The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. This order was approved as to form and legality by the Department of Justice Office of Legal Counsel. – White House Statement, January 30, 2017
he levels of duplicity in the opening paragraph of this White House statement are impressive. Acting Attorney General Sally Yates was appointed to that position at the request of the Trump administration, for the express purpose of serving only until the confirmation of the Trump appointee for Attorney General. (Later White House characterizations of her as an Obama appointee, while accurate in a sense, are profoundly dishonest, as illustrated by Trump’s January 30 tweet calling Yates “an Obama A.G.”)
Georgia native Sally Yates, 56, is a career attorney for the Justice Department who was first hired by Reagan-appointed US Attorney Bob Barr (whose decidedly conservative career included leading the effort to impeach Bill Clinton). Her 27-year career in the Justice Department was impressive enough to win Trump’s interim appointment despite two prior Obama appointments (both approved by the US Senate). She was not, in any meaningful sense, anyone’s political appointee.
Early on January 30, 2017, reportedly after a weekend of contemplation and consideration of the president’s January 27 executive order on immigration, Yates issued a memo to top lawyers at the Justice Department. That memo, in carefully calibrated language, questioned whether the president’s order, already under legal challenge in half a dozen or more federal jurisdictions, was lawful, meaning constitutional. Already Justice Department lawyers in New York had been unable to offer any cogent defense of the order (in part because the Justice Department had almost no part in drafting it). Yates concluded her memo with appropriate caution in response to a murky and chaotic situation created by the order:
Consequently, for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.
This is not a statement of defiance, this is a cautionary note in the midst of a situation spiraling out of control, with the government perpetrating injustice that is being checked by the courts. This is an invitation to be persuaded. The White House made no effort to persuade the acting Attorney General that the order was legally defensible. The White House has not made that argument to anyone publicly. The White House position is that the order is lawful. Because the White House says it is, which is not the way American checks and balances are supposed to work.
In its statement above, the White House asserts baldly that Yates was refusing to “enforce a legal order designed to protect the citizens of the United States.” The first problem is that the Justice Department has no enforcement role under the order, which was then being chaotically enforced by the Department of Homeland Security, sometimes in defiance of court orders (Virginia has filed a motion to hold the Trump administration in contempt of court). The Justice Department under Yates was merely declining to defend the erratic, unfair, and arbitrary enforcement of an order of dubious legality.
The White House claim that the order was “designed to protect the citizens of the United States” was flat-out false. The chaotic implementation of the order was powerful evidence that it hadn’t been “designed” sufficiently, and not at all well. The order, by banning Muslims from countries whose citizens had never attacked the US, did nothing to protect anyone, while doing much harm to thousands of innocent people including Americans. The terrorism “danger” is so slight that even the order itself had to invoke events of more than fifteen years ago (9/11) to create a simulacrum of credibility.
This is old style demagoguery, using inflated or imaginary threats to make the population afraid, a goal shared by terrorists of all stripes. “Islamic radicalism” is but the latest shibboleth to scare the pants off credulous Americans in the grand tradition of non-existent weapons of mass destruction, fighting ”them” (Iraqis, Iranians, Vietnamese, whoever) over there so we don’t have to fight them here, or the evergreen vast communist conspiracy (among others). These familiar styles of deceit, even though easy to debunk, remain in use because they still work.
In addition, we face an expanding universe of “alternative facts” (as Kellyanne Conway nicely phrased it), a universe in which demonstrable facts, logic, math, science, and the other touchstones of traditional, civilized reality no longer matter. George Orwell described something like this in his novel “1984,” where the official language was Newspeak (which had no word for science) and the population learned to believe that “Ignorance is strength.”
The White House statement on Sally Yates is closest to pure Newspeak when it says: “This order was approved as to form and legality by the Department of Justice Office of Legal Counsel.” This is quintessentially Orwellian in the way it obscures the truth without actually lying. The “approval” alleged here is much less than meets the eye. The Office of Legal Counsel has, in the past, been notoriously solicitous of the president, telling him that almost anything he wants to do is legal. At its nadir, this office in 2002, through the good offices of Assistant Attorney General Jay S. Bybee and his deputy John Yoo, assured President Bush that he could torture almost anyone in almost any manner he chose. Trump’s Muslim ban is every bit as “legal” as Bush’s torture regime, or as Newspeak has it: 2 + 2 = 5.
On March 24, 2015, Senator Jeff Sessions, now the Attorney General nominee, questioned Sally Yates about the Office of Legal Counsel during her confirmation hearings (in a clip that has gone viral). Sessions’ point was that the Attorney General’s office should say “No” to a president “if the views a President wants to execute are unlawful.” Yates agreed that was a duty of the Attorney General’s office.
The Office of Legal Counsel rubber-stamped unlawful torture, so its imprimatur has no automatic validity. Independent review is called for in any thorough and orderly process. As Sally Yates wrote in her memo:
My role is different from that of the Office of Legal Counsel (OLC)…. 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 its 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.
Implicitly, the Trump administration may have put the order through such a limited review to avoid precisely the more searching, substantive questions raised by Yates. Whatever the intent, all the available evidence suggests that the administration made a point of avoiding the constitutional issues that are now before the courts. In that behavior, arguably, the president and his aides violated their own constitutional oath to “preserve, protect, and defend the Constitution of the United States” (Article II, Section 1). Sally Yates took a similar oath of office to “support and defend the Constitution of the United States.”
Recently legal writers have taken Yates to task for the manner of her legal dissent. Attorney Alan Dershowitz misrepresented her actions, then criticized them, even though he agreed with her assessment of the policy. Law Professor Josh Blackman of the Cato Institute similarly mischaracterized Yates’s actions (as well as those of others), then tendentiously used his mischaracterization to justify Trump’s firing her. Columnist Edward Morrissey also mischaracterized the actions of Yates and the OLC, calling her carefully worded memo “insubordination” – a falsehood. Insubordination is disobeying a direct order, which Trump had not given, and in this instance, had no authority to give. These articles from The Hill, The Week, and Politico fail to meet minimal standards of accuracy, using straw man arguments to advance false conclusions.
The substantive issues raised by the executive order on immigration remain unresolved. The Trump administration could address them any time it chooses, but intellectual integrity is in short supply at the highest levels of government. The courts will address them in the fullness of time, which may or may not be soon enough. In any fair assessment now, of who was more faithful to their oaths of office, Yates has the clear advantage, so it’s no wonder the White House declined her invitation to persuade and instead fired her with a volley of calumny. Yates “betrayed” no one and nothing. As far as the Constitution goes, the actual traitors here are in the White House.