Tuesday, January 31, 2017

Acting Attorney General Warhol

In the future, everyone will be Eliot Richardson for 15 minutes:
President Donald Trump fired acting Attorney General Sally Yates as conflict escalated over his executive order banning entry to the U.S. by citizens of seven predominantly Muslim nations.

Yates, an Obama administration holdover, was ousted Monday just hours after she told Justice Department staff not to defend the ban in court because she didn’t think it was legal. A White House statement said she was removed for “refusing to enforce a legal order designed to protect the citizens of the United States.” 
An acting attorney general who runs the office on whim? Yeah, that sounds like someone from the Obama administration. There's more:
Trump quickly named another Obama appointee to the post, Dana Boente, the U.S. attorney for the Eastern District of Virginia, who instructed the department’s lawyers to defend the immigration ban against legal challenges. Boente would stay until Trump’s choice for Attorney General, Jeff Sessions, is confirmed by the Senate -- though Democrats are vowing a vicious fight to block the nomination.
We can argue the merits of Trump's decision; I fully expect we'll be arguing the merits of all of Trump's decisions rather a lot over the next four years. What is unacceptable is the idea that an attorney general, even an acting one, can take the law into her own hands. Yates admits as much:

My role is different from that of the Office of Legal Counsel (OLC), which, through administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted. Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just. 

Similarly, in litigation, DOJ Civil Division lawyers are charged with advancing reasonable legal arguments that can be made supporting an Executive Order. But my role as leader of this institution is different and broader. My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, 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. 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.

Emphasis mine. In other words, Yates felt she had the ability to determine what is "wise or just." And that's a problem, as Jonathan Adler writes at the Washington Post:
A few quick observations. First, the statement seems to indicate that the executive order was reviewed by the Justice Department’s Office of Legal Counsel, which apparently concluded that the executive order was lawful. Second, Yates does not claim that she cannot defend the executive order because it is unconstitutional or because the Justice Department would be unable to offer good-faith arguments in defense of its legality. To the contrary, Yates claims she is ordering the Justice Department not to defend the executive order because it is not “wise or just.” This is quite significant. I am not aware of any instance in which the Justice Department has refused to defend a presumptively lawful executive action on this basis.
That's because there is no basis for defying a lawful executive action. And this is where the comparison to Eliot Richardson, who refused to fire Archibald Cox during the Nixon years, is apt. Back to Adler:
Some have asked what I think AAG Yates should have done, given her views of the EO. My answer is simple: Resign, and then publicly explain her reasons for doing so. If Yates believes that the President’s various comments about a “Muslim ban” undermine her ability to defend (or oversee the defense of) an executive action that OLC concluded (and she does not dispute) is “lawful on its face,” she should have stepped down as Acting Attorney General.

There is some precedent for this sort of thing. Recall the “Saturday Night Massacre,” when Attorney General Eliot Richardson and Deputy Attorney General William Ruckleshaus resigned rather than fire special prosecutor Archibald Cox at President Nixon’s insistence. If AAG Yates believes she is being asked to do something that violates her conscience — as she apparently does — this is the model she should have followed.
It won't matter in the end, because Jeff Sessions will be the attorney general eventually. But let's face it; this wasn't about conscience. It was a career move. Until yesterday evening, very people knew who Sally Yates was. Today, she's famous. At a minimum, she should get a few guest shots on MSNBC outta the deal. She also sends a signal that the rest of the entrenched bureaucracy will quickly note -- opposing Trump is a great way to get your name in the papers. I expect we'll see a lot more bureaucrats seeking their 15 minutes of fame in the coming weeks.


Bike Bubba said...

I think it's about time to start prosecuting, say, former attorney generals found in contempt of Congress. Holder's quick tweet in support of Yates illustrates who's going to be pulling the levers for her career, and Yates' refusal to defend a defensible executive order suggests that there was a lot of "refusal to defend valid laws" going on at all levels in the Obama DOJ. The question is not whether Holder and others ought to be indicted, but when.

jerrye92002 said...

Not sure about that. Holder is going to be very busy defending "sanctuary state" Californicatia. I still say we should just arrest a few mayors and see how that goes.