Law

In Yates Versus Trump, the Constitution Won

The president fired his acting attorney general for doing her duty, not his bidding.

Defending her oath.

Photographer: Mark Wilson/Getty Images

The Monday night massacre -- as President Donald Trump’s firing of acting Attorney General Sally Yates was inevitably called -- lacked the grand madness of Richard Nixon’s famous firing of special prosecutor Archibald Cox on Oct. 20, 1973, which prompted the resignations of the attorney general and the deputy attorney general.

Trump’s peremptory dismissal of Yates for refusing to enforce his executive order on immigration came symbolically at the beginning of his presidency, not with the end in sight, as in Nixon’s case.

But Trump’s action was nevertheless redolent of self-destructive bravado, much like Nixon’s. While technically within the authority of the executive, both actions revealed the instincts of a president who believed that he could get away with firing a subordinate to avoid the embarrassment of government institutions turning against him. Nixon was proved wrong -- and while Trump is not in danger of imminent impeachment, he’s going to wear the shame of this firing for a long time.

To state the obvious, there are differences between the two massacres. Nixon fired Cox because he was coming too close to the Nixon administration in the Watergate investigation. Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus both resigned rather than do Nixon’s bidding and fire Cox.

Trump fired Yates because she issued a defiant public statement asserting that she would not instruct Justice lawyers to defend the executive order because she did not consider it lawful. That was certainly insubordination.

Yet it was insubordination based on law -- the kind of insubordination that law professors like me hold up to our students as the very model of public duty -- much like the sainted Cox’s refusal to back off in his investigation of the president who had (indirectly) appointed him.

Yates’s statement was remarkable. It seemed to acknowledge that the department’s Office of Legal Counsel, which Trump had ignored before issuing his executive order, had since reviewed the order and found it to be constitutional. Yet Yates went on to declare that her duty as acting attorney general was different from that of the OLC. In the process, she dealt at least a glancing blow to the office.

Yates stated that “OLC’s review is limited to the narrow question of whether … a proposed Executive Order is lawful on its face and properly drafted.” The purpose of emphasizing that the OLC only reviewed the text of the order, not its context, was to say that the OLC “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.”

Yates was clearly referring to Trump’s comments to the Christian Broadcast Network and on Twitter that he intended to prefer Christian to Muslim refugee. There was also former New York mayor and Trump special adviser Rudy Giuliani’s self-aggrandizing claim that he and others put together the order for Trump to accomplish a “Muslim ban” legally. Yates was effectively saying that these statements provide the context to show that the order was issued with religious animus against Muslims. That’s correct, as I argued Monday.

Yates wasn’t done. She said that her job, unlike the OLC’s, included considering “whether any policy choice embodied in an Executive Order is wise or just.” That’s completely appropriate for someone in a position of responsibility, who is required to consider the morality of government enactments, not merely their legality.

Finally, Yates referred to “this institution’s solemn obligation to always seek justice and stand for what is right.” The reference to the institutional nature of the Department of Justice is highly significant. Yates was saying that the department has a long-term obligation, transcending any particular administration, to stand for the rule of law.

That’s an inspiring position for the head of a department that is called the Department of Justice, not the Department of Following Orders.

It was also a brave one. Technically, the Department of Justice is part of the executive branch, and its employees, except for those who are career civil servants, serve at the pleasure of the president. He can fire them, like he fired Yates -- and like Nixon fired Cox.

But the institutional structure of the department is greater than that of any one employee -- or any one president. The Department of Justice has a grand tradition as the institution of government that worked to desegregate schools and fight for civil rights for women, gay people, and others. That can be squandered in an instant, Yates was saying -- and it wouldn’t happen on her watch.

Trump seems to think that his legal right to fire Yates and replace her translates into the moral high ground. The White House statement about the firing described her as having “betrayed” the administration, language that starkly demonstrates the bizarre idea that Yates, an Obama appointee, owed a greater duty to Trump than to the Constitution and laws of the United States that she took an oath to defend.

The firing will follow Trump not only for the rest of his presidency, but into the history books. Institutions like the Department of Justice are trusted in our society because they transcend specific presidents and partisan loyalties. The people who work at the Department of Justice stand for the rule of law, defined according to their own consciences, not the whim of the president who happens to be serving.

Rejecting the independent judgment of Justice Department officials sends a message of disrespect for the rule of law that they embody. Trump may be the head of the executive branch with the power to hire and fire. But as he is learning the hard way, he isn’t more powerful than the institutions of the executive branch and the commitments that they uphold. Thank goodness.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Noah Feldman at nfeldman7@bloomberg.net

    To contact the editor responsible for this story:
    Therese Raphael at traphael4@bloomberg.net

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