Senate panel's vote on Sessions delayed after contentious committee hearing

Kevin Johnson | USA TODAY

Show Caption Hide Caption Trump fires acting AG after defiance on immigration order Acting Attorney General Sally Yates sent a letter to the Department of Justice, ordering it not to defend President Trump's executive order that suspends the U.S. refugee program for 120 days.

WASHINGTON — A politically divided Senate Judiciary Committee clashed Tuesday over the nomination of Alabama Sen. Jeff Sessions’ nomination as attorney general, even as President Trump’s abrupt dismissal of Acting Attorney General Sally Yates shadowed the heated debate over whether the nominee could distance himself from the president he worked to elect.

The debate, a prelude to an expected committee vote on the nomination that was put off to Wednesday, came less than 24 hours after the president dismissed Yates when she refused to defend his controversial refugee ban in federal court.

In raised voices Democratic panel members called on their colleagues to reject Sessions, casting serious doubt on the senator’s independence from the White House and the president who is now in the midst of defending the new administration’s hard-line immigration policy measures which Sessions helped to shape as an early supporter--and first member of the Senate--to endorse Trump.

“What we saw last night is an example of what is at stake with this nomination,’’ Sen. Patrick Leahy, D-Vt., said, referring to Yates’ firing. “There is something looming over this nomination.’’

Leahy’s fierce criticism of a longtime Senate colleague followed California Sen. Dianne Feinstein’s repudiation of Sessions', suggesting that the nominee was “an arm of the White House’’ and would carry out the president's ''destructive’’ policy agenda.

The panel’s ranking Democrat seized on Yates' firing, saying that the acting attorney general demonstrated the "guts'' necessary for the job by refusing to defend Trump's order.

"Yesterday, we clearly saw what a truly independent attorney general does,'' Feinstein said. "Sally Yates... declared that under her leadership the department could not defend Trump’s executive order on immigrants and refugees.

"That statement said what an independent attorney general should do,'' she said. "That statement took a steel spine to stand up and say no. I have no confidence that Sen. Sessions will do that.''

Sessions had no role in order

Republicans, meanwhile, rallied to support the nominee, dismissing allegations that the longtime Alabama senator had helped author the president’s executive order which suspends immigration from seven majority-Muslim countries.

“Some on the other side have raised concerns about whether Sen. Sessions was involved in drafting or reviewing the executive orders,'' Grassley said. "It’s not clear to me why it would be a problem even if he had been involved. But the fact of the matter is he wasn’t.''

Politico reported Monday that the order was drafted by staff members of the House Judiciary Committee, who did not tell their superiors that they had worked on the order.

Grassley said Sessions had “assured us that he will enforce the laws fully, fairly, and independently.’’

"These answers, combined with his life of public service and his experience working with each of us, assure me that Sen. Sessions will make an outstanding attorney general.''

Late Tuesday, the White House also announced the nomination of current Maryland U.S. Attorney Rod Rosenstein, a career Justice official, as deputy attorney general.

Sen. John Cornyn R-Texas, characterized the Democratic opposition to Sessions as a collection of “alternative facts,’’ borrowing a term White House counselor Kellyanne Conway used to describe the administration's dispute about the size of the crowd on Inauguration Day.

Cornyn said the opposition was likely rooted in a political party’s “denial and anger’’ at having lost the general election.

“We know his heart,’’ the Texas senator said, referring to the nominee. “We know him to be a good and decent man.’’

Pledging his vote, Cornyn called Sessions a “antidote to the politicization of the (Justice) department under (former attorneys general) Eric Holder and Loretta Lynch.’’

While Sessions was the subject of the panel's deliberations, Yates' sudden dismissal loomed large in much of the discussions.

Some lawmakers cited Sessions' own questioning of Yates during her 2015 confirmation hearing for deputy attorney general in which the nominee--while a member of the same Judiciary panel--pressed her on her commitment to remain independent of the White House, regardless of the level of influence.

"Do you think the attorney general has the responsibility to say no to the President if he asks for something improper?'' Sessions asked.

"Senator, I believe the attorney general and deputy attorney general have the obligation to follow the law and the constitution,'' Yates said.

In statement issued after Yates' 2015 confirmation, Grassley specifically cited Yates' pledge of independence, saying: "As she told us during her hearing, she is aware that her client is the people of the United States. Not the president. Not the Congress, it’s the people of the United States.''

Yet, Sen. Ted Cruz, R-Texas, said Trump was right to fire Yates because of her refusal to her job. Cruz said Yates' action was "consistent with eight years of a lawless Department of Justice'' under the Obama administration.

Yates "not convinced"

The ouster of Yates, an Obama administration appointee who was directing the department during the Trump transition, came after she notified Justice lawyers that she was “not convinced” that Trump’s executive order suspending immigration from seven majority Muslim countries was lawful.

"Ms. Yates is an Obama administration appointee who is weak on borders and very weak on illegal immigration," said a statement from the White House that appeared to be in Trump's own voice. It was Trump, however, who allowed Yates to serve as acting attorney general.

Trump appointed Dana Boente, the U.S. attorney for the Eastern District of Virginia, to serve as acting attorney general until Sessions can be confirmed.

Boente was immediately sworn in at 9 p.m. Monday, and overnight he quickly moved to rescind Yates’ notice to Justice lawyers.

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“I will defend and enforce the laws of our country to ensure that our people and our nation are protected,” Boente said in a statement issued through the White House.

Boente was at the Justice Department Tuesday, working out of the office suite that Yates had occupied hours before. A Justice official said that Yates cleared her office after her dismissal and left the department about 11 p.m.

The stunning series of events that rolled late into Monday evening drew immediate comparisons to the so-called Saturday Night Massacre of Oct. 20, 1973, when then Attorney General Elliot Richardson and his deputy, William Ruckelshaus, chose to resign rather than obey President Nixon’s order to fire Watergate special prosecutor Archibald Cox.

“I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right,” said Yates in a letter to Justice Department attorneys. “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.

“Consequently, 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," wrote Yates.

The action by the career Justice attorney, who led the successful prosecution of Atlanta Olympic Park bomber Eric Rudolph, was lauded by former attorneys general Holder and Lynch.

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The executive order contains an exception for religious minorities from the banned countries, which are Iraq, Iran, Syria. Yemen, Sudan, Somalia and Libya. Trump told the Christian Broadcasting Network in an interview that aired Sunday that the intent was to protect Christian refugees.

Yates’ firing extended a chaotic weekend where lawyers flooded courtrooms around the country to try and halt the deportation of people who had arrived after Trump signed his executive order. A federal judge in New York issued an emergency, nationwide stay late Saturday barring the federal government from any more deportations.

Immigration advocacy groups have started filing broader lawsuits challenging the overall legality of Trump’s order.

A group of Michigan immigrants filed a suit in federal court in Virginia on Monday challenging the order on religious grounds. That suit claims Trump’s order discriminates against Muslims and violates constitutional protections for the free exercise of religion.

A separate lawsuit filed in federal court in Seattle on Monday claims that Trump’s order violates a federal law that prohibits discrimination against immigrants based on their country of origin. That lawsuit was filed on behalf of U.S.-based parents trying to reunite with their children in Somalia, Syria and Yemen.

Matt Adams, legal director of the Northwest Immigrant Rights Project and one of the attorneys in the suit, acknowledged that a president had broad powers to oversee the nation’s immigration system. Federal law allows a president to bar entry to any immigrant, or entire classes of immigrants, if the president deems them “detrimental to the interests of the United States.”

But the lawsuit claims that Trump overstepped his legal authority by temporarily suspending all immigration from seven entire countries. It points to the Immigration and Nationality Act of 1965, which forbids discrimination based on a person’s nationality or country of origin.

“While the president has certain powers, he doesn’t have power to defy this clause,” Adams said.

Democrats in Congress have offered legislation to overturn Trump's order, but they have not gathered any Republican support.

Contributing: Gregory Korte and Alan Gomez

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