Firing Sally Yates Was Not A “Monday Night Massacre”
The Acting Attorney General was fired last night after announcing that she would refuse to defend President Trump's Executive Order on immigration. As a result she was fired. Contrary to some arguments, this was not improper.
Proving yet again that there is little time off in following politics in the Trump Era, drama unfolded over several hours last night that ended with the naming of a new Acting Attorney General. It started when Sally Yates, the Acting Attorney General who has been serving in a traditional caretaker role until Attorney General Designee Jeff Sessions is confirmed by the Senate, announced that she could not and would not defend the Trump Administration’s Executive Order on immigration from certain majority Muslim countries in Court against the many challenges that had been filed against it. Within hours, Yates had been fired and replaced as Acting Attorney General by the U.S, Attorney for the Eastern District of Virginia:
WASHINGTON — President Trump fired his acting attorney general on Monday night, removing her as the nation’s top law enforcement officer after she defiantly refused to defend his executive order closing the nation’s borders to refugees and people from predominantly Muslim countries.
In an escalating crisis for his 10-day-old administration, the president declared in a statement that Sally Q. Yates, who had served as deputy attorney general under President Barack Obama, had betrayed the administration by announcing that Justice Department lawyers would not defend Mr. Trump’s order against legal challenges.
The president replaced Ms. Yates with Dana J. Boente, the United States attorney for the Eastern District of Virginia, saying that he would serve as attorney general until Congress acts to confirm Senator Jeff Sessions of Alabama. In his first act in his new role, Mr. Boente announced that he was rescinding Ms. Yates’s order.
Monday’s events have transformed the confirmation of Mr. Sessions into a referendum on Mr. Trump’s immigration order. Action in the Senate could come as early as Tuesday.
Ms. Yates’s order was a remarkable rebuke by a government official to a sitting president, and it recalled the so-called Saturday Night Massacre in 1973, when President Richard M. Nixon fired his attorney general and deputy attorney general for refusing to dismiss the special prosecutor in the Watergate case.
Mr. Boente was sworn in at 9 p.m., according to White House officials, who did not provide details about who performed the ceremony. In a statement, Mr. Boente pledged to “defend and enforce the laws of our country.”
At 9:15 p.m., Ms. Yates received a hand-delivered letter at the Justice Department that informed her that she was fired. Signed by John DeStefano, one of Mr. Trump’s White House aides, the letter informed Ms. Yates that “the president has removed you from the office of Deputy Attorney General of the United States.”
Two minutes later, the White House officials lashed out at Ms. Yates in a statement issued by Sean Spicer, the White House press secretary.
“Ms. Yates is an Obama administration appointee who is weak on borders and very weak on illegal immigration,” the statement said.
The firing of Ms. Yates came at the end of a turbulent three days that began on Friday with Mr. Trump’s signing of his executive order. The action stranded travelers around the world, led to protests around the country and created alarm inside the bureaucracy.
Ms. Yates, like other senior government officials, was caught by surprise by the executive order and agonized over the weekend about how to respond, two Justice Department officials involved in the weekend deliberations said. Ms. Yates considered resigning but she told colleagues she did not want to leave it to her successor to face the same dilemma.
By Monday afternoon, Ms. Yates added to a deepening sense of anxiety in the nation’s capital by publicly confronting the president with a stinging challenge to his authority, laying bare a deep divide at the Justice Department, within the diplomatic corps and elsewhere in the government over the wisdom of his order.
“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,” Ms. Yates wrote in a letter to Justice Department lawyers.
Mr. Trump’s senior aides huddled together in the West Wing to determine what to do.
They decided quickly that her insubordination could not stand, according to an administration official familiar with the deliberations. Among the chief concerns was whether Mr. Sessions could be confirmed quickly by the Senate.
After Reince Priebus, the White House chief of staff, received reassurances from Senator Mitch McConnell of Kentucky, the Republican leader, that the confirmation was on track, aides took their recommendation to Mr. Trump in the White House residence.
The president decided quickly: She has to go, he told them.
The official statement from Mr. Spicer accused Ms. Yates of failing to fulfill her duty to defend a “legal order designed to protect the citizens of the United States” that had been approved by the Justice Department’s Office of Legal Counsel.
“It is time to get serious about protecting our country,” Mr. Spicer said in the statement. He accused Democrats of holding up the confirmation of Mr. Sessions for political reasons. “Calling for tougher vetting for individuals traveling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country.”
Former Justice Department officials said the president’s action would send a deep shudder through an agency that was already on edge as officials anticipated an ideological overhaul once Mr. Session takes over. One former senior official said that department lawyers would be unnerved by the firing.
Democrats, meanwhile, hailed Ms. Yates as a principled defender of what she thought was right. Senator Chuck Schumer of New York, the Democratic leader, said in a statement that the “attorney general should be loyal and pledge fidelity to the law, not the White House. The fact that this administration doesn’t understand that is chilling.”
Mr. Boente has told the White House that he is willing to sign off on Mr. Trump’s executive order on refugees and immigration, according to Joshua Stueve, a spokesman for the United States attorney’s office in Alexandria, Va., where Mr. Boente has served as the top prosecutor since 2015.
Mr. Boente, who has been a prosecutor with the Justice Department for 31 years, had no hesitation about accepting the acting attorney general’s job given his “seniority and loyalty” to the department, Mr. Stueve said in a telephone interview on Monday night.
As acting attorney general, Ms. Yates was the only person at the Justice Department authorized to sign applications for foreign surveillance warrants. Administrations of both parties have interpreted surveillance laws as requiring foreign surveillance warrants be signed only by Senate-confirmed Justice Department officials. Mr. Boente was Senate-confirmed as United States attorney and, though the situation is unprecedented, the White House said he was authorized to sign the warrants.
Ms. Yates’s decision had effectively overruled a finding by the Justice Department’s Office of Legal Counsel, which had already approved the executive order “with respect to form and legality.”
Ms. Yates said her determination in deciding not to defend the order was broader, however, and included questions not only about the order’s lawfulness, but also whether it was a “wise or just” policy. She also alluded to unspecified statements the White House had made before signing the order, which she factored into her review.
While I tend to agree with Yates about the legality and propriety of Trump’s Executive Order, the fact that she was fired and replaced should not be surprising, nor should it be seen as improper.
In the immediate aftermath of last night’s events, many commentators drew analogies to what came to be known as the “Saturday Night Massacre” in October 1973 when the White House and Justice Department clashed over the ongoing investigation into the break-in at the Democratic National Committee’s office in the Watergate complex and the White House’s involvement in that affair. In an obvious effort to throw the investigation into chaos, President Nixon ordered then-Attorney General Elliot Richardson to fire Archibald Cox, the Special Prosecutor who was investigating the affair and had convened a local Grand Jury. Richardson refused to carry out the order and resigned in protest, at which point Nixon ordered Deputy Attorney General William Ruckelshaus to fire Cox. Ruckelshaus also refused to carry out the order and similarly resigned. This left the Justice Department nearly leaderless except for Solicitor General Robert Bork, who was next in the line of succession. In what he later said was an effort to maintain a functioning Justice Department, Bork ended up following Nixon’s order. Cox was fired and replaced by Bork with Leon Jaworski, who continued Cox’s investigation and eventually won several key legal victories, including the landmark Supreme Court case United States v. Nixon, that eventually led to Nixon’s resignation ten months later.
While the form and context of the Yates firing may look similar to what happened in October 1973, the circumstances were far different, and the President was well within his authority to take the action he did last night. First of all, the law at the time said that the Special Prosecutor investigating the Watergate scandal could only be fired “for cause,” meaning some neglect of duties, and there were no such grounds on which basis could be fired. Under current law, Yates, like most other political appointees in the Executive Branch served at the pleasure of the President and, indeed, was only serving at Attorney General on a temporary basis. Second, what Yates was refusing to do was far different from what Richardson and Ruckelshaus refused to do. In the second case, the men were being asked to fire a Special Prosecutor who was investigating a scandal that it was already clear had stretched into the White House and who had been appointed for the specific purpose of ensuring that the investigation itself was free of political interference. By contrast, Yates had taken it upon herself to attempt to lead a rebellion at the Department of Justice even though it was clear that she was merely serving as a caretaker in the Department and that the Executive Order in question had already been reviewed by the Department’s Office of Legal Counsel. Arguably, one might say that as an attorney Yates has the right and obligation as an attorney to refuse to enforce laws that they believe to be unconstitutional or to obey orders they believe to be illegal. While that may be true, that doesn’t mean that she had the right to be able to continue as Acting Attorney General once she made it clear that she wouldn’t defend the government in court as the Justice Department is generally required to do. In the end, the Attorney General serves at the pleasure of the President and if the President believes his Attorney General either can’t or won’t do their job, then he is free to fire them.
None of this means that I believe that Trump’s Executive Order was either proper or legal, but as Josh Blackmon explains in Politico, Yates went about her protest in the wrong way:
Yates acknowledged that there was a credible argument that the executive order was constitutional—she said only that she was not convinced by the OLC’s determination that it was lawful, hinting at the president’s campaign-trail calls for a “Muslim ban.” But many laws of dubious constitutionality are routinely, and zealously, defended in court by the Justice Department. Her objection, instead, was that the order was unwise or unjust. These may be valid points for a public citizen to raise, but the attorney general has a statutory duty to “[r]epresent the United States in legal matters generally,” regardless of her personal proclivities. Herman Pfleger, former legal adviser at the State Department, once explained, “‘You should never say ‘no’ to your client when the law and your conscience say ‘yes’; but you should never, ever say ‘yes’ when your law and conscience say ‘no.'” If Yates’s conscience said ‘no,’ but the law said ‘yes,’ her choice was to proudly voice those opinions. Doing so would have been essential to maintaining the independence of the Justice Department. But if her entreaties were rebuffed, she should have resigned, and then publicly voiced her dissent.
Given her long years of service at the Justice Department and her legal education, Yates was probably aware of all of this when she choose to speak out last night. Realistically, she probably also suspected that making her feelings known publicly would lead to her removal from office. Whether she did or not, though, there was nothing improper in the circumstances that led to her removal and replacement and any analogies to the events of October 1973 is entirely misplaced.