A peculiar situation unfolded at the United States Department of Justice on the evening of January 30, 2017.
Sally Yates, a holdover from the Obama Administration, had been serving as Acting Attorney General until a final vote could be held on President Donald Trump's nominee for the position, Senator Jeff Sessions of Alabama. One of the jobs of the Attorney General is to defend the positions of the United States Government in Court.
However, the then-Acting Attorney General instead wrote a letter to lawyers at the DOJ directing them to not defend the President's Executive Order (EO) issued on January 27, 2017, titled “Protecting the Nation From Foreign Terrorist Entry Into the United States” [link]. In her letter, Yates acknowledged that the Office of Legal Counsel (OLC) had found the EO to be “lawful on its face and properly drafted.” However, Yates nevertheless found it proper to direct the DOJ to not defend the EO. She presented several arguments in defense of her position. First, she cited to “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.” Second, she stated that the OLC's review does “not address whether any policy choice embodied in an Executive Order is wise or just.” Third, she stated that her responsibility was 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.” Finally, she stated that her responsibility was to ensure that the DOJ “always seek[s] justice and stand[s] for what is right.”
To put it mildly, the acting Attorney General's letter was irresponsible. In her letter, Yates acknowledged that the EO had been found to be legal on the face and properly drafted by the OLC. Interestingly, at no point in her letter did she actually argue that the order was unconstitutional or otherwise illegal. Rather, she cited to principles such as determining whether the policy was “wise or just,” determining that the DOJ's position is “informed by [its] best view of the law is,” and ensuring that the DOJ “seek justice” and “stand for what is right.”
To do something as extraordinary as to order the DOJ to not defend an EO issued by the President that had been found to be legal on the fact and properly drafted by the OLC, one would expect a lawyer of Yates' considerable caliber and accomplishments to present coherent and salient legal arguments. Instead, she merely appeared to express disagreement with the policy. To be sure, there have been serious issues in the implementation of the EO and the process that went into drafting it. However, these issues do not bear upon the DOJ's responsibility or ability to defend it in court. The President is responsible for properly executing the laws, and the DOJ is responsible for defending the United States' position in court. Yates was well within her rights to disagree with the contents of the order and the policy. However, if she felt that she could not in good conscience defend the EO, the proper course of action would have been to tender her resignation and allow the President to appoint someone who could.
Left with little choice, President Trump removed Yates from her position and replaced her with Dana Boente, the U.S. Attorney for the Eastern District of Virginia. The President was able to pick a U.S. Attorney of his choosing to the position under 5 U.S.C. 3345(b)(2).1 Acting Attorney General Boente immediately rescinded Yates' order and ordered the DOJ to defend the EO in court. Boente stated that his office had already been defending the EO in the afternoon, and that “[o]ur career department employees were defending that action in court, and I expect that's what they'll do tomorrow, appropriately and properly.”2
President Trump made the correct decision in expeditiously dismissing Yates. Agree or disagree with his EO, it is not the job of the Attorney General to decide whether to do his or her job based on political considerations. However, the statement released by the White House on Yates' dismissal was undeniably bizarre.
The statement began: “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.” Betrayed is an odd and unnecessarily inflammatory word choice. Yates did not betray the DOJ, she refused to do her job as her head, and for that she was rightfully terminated. The nature of the order — right as the White House believes it is — does not make Yates dereliction of her responsibility to defend it a betrayal. The statement continued with a passage that read as if it was drafted by the President himself, “Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration.”3 It is gravely unbecoming of the White House to put out statements on important issues that sound like they were drafted for one of President Trump's campaign rallies. While President Trump in the right in replacing Yates with Acting Attorney General Boente, his administration did itself no favors with its statement on what transpired. This is exactly the type of behavior from the President that I hoped to see curbed once he assumed office [see blog].
In the aftermath of the news, the Senate expects to move expeditiously to confirm Senator Jeff Sessions of Alabama as the next Attorney General. This incident highlights why it is important for President Trump to have his remaining cabinet nominees in place as soon as possible as to begin implementing his administration's agenda.
- Blackman, Josh, “Replacing Acting Attorney General Sally Yates under the Federal Vacancies Reform Act of 1998,” joshblackmanblog.com, (Jan. 30, 2017)
- Stack, Liam, “Dana Boente: Who Is the New Acting Attorney General,” nytimes.com, (Jan. 31, 2017)
- Boston Globe, “Read the full White House statement on Sally Yates,” bostonglobe.com, (Jan. 31, 2017)