Below is my column in The Hill on the possible nomination of Sally Yates as the next United States Attorney General. One of the names on the short list is Judge Merrick Garland who would not only be unifying for the country but unassailable at a confirmation hearing. However, Yates’ record raises serious questions about her judgment and actions at the Justice Department.
Here is the column:
As Joe Biden fills out his Cabinet, more attention is drawn to the position of attorney general and one of the most cited names on the short list, which is Sally Yates. Her consideration is surprising for a president-elect who has pledged to unify the country and move beyond the destructive politics of the last four years. I always admired the obvious talent and intellect of Yates. But my overall assessment of her changed dramatically almost four years ago, when she staged an epic battle with a newly inaugurated President Trump and thereby forged her own legend.
Yates had only a few days left in government when she became acting attorney general in January 2017, following the departure of Attorney General Loretta Lynch. One week later, Trump signed an executive order that restricted travel to the United States from seven Muslim majority countries. Yates then took the unprecedented step of ordering the Justice Department to refuse to assist the president in implementing the ban.
I was an early critic of the travel ban, which had glaring errors like the absence of exceptions for legal residents or green-card holders. (Those errors were corrected in an amended order.) The ban was an issue upon which Trump campaigned and won the presidency and he wanted to move in that first week to carry out some of his core promises. But the order was poorly drafted, poorly executed and, ultimately, poorly defended. Yates could have worked with the White House to seek changes, as would later occur; instead, she ordered a federal department to refuse to assist the president.
In issuing her order, Yates dismissed a review by the Justice Department’s Office of Legal Counsel which found the order to be lawful. Yates did not expressly reject that conclusion; she simply stated that she was not convinced the order was “wise or just” or was “lawful.” It is not the job of Justice Department attorneys to decide if a president is acting in a “wise or just” manner but, instead, only if the action is lawful. If Yates felt the order was unlawful, she could have resigned, as did Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus in the infamous “Saturday Night Massacre” under President Nixon. However, she apparently did not want to be known simply as someone who resigned a few days before she was scheduled to leave office.
Yates knew exactly what she was doing, and what Trump would have to do: He rightfully fired her. It was a brilliant political move by Yates. With only a couple days left in her post, Yates engineered her own firing and became a self-made hero for Democrats everywhere. It did not matter that former Justice officials, including outspoken critics of Trump, questioned whether her action was ethical or justified. Former Justice official and Harvard professor Jack Goldsmith pointed out that Yates neither determined the immigration order to be unconstitutional nor cited any basis for refusing to defend it. Accordingly, he said, Yates left the impression of “insubordination that invites the president to fire her.”
Yates knew that she would be fired and her replacement would carry out the obligations of the Department to assist the President of the United States. Many of those lawyers did not agree with the travel ban but they did they job as they had promised to do in representing the United States. Yates maintained afterward that she believed the ban might still be discriminatory, even with revisions. This was a question that divided career attorneys inside the Department and the OLC had found the order presumptively lawful. These lawyers proceeded to defend the order (and later amended versions) to allow the courts to address the issue of discrimination.
Yet the media followed the rule cited by the newspaper editor in the movie, “The Man Who Shot Liberty Valance” — “When the legend becomes fact, print the legend.” The legend of Sally Yates lived on. Indeed, she made sure it did. She was given a high-profile speaking role at the Democratic National Convention, as the personification of a new Justice Department’s commitment to the rule of law. She declared: “I was fired for refusing to defend Trump’s shameful and unlawful Muslim travel ban.” The problem is that her statement is untrue. She never declared the order unlawful.
While the order was tweaked and changed, the main ban on Muslim countries remained and challengers took it to the Supreme Court in 2018. There, the challengers insisted the changes in the order did not alter the main objections to a ban on Muslim countries. The court upheld the travel ban, reversing the Ninth Circuit Court of Appeals. It held that Trump had a “sufficient national security justification” for his order. It also held that, despite most of the banned countries being Muslim-majority, the ban “does not support an inference of religious hostility.”
Trump later expanded the ban. In other words, Yates prevented the Justice Department from assisting the president on a ban that was later found lawful, as her own OLC staff concluded.
What is most remarkable in this story is not that the ban was upheld, since there were strong arguments on both sides. It was that Yates never determined the order to be unlawful and did not leave it to the courts to resolve the issue. This was not her only controversy. Yates signed off on the application for secret surveillance of Carter Page, which was found by the inspector general to be riddled with errors and based on faulty information. Page was never charged with any crime. There is no indication that Yates made any substantive inquiries on the basis for the application, which she now says she would not have signed if she knew what she knows today. She just signed it and assumed it was legal, despite the targeting of a campaign aide in the opposing party.
Yates also showed little concern over the basis for investigating Michael Flynn, another key aide to the incoming president of the opposing party. While she recently expressed a lack of clear memory on the issue, prior reports linked her to raising the possible use against Flynn of the Logan Act, a notoriously unconstitutional law that has never been used to secure a single conviction since its creation in 1799.
The basis was Flynn’s conversations with Russian diplomats shortly before becoming Trump’s national security adviser. There was nothing unlawful or even uncommon in such a communication. Indeed, then FBI Director James Comey reportedly told President Obama and Vice President Biden that the meetings appeared legitimate. Yet Yates reportedly went to the White House to raise the alarm and, in a 2017 interview, she had no memory problems in declaring that “there is certainly a criminal statute that was implicated” by the conduct of Flynn.
So the legend of Yates was largely self-created and media sustained. Biden can create a more lasting legacy at the Justice Department, but he first will need to sever it from its mythological past.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.