If you’re just getting up, the big news overnight was Donald Trump suppressing a mutiny by Obama holdovers in his administration. It started when the acting Attorney General, Obama-appointed Deputy Attorney General Sally Yates ordered the Justice Department to not defend Trumps travel ban executive order. She did it not because the order was illegal but because she didn’t like it. Trump ordered her off the island.
Jeff Sessions is going to eventually be confirmed as Attorney General so the left trotted out this video of Senator Jeff Sessions asking Deputy AG-nominee Sally Yates about defying the president:
This is the gist of the exchange:
SESSIONS: You have to watch out, because people will be asking you do to things you just need to say no about. Do you think the attorney general has the responsibility to say no to the president if he asks for something that’s improper?
A lot of people have defended the [Loretta] Lynch nomination, for example, by saying: ‘Well, he appoints somebody who’s going to execute his views. What’s wrong with that?’ But if the views the president wants to execute are unlawful, should the attorney general or the deputy attorney general say no?”
YATES: Senator, I believe that the attorney general or the deputy attorney general has an obligation to follow the law and the Constitution, and to give their independent legal advice to the president.
SESSIONS: Well, that’s true. And like any CEO, with a law firm — sometimes the lawyers have to tell the CEO: ‘Mr. CEO, you can’t do that. Don’t do that. We’ll get us sued. It’s going to be in violation of the law. You’ll regret it, please.’ No matter how headstrong they might be. Do you feel like that’s the duty on [sic] the attorney general’s office?
YATES: I do believe that that’s the duty of the attorney general’s office, to fairly and impartially evaluate the law and to provide the president and the administration with impartial legal advice.
If you’re waiting to hear the part where Sessions asks or Yates states that it is okay to carry out a guerrilla war against the president, get comfy. It doesn’t happen. In fact, you will note that Yates didn’t merely advise the president, she substituted her judgment for his. This has been noticed by people who you wouldn’t call big Trump fans, like the Washington Post’s Jonathan Adler:
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.
SECOND UPDATE: 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.
Yates is obviously in an extraordinarily difficult position as Acting Attorney General for a President whose policy goals she does not share. She is clearly repulsed by the EO, and wants no part in its enforcement. (One of the many elements of poor governance by the Trump administration was to issue the controversial and poorly thought-through EO when Barack Obama’s Deputy Attorney General is serving as Acting Attorney General.) But if Yates feels this way, she should have resigned (though if Yates goes, there may be no statutory officer in DOJ who can approve FISA orders.) Instead, she wrote a letter that appears to depart sharply from the usual criteria that an Attorney General would apply in deciding whether to defend an EO in court. As such, the letter seems like an act of insubordination that invites the President to fire her. Which he did.
Absolutely no one, as far as I can tell, is telling Yates that she needed to support Trump. But her options are binary. Either support the president’s actions with the same vigor with which you’d defend something you believe in or resign. Option C, keeping your job and refusing to do your duty, is not on the table.