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.
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