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Sally Yates on Trump’s travel ban and protecting the rule of law

Sally Yates took a stand in refusing to defend President Trump's first travel ban. Could she defend the one now being argued at the Supreme Court? The former acting attorney general joins Judy Woodruff to offer her take on the case, her work to promote the importance of an independent judiciary in light of President Trump’s comments and the Robert Mueller investigation into Russian interference.

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  • Judy Woodruff:

    And we are joined now by Sally Yates, who worked at the Justice Department for more than two decades. From 20 — and from 2015 to early 2017, she served as the deputy attorney. And then, for 10 days last January, Yates served as acting attorney general, until the Trump administration fired her over her refusal to defend the president's first travel ban.

    Sally Yates, welcome to the "NewsHour."

  • Sally Yates:

    Thank you for having me.

  • Judy Woodruff:

    So, you made a stand. It was over a year ago. You said you were not going to defend the first travel ban. We're now at the third version of that travel ban. The justices are taking a look at it. Could you defend this one?

  • Sally Yates:

    Well, they have made some important changes to this travel ban.

    Back at — I think the president has described this travel ban as a watered-down version of the first one. And, for example, in the first travel ban, it applied to people who were lawful permanent residents and had valid visas. And I don't think anyone would seriously contend today that that's constitutional.

    There were no waivers for individuals, as they discussed at great length today. There was no national security process. They jumped through a lot of those hoops now and made a number of important changes.

    But I think you still have to ask yourself, is this travel ban infected by the same animus that infected the first one? And that is the intent to discriminate on the basis of religion, the president's intent to effectuate a Muslim ban as best he could.

  • Judy Woodruff:

    And if you were the justices, how would you come down?

  • Sally Yates:

    Well, you know, I'm a careful lawyer. I haven't studied this one in the same way that I have the first one, but I'm really concerned about that.

    And I would have to be convinced that somehow there is a different intent here, that it's not something just dressed up better. And, so far, I'm not convinced. But I haven't studied this in the same way I did the first ban.

  • Judy Woodruff:

    Well, we invited you here because you have been spending a lot of time, your time, recently looking at the importance of the independence of the judiciary.

    You're sponsoring a conference on that subject tomorrow. And I want to ask you about that. And I also wanted to ask you about some news that we have just learned about. And that is that the president's attorney, Michael Cohen, has — his lawyer has informed a court in California that Cohen will assert his Fifth Amendment right not to incriminate himself in any matter involving Stormy Daniels, Stephanie Clifford, the woman who alleges she had an affair with President Trump.

    Hearing that, what does it tell you, if anything, about the course of that — of those cases?

  • Sally Yates:

    Well, it's a course reversal of sorts, in that, from news accounts, he has been saying that there was nothing inappropriate with respect to that.

    And to assert the Fifth Amendment, you have to have a good-faith basis to believe that the truthful answers to those questions would incriminate you in a crime.

    So, that's what he's saying by saying he would take the Fifth.

  • Judy Woodruff:

    So, it says something to you about whether he knows something or not?

  • Sally Yates:

    Well, it certainly is an indication of that, yes.

  • Judy Woodruff:

    So, let's talk a little bit more about that.

    And, again, I want to give you a chance first to speak broadly about the importance of an independent judiciary, as you put it. Why is that important to you?

  • Sally Yates:

    Well, you know, there are a lot of important policy issues confronting our country right now.

    But, from my perspective, the most important issue isn't any one of those. You know, people of good will can have different views about the best policies.

    It's really the assault on our democratic institutions and norms. And that includes an independent judiciary and the rule of law and a free press, among others.

  • Judy Woodruff:

    And you have said that some of that, of course, your concern comes out of — grows out of this administration, the president's repeated concerns that he's expressed about the Robert Mueller investigation, the investigation into whether there was a connection with Russia during the election.

  • Sally Yates:

    Yes.

  • Judy Woodruff:

    What is it about what the president said that most concerns you?

  • Sally Yates:

    Well, it's what he's been saying almost since day one here.

    For the rule of law to actually have any meaning in our country, we have to ensure that there is a division between the Department of Justice and the White House.

    And, really, in going back administrations, Republican and Democratic alike, at least since Watergate, there's been essentially a wall between DOJ and the White House on criminal investigations and prosecutions, not broad policies, but on those, both to ensure that those decisions aren't politicized and to ensure that the public has confidence that they're not politicized.

    Here, from the very first day, the president has done everything from repeatedly calling for the jailing of his former political rival, reaching in to the department to try to squelch investigations of Mike Flynn or Sheriff Arpaio, even as recently as last week tweeting that — essentially, that the citizens of this country shouldn't have any confidence in people who are cooperating with the government, because they will just make something up to essentially save their skins.

    That's a remarkable thing for the president to say about his own Justice Department.

  • Judy Woodruff:

    He has — and you have also spoken about his criticism of Rod Rosenstein, the deputy attorney general, who, of course, appointed Bob Mueller. There have been some suggestions the president might fire him.

    And yet it hasn't happened yet. The White House keeps saying, no, it hasn't happened, the president has no intention.

    Should that set people's mind at ease that the White House is saying it's not something the president plans to do?

  • Sally Yates:

    Well, it seems like we repeatedly get right up to the precipice of the president firing somebody at DOJ, whether it's the attorney general, or trying to shame him into resigning, or Rod Rosenstein, or the special counsel, Mueller.

    From news reports anyway, last week, he backed off of it once he had been assured that he wasn't the target of the Cohen investigation. You know, that ought to worry us even more that his decisions here are situational, based on whether he feels like he's in the sights of the Justice Department.

    That's not how the rule of law is supposed to work.

  • Judy Woodruff:

    One of the arguments the White House has made, Sally Yates, is that, in fact, there are a number of people who voted Democratic, who are favorable to Democrats who are working with Robert Mueller.

    One of them, Andrew Weissmann, one of the top prosecutors — this has been reported — he sent you an e-mail after you were — made the statement that you wouldn't defend the first travel ban. He was complimentary of you. He said: "I'm so proud. I'm in awe."

    I guess the president's argument is, well, if there are people who are already disposed not to like me and to agree with the other side, then how can I expect them to treat me fairly?

  • Sally Yates:

    Well, you know, I think that Mr. Weissmann's e-mail was saying that he was gratified that the department was acting in a way that he believed was consistent with the law and the Constitution.

    That's how we should want prosecutors to think.

  • Judy Woodruff:

    And let me — let's talk about the Department of Justice, the people — you are still in touch with people at the Department of Justice.

    How are they working through this? And what do you think there reaction would be if we see some attempt to disrupt this investigation?

  • Sally Yates:

    You know, this has been a really hard time for the folks at DOJ, and that's been one of the things that's concerned me the most.

    You know, these are hardworking, diligent people who are trying to call it like they see it, based on the facts and the law and nothing else.

    And, remarkably, they have a president lobbing assaults at his own Department of Justice on an almost weekly basis, on putting justice in quotes when he — in one recent tweet, and calling them shameful and an embarrassment, and the FBI is in tatters.

    You know, that's really hard, when that's coming from the president of the United States. But I also have confidence that those folks are so committed to doing the right thing there that they're going to keep their nose — you know, their head down and just try to do their jobs.

    But it certainly does have an impact on public confidence in the Justice Department and our criminal justice system. And that's a crime, in and of itself.

  • Judy Woodruff:

    Final question, quickly, about James Comey.

    We know this is part of the Mueller investigation. At least, we believe it is. He wrote in his book — and we're going to be talking to him next week — among other things, that he let you know that he was going to make an announcement toward the end of the 2016 presidential election that the investigation into Hillary Clinton's e-mails had been reopened, that you let him know you disagreed with that decision, but that you didn't tell him not to or urged him not to.

    Do you think, in retrospect, you should have done something different?

  • Sally Yates:

    Well, that's a matter that right now is under investigation by the Department of Justice inspector general.

    He's looking at Director Comey's actions in that regard. And while there's a pending investigation, I'm not going to comment on that.

  • Judy Woodruff:

    All right, we will leave it there.

    Sally Yates, former acting attorney, thank you very much.

  • Sally Yates:

    Thanks for having me.

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