TRO in a few hours) would have been filed publicly before her decision, which would have made it even harder for Trump to justify firing her. The DOJ had already been defending the ban in court, and McGahn was supposedly just about to take a look at the evidence. Even if the ban was undefendable, it wouldn't have hurt to wait a little longer to make her decision.

But someone other than Yates forwarded the letter to a mailing list at DOJ at 3:18 PM on Jan 30th, and Yates got fired for it a few hours later, with some pointing it was notable for its "defiance". Based on this, it seems reasonable to wonder if Yates wrote her letter at all. Given the circumstances, this would be a very important question to answer.