Former acting Attorney General Sally Yates and Republican Sen. Ted Cruz of Texas got into a heated exchange Monday over President Donald Trump's stalled executive order barring travel from several majority-Muslim countries.
Yates was removed as acting attorney general in late January after she publicly refused to defend the initial version of the executive order, which has since been revoked and replaced with a slightly scaled-back proposal that is also tied up in the courts.
Sally Yates, former acting U.S. attorney general, swears in to a Senate Judiciary Subcommittee on Crime and Terrorism hearing in Washington, D.C., U.S., on Monday, May 8, 2017. Yates said she warned the White House's top lawyer in late January that then-National Security Adviser Michael Flynn had misled Vice President Mike Pence and others about contacts with Russian officials and was potentially subject to blackmail by them. Photographer: Andrew Harrer/Bloomberg via Getty Images
Sen. Lindsey Graham (R-SC) greets former Acting Attorney General Sally Yates after she testified about potential Russian interference in the presidential election before the Senate Judiciary Committee on Capitol Hill Washington, D.C., U.S. May 8, 2017. REUTERS/Aaron P. Bernstein
U.S. Deputy Attorney General Sally Quillian Yates testifies during a Senate Judiciary Committee hearing on "Going Dark: Encryption, Technology, and the Balance Between Public Safety and Privacy" in Washington July 8, 2015.
U.S. President Barack Obama attends a meeting with FBI Director James Comey (C), Deputy Attorney General Sally Yates (R) along with DHS Secretary Charles Johnson (not pictured) and NCTC Director Nicholas Rasmussen (not pictured) at the Oval Office of the White House in Washington, U.S., June 13, 2016.
Deputy Attorney General Sally Q. Yates speaks during a press conference at the Department of Justice on June 28, 2016 in Washington, DC. Volkswagen has agreed to nearly $15 billion in a settlement over emissions cheating on its diesel vehicles.
(Photo by Pete Marovich/Getty Images)
U.S. Deputy Attorney General Sally Quillian Yates (L) and FBI Director James Comey are sworn in to testify at a Senate Judiciary Committee hearing on "Going Dark: Encryption, Technology, and the Balance Between Public Safety and Privacy" in Washington July 8, 2015.
Former Deputy Attorney General Sally Yates arrives to testify before a Senate Judiciary Committee hearing on ?Russian interference in the 2016 U.S. election? on Capitol Hill in Washington, U .S., May 8, 2017. REUTERS/Jim Bourg
Former acting Attorney General Sally Yates (2nd R) and former Director of National Intelligence James Clapper (L) prepare to testify on May 8, 2017, before the US Senate Judiciary Committee on Capitol Hill in Washington, DC. / AFP PHOTO / JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)
Deputy Attorney General Sally Q. Yates (L) speaks alongside FBI Director James Comey (2L) and Chuck Rosenberg (C), acting administrator of the Drug Enforcement Administration (DEA) as they attend a new Implicit Bias Training program at the Department of Justice in Washington, DC, June 28, 2016.
(SAUL LOEB/AFP/Getty Images)
Deputy Attorney General Sally Quillian Yates during a Senate Judiciary Committee hearing on Going Dark and data encryption in Washington, USA on JULY 8, 2015.
(Photo by Samuel Corum/Anadolu Agency/Getty Images)
Flanked by Environmental Protection Agency Administrator Gina McCarthy and Federal Trade Commission Chairwoman Edith Ramirez , Deputy Attorney General Sally Q. Yates speaks during a press conference at the Department of Justice on June 28, 2016 in Washington, DC. Volkswagen has agreed to nearly $15 billion in a settlement over emissions cheating on its diesel vehicles.
(Photo by Pete Marovich/Getty Images)
U.S. Attorney General Loretta Lynch (2nd L) delivers closing remarks to the Justice Department Summit on Violence Crime Reduction with Deputy Attorney General Sally Quillian Yates (3rd L) and other Justice Department officials at the Washington Plaza Hotel October 7, 2015 in Washington, DC. Lynch invited mayors and police chiefs from 20 cities and other federal officials to the conference to discuss the root causes of crime and strategies for reducing it.
(Photo by Chip Somodevilla/Getty Images)
Deputy Attorney General Sally Yates, in her office at the Justice Department, May 15, 2015, in Washington, DC. Yates, who was confirmed by the Senate yesterday, is a former career prosecutor from Atlanta.
(Photo by Evelyn Hockstein/For The Washington Post via Getty Images)
WASHINGTON, DC - MAY 08: Former acting U.S. Attorney General Sally Yates (R) and Former Director of National Intelligence James Clapper testify before the Senate Judicary Committee's Subcommittee on Crime and Terrorism in the Hart Senate Office Building on Capitol Hill May 8, 2017 in Washington, DC. Before being fired by U.S. President Donald Trump, Yates had warned the White House about contacts between former National Security Advisor Michael Flynn and Russia that might make him vulnerable to blackmail. (Photo by Chip Somodevilla/Getty Images)
Former Deputy Attorney General Sally Yates is sworn in prior to testifying before a Senate Judiciary Committee hearing on ?Russian interference in the 2016 U.S. election? on Capitol Hill in Washington, U .S., May 8, 2017. REUTERS/Jim Bourg TPX IMAGES OF THE DAY
Former Acting Attorney General Sally Yates and former Director of National Intelligence James Clapper are sworn in before the Senate Judiciary Committee on Capitol Hill, Washington, D.C., U.S. May 8, 2017. REUTERS/Aaron P. Bernstein
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Cruz began an exchange during a Senate Judiciary subcommittee hearing by citing a section of the Immigration and Nationality Act, which provides the president with broad power to suspend the entry of foreigners he believes would be detrimental "to the interest of the" US.
"Would you agree that that is broad statutory authorization?" Cruz asked.
"I would, and I am familiar with that," Yates responded. "And I'm also familiar with an additional provision ... that says no person shall receive preference or be discriminated against in issuance of a visa because of race, nationality, and place of birth. That I believe was promulgated after the statute that you just quoted. And that's been part of the discussion with the courts ... whether this more specific statute trumps the first one that you described."
She said her original concern was not whether the executive order fit within the act, but whether it was constitutional.
Cruz fired back, saying her points would be the "arguments that we can expect litigants to bring — partisan litigants who disagree with the policy decision of the president."
He then cited a Department of Justice issuance from the Office of Legal Counsel that approved the order "with respect to form and legality."
"That is a determination from OLC on January 27 that it was legal," Cruz said. "Three days later, you determined, using your own words, that 'although OLC had opined on legality, it had not addressed whether it was wise or just.'"
Yates added that she said in the same directive that she was not convinced the executive order "was lawful."
"I also made the point that the office of OLC looks purely at the face of the document and again makes a determination as to whether there is some set of circumstances under which some portion of that EO would be enforceable, would be lawful," she said. "They importantly do not look outside the face of the document. And in this particular instance, particularly where we were talking about a fundamental issue of religious freedom, not the interpretation of some arcane statue, but religious freedom, it was important for us to look at the intent behind the president's actions."
"And the intent is laid out in his statements," she said.
Cruz then added a final question, asking Yates if she was aware of any similar situation in the DOJ's history in which an attorney general ordered the department not to follow a policy that had been approved by the OLC.
"I'm not," she said. "But I'm also not aware of a situation where the OLC was advised not to tell the AG about it until after it was over."