Both of these things are true: The tinpot despot was well within his rights to fire the acting Attorney General — but the acting Attorney General was well within her rights to do her job and defend the U.S. Constitution.
Sally Yates, our instant household name, was actually put on notice two years ago — by the Republicans — that if she ever had to choose between a president and the Constitution, she should certainly favor the latter. The Justice Department veteran was being vetted for the post of deputy AG, and the Republicans wanted to ensure that she had the guts to stand up to a president if necessary. Because, of course, the Justice Department has to be independent. Oh the irony.
During her confirmation hearing, a Republican senator — Jeff Sessions, no less! — asked: “You have to watch out because people will be asking you to do things and you need to say no. You think the attorney general has the responsibility to say no to the president if he asks for something that’s improper? … If the views the president wants to execute are unlawful, should the attorney general or the deputy attorney general say, no?”
Yates’ response: “Senator, I believe 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.”
And so, having scrutinized Trump’s crackpot decree that targets tens of thousands of heavily vetted innocents from seven Muslim-majority nations (but not anyone from the Muslim-majority nations where he does business), Yates, as acting AG, announced yesterday that she could not in good conscience instruct Justice lawyers to defend what could well be constitutionally indefensible. Within hours, Trump terminated her career.
Apparently she missed the caveat in Sessions’ confirmation question. She wasn’t supposed to stand up to all presidents — just the black guy.
Yeah, Trump had the power to fire Yates (much the way a highway cop has the power to write you a ticket for speeding one mile over the limit). But it’s the big picture that matters here. His executive order has sown chaos within the government, even within the Republican Party, and among our allies worldwide. Every hour brings fresh condemnations: “This action was malicious, counterproductive and inept — the half-baked work of amateurs who know little about security, little about immigration law and nothing about compassion … with no security upside at all, given the utter incompetence with which the order was drafted and the likelihood that the courts will prevent its implementation.”
That’s from conservative Michael Gerson, former senior aide and speechwriter for George W. Bush.
Note his last line, about “the likelihood that the courts will prevent its implementation.” Four federal judges have already signaled thumbs-down on various aspects of the order. And when Sally Yates voiced her objections yesterday, she was likely referencing the provisions that curb the right of due process and single out Muslims. The religious angle is particularly important, because the First Amendment bars the favoring of one religion over another, and the Supreme Court has already ruled that the government may not “aid or oppose any religion. This prohibition is absolute.”
If Yates, as the top Justice officer, had been consulted prior to the issuance of the executive order, she would’ve had the opportunity to warn about the constitutional minefield. But the Trump bunker doesn’t work that way. Trump’s own Homeland Security director didn’t know about the order’s issuance until he saw it reported on TV.
And the way Trump fired Yates … what a disgrace. He let loose with a partisan rant fit for the campaign trail. Yates, he declared, “has betrayed the Department of Justice … Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration.”
In Trumplandia, anyone who opposes Trump is assailed as “weak.” John McCain and Lindsey Graham are “sadly weak.” Paul Ryan is “weak in immigration.” Marco Rubio is weak. Every Republican who ran in the primaries was weak. (Last winter: “All of ’em are weak, they’re just weak. I think they’re weak, generally … So I refuse to say that they’re weak generally, O.K.? Some of them are fine people. But they are weak.”)
And the thing about Yates being an Obama appointee, implying that the Obama link taints her … heck, the guy Trump just installed as her replacement was also an Obama appointee. And with respect to Yates, check this out: “Sally Yates is an exceptionally skilled attorney with a talented record of public service … She has served with distinction as U.S. attorney for Georgia’s Northern District and throughout her career has demonstrated her abilities as a talented prosecutor.” So said Johnny Isakson and Saxby Chambliss in 2014. The red-state Georgia senators, both Republicans.
As for Trump’s claim that Yates “betrayed” the Justice Department — in other words, him — we should note that her oath of office said nothing about fealty to any agency or person. It’s about our founding document and nothing else: “I will support and defend the Constitution of the United States against all enemies foreign and domestic.”
And even Josh Blackman, a right-leaning law professor who defends the firing, is alarmed by Trump’s use of the word “betrayed.” Blackman says that executive branch officials “should feel free to raise constitutional doubts to the White House. However, if those in the minority sense that they will be deemed traitors, the voices of reason within the government will be silenced for fear of persecution.”
Sally Yates is a casualty in Trump’s war on the rule of law. She won’t be the last.
Those of you with Facebook accounts should visit my page to see the photo of Karl Rove and me in a buddy embrace. Given what we have now, Rove is starting to look good.