With the nomination of California Attorney General Xavier Becerra for Secretary of the Department of Health and Human Services, the list of presumed frontrunners for Attorney General is narrowing. One name remains prominently at top: former Associate Attorney General Sally Yates. Yates’ appointment would be one of the most controversial for Biden and would likely lead to an intense confirmation fight over her standoff with President Donald Trump at the start of his Administration as well as her role in the Russian investigation. However, in a strange way, Yates’ controversy could be exactly what both President Trump and President-Elect Joe Biden need if they are looking a basis for a self-pardon.
The short list for Attorney General contains some notable and less controversial figures like Judge Merrick Garland, former Sen. Doug Jones, and former Homeland Security Secretary Jeh Johnson. However, Sally Yates is one of the most astute political operatives in Washington. She went from relative obscurity to legendary status in one of the most cynical and successful calculations in history. She engineered her own firing at the hands of Trump – a virtual canonizing act for the media and many liberals.
When Trump was inaugurated, Yates had only a few days left in government. She became acting attorney general in January 2017, following the departure of Attorney General Loretta Lynch. Yates had already been instrumental in signing off on secret surveillance of Trump associate Carter Page during the Obama Administration and had pushed for the investigation of incoming National Security Adviser Michael Flynn. Both investigations of possible Russian collusion were found to be without merit and Yates recently said that she would not have signed off on the surveillance if she knew then what she knows today.
Yates had just become acting Attorney General when she was given the opportunity of a lifetime. Trump was about to sign his travel ban and had sent the draft to the Justice Department’s Office of Legal Counsel, an office ordinarily given considerable deference on the legality of policies and orders. The career staff at the OLC had found that the order was legal and within Trump’s authority. Yates however quickly sent out an unprecedented order to the entire department not to assist the White House on the executive order. The move thrilled commentators and media figures who had long accused Trump of religious and racial bigotry. I was (and remain) critical of her action on the travel ban.
For the record, I was one of the earliest critics of the order both on policy and drafting grounds. The order failed to address such groups as green-card holders and others legally present in the United States (those errors would later be addressed in subsequent orders). However, Yates did not say that the order was illegal. Rather, she declared that she was not convinced the order was “wise or just” or “lawful.” It was a bizarre order since it is not the job of Justice Department attorneys to decide if a president is acting in a “wise or just.” 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.”
Of course, if Yates felt the order was morally or legally wrong, Yates could have resigned like Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus in the infamous “Saturday Night Massacre” under President Nixon. Why didn’t she?
The reason seems obvious. An official resigning a few days before she was scheduled to resign is hardly news. Yates appeared to want to be fired. She knew that such an order would make her termination virtually inevitable. Since ancient times, the only path to instant glory other than slaying a great tyrant is to fall by his hand. Trump fired Yates and she immediately entered the Pantheon of fallen heroes for the left.
Notably, while the order would be expanded and altered in later superseding orders, the core of the travel ban remained the same. Indeed, the challengers went to the Supreme Court and said that it was essentially the same order with the same underlying discriminatory impact. Yates later explained that she considered the order discriminatory for the same reason. Yet, the Supreme Court ruled that she was wrong and the OLC was right. The order was constitutional. It was not struck down but expanded. That does not mean that reasonable people could not have disagreed on that point. As I mentioned, I was a critic of the order. However, as I also noted, the existing case law favored Trump and, at best, this was a close matter for the courts to decide (not Sally Yates).
It did not matter. The legend was made. She spoke at the Democratic National Convention and declared: “I was fired for refusing to defend Trump’s shameful and unlawful Muslim travel ban.” It did not matter that the order was not unlawful but upheld by the Supreme Court.
It seems odd that Biden would even consider the addition of another controversial nomination to his Cabinet while arguing that he wants to heal and unify the country. Yates is clearly an intelligent person and her nomination would be very popular with many on the left. Yet, there is also an interesting dynamic to the nomination as it relates to the controversy over the self-pardon. This may not be the impetus behind the push for Yates but it could be an unexpected benefit. This could be a case where two controversies (like two negatives in mathematics) make a positive.
There has been much discussion over the possibility that Trump could grant himself a self-pardon before leaving office. While this question has bedeviled law professors for years, I have long held the view (before the Trump Administration) that a president can grant a self-pardon but should not do so. Judge Richard Posner discussed the issue in commentary and also concluded that “it has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.”
Others disagree (including an excellent piece by Michael Luttig today which is the subject of a response on this blog). Recently, Professor Larry Tribe insisted that Trump cannot constitutionally grant himself a pardon and noted that, if that were the case, Trump’s joke about shooting someone on Fifth Avenue, would “would make that literally true.” (In truth, it would not. Murder is first and foremost a state offense which is not in any way limited by federal pardon power). While I honestly doubt the courts would ultimately uphold Tribe’s view, we may be moving to resolve this interesting question.
On a political level, a Trump self-pardon would might be quietly welcomed by Biden. The President-elect is already getting increasing demands from the left to carry out proposals ranging from packing the Supreme Court to free college tuition to major tax increases to D.C. statehood. There are also rising calls for the prosecution of Trump and many in his inner circle. Biden needs those prosecutions like another election recount. It will continue divisions and discord into his Administration.
So why would Yates help? Because her nomination would be the ultimate argument for Trump to use for a self-pardon. Yates would rekindle far-right deep state conspiracies and confirm for many that the same biased, anti-Trump officials were being returned to the Justice Department. I would hope that Yates would not act in such a predatorial fashion but Biden could not pick anyone (short of James Comey) who would be more triggering for the right.
So everyone might win in a strange way with a Yates confirmation. Yates would pull off the most dramatic staged demise since Romeo and Juliet. Biden would have an excuse not to investigate and prosecute Trump. Trump would reduce his exposure to only state prosecutions while claiming that he had no choice but to self-pardon. Everyone was left no choice and politics again triumphs over principle. To paraphrase the move “The Bronx Tale,” “you can ask anybody from my neighborhood, and they’ll just tell you this is just another [Beltway] tale.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.
Marc Elias:
“BREAKING: A unanimous Arizona Supreme Court AFFIRMS ‘the trial court decision and confirming the election of the Biden Electors under A.R.S. § 16-676(B).’
“Arizona is DONE!!!
“Trump and his allies remain 1-51 in post-election litigation.”
TURLEY, YOU’RE A FLIPPIN IDIOT! MAYBE THE SUPREME COURT IN PA. BUT NOT “THEE” SUPREME COURT! FUNNY HOW YOU TWIST THINGS TO YOUR WAY OF THINKING! YOU PIECE OF SHIT, KEEP OPENING YOUR MOUTH & KEEP STICKING YOUR FOOT IN IT! YOU’RE PATHETIC! YOU’RE NOT EVEN A RESPECTED JOURNALIST! YOU WORK FOR THE ENEMY! YOU SERIOUSLY NEED TO GET ON YOUR KNEES & REPENT, OTHERWISE, YOU ARE GOING STRAIGHT TO HELL!!!!! BIDEN IS NOT THE PRESIDENT! WILL NEVER BE THE PRESIDENT & ALL Y’ALL ARE GOIN TO GITMO! CAN YOU SAY TREASON/SEDITION/CRIMES AGAINST HUMANITY???? FUNNY HOW MY PRESIDENT TRUMP BROUGHT BACK THE GAS CHAMBER, ELECTRIC CHAIR, HANGING AND FIRING SQUAD! ROTFLMAO! MILITARY TRIBUNALS ARE COMIN FOR YOU!!!! SUCKS TO BE YOU!!!!! CAN’T WAIT UNTIL THEY PUBLICLY SHOW YOUR EXECUTIONS! GOD ALMIGHTY IS IN CHARGE, NOT THAT POS BAAL! YOU SCREWED UP AND GOD DON’T LIKE UGLY!
Welcome to the hell Turley has unleashed.
Indeed. The cray seems to have found a home.
Elvis Bug
You’re a lunatic. Where is the man with the net?
(The Slavery of Fear made men afraid to think.)
If anyone including govt or the medical personal come after you or your family with a Syringe, a forced vaccine, it’s everyones Right to use any means necessary to defend yourself/family against those Aholes.
Dr. Francis Boyle: ‘Bioweapon’ mRNA Vaccines Violate Nuremburg Ruling Against Nazi Cruelty
38,141 views
Dec 8, 2020
https://banned.video/watch?id=5fcfe95936e1a46b3ed3d33c
SUPREME COURT REJECTS PENNSYLVANIA CHALLENGE
The Supreme Court on Tuesday refused a request from Pennsylvania Republicans to overturn the state’s election results. The justices said they would not block a ruling from Pennsylvania’s highest court that had rejected a challenge to the use of mail ballots in the state. The Supreme Court’s order was all of one sentence, and there were no noted dissents.
The request that the Supreme Court intercede had faced substantial legal hurdles, as it was filed long after the enactment of the challenged statute that allowed mailed ballots and was based on questions of state rather than federal law.
In late November, the Pennsylvania Supreme Court ruled against the plaintiffs, led by Representative Mike Kelly, a Republican, on the first ground, saying they could have challenged a 2019 law allowing vote by mail for any reason more than a year ago.
“At the time this action was filed on Nov. 21, 2020, millions of Pennsylvania voters had already expressed their will in both the June 2020 primary election and the November 2020 general election,” the court said. “Petitioners failed to act with due diligence in presenting the instant claim. Equally clear is the substantial prejudice arising from petitioners’ failure to institute promptly a facial challenge to the mail-in voting statutory scheme, as such inaction would result in the disenfranchisement of millions of Pennsylvania voters.”
Edited from: “Supreme Court Refuses Request From Pennsylvania GOP To Overturn State’s Election Results”
Today’s New York Times
Totally unsurprising.
The quote in the NYT article is from the Pennsylvania Supreme Court.
Here’s a copy of the order from SCOTUS: https://www.supremecourt.gov/orders/courtorders/120820zr_bq7d.pdf
“KELLY, MIKE, ET AL. V. PENNSYLVANIA, ET AL.
“The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied.”
Yeah, Commit, that’s about as curt as it gets.
Will Sally Yates serve if confirmed to be Attorney General and abide by the Constitution? From her prior history servicing as acting Attorney General the only answer would be no. Either she has little to no understanding of the Constitution, is prone to serve her superiors, or partisan. I would hope that the Senate, if the Republicans maintain majority, would reject her nomination after testifying about her obscurantism of FISA applications. If she does become Attorney General and pursues any legal action against President Trump for suppose crimes that will assure any uncertainty that may exist that the Presidential election was indeed rigged. I can only pray that mature minds will prevail, but I have my doubts, considering the previous four years of Salem like witch hunts by the Democratic Parties leadership.
If Kurtz is still here he will like this, I do:
https://hlli.org/wp-content/uploads/2020/12/Greenberg.29.Opinion.pdf
A Federal court shot down a bar association’s outrageous proposal to regulate ‘bias’ speech on members of the bar.
These regulations need to be squashed flat and those who propose them ridiculed.
Saloth Sar (the guy posting about billionaires) is Kurtz.
ODD PASSAGE IN COLUMN
“The short list for Attorney General contains some notable and less controversial figures like Judge Merrick Garland”.
Indeed, Professor. Merrick Garland is considered perfectly mainstream and middle of the road. Garland is, in fact, precisely the kind of Justice we should have on the Supreme Court; ‘a judge free of any particular ideology’. Yet Republicans considered Garland ‘controversial’ only because he was nominated to the court by President Obama. For that reason Garland could not even get a hearing.
There was a fear, of course, that had Garland been allowed a fair hearing, he might have come across as perfectly mainstream, middle of the road. Public reaction might well have been, “Garland seems reasonable to me”. This would have left Republicans with no excuse ‘not’ to confirm Justice Garland. So they had to play a big charade where Garland couldn’t even be considered in an election year. And now we know how serious Republicans were about sticking to that rule.
Tucker Carlson: China “has people at the top of America’s core inner circle of power & influence.”
The bought-off, sold-out, treasonous American Deep Deep State.
American communists (liberals, progressives, socialists, democrats, RINOs) have adhered to America’s enemy, China, and have been caught giving that enemy aid and comfort.
__________________________________________________________________________________________________________________________________________
Article 3, Section 3
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.
What good will a pardon do? Sullivan is ignoring Trump’s pardon of Flynn. This is the complete and total breakdown of our justice system. How do you defend this, Mr. Turley?
The 2020 election has been egregiously tampered with, is irredeemable and entirely without remedy, and must be declared null and void by the Supreme Court and referred to Congress.
America is in a condition of hysteria, incoherence, corruption, chaos, anarchy and rebellion.
President Abraham Lincoln declared martial law, seized power, neutralized the legislative and judicial branches and ruled by executive order and proclamation to “Save the Union.”
President Donald Trump must now declare martial law, seize power, neutralize the legislative and judicial branches and rule by executive order and proclamation to “Save the Republic.”
Sullivan didn’t ignore Trump’s pardon. He dismissed Flynn’s case as moot:
https://www.courtlistener.com/docket/6234142/311/united-states-v-flynn/
“the Court … GRANTS the government’s consent motion based on the presidential pardon and DISMISSES this case AS MOOT.”
CommittedToSomethingWrong:
Point of Order: Is Sullivan a government official?
CTHD– Yes, Judge ‘Jeffreys’ Sullivan dismissed the case as moot. But first he scheduled more briefs to be delivered and I suspect someone higher up in the tottering system noticed and told him to knock it off because he has done too much damage to the courts as it is.
Sullivan ‘needed’ to prepare a 43-page memorandum to finally dismiss an action that should have been dismissed months ago and which he was preparing to drag on even longer.
https://www.scribd.com/document/487386374/Sullivan-Memo
I think he was spanked and his memo is intended to try to cya. The order could have been completed in a single page, and it should have been.
As long as hooligans are toppling statues, they might as well kick over the statue of Lady Justice. Sullivan probably will help. He has already done it figuratively.
And Roberts? Where was Roberts when this was happening?
As for CTHD’s comment above, I don’t think that this was a case of Sullivan not ignoring the pardon so much as his not ignoring the kick in the pants he got from above.
You raise a good point. What good is a pardon if these people are prepared to ignore them? That was one of the issues Caesar faced when he was going to lay down his command and return to Rome as a civilian. As quick as boiled asparagus they were going to prosecute him. He had stopped his army at the southern limit of his command–at the Rubicon.
We know what happened next.
Is that comment about the impending communist takeover of America or about you? You’re are sophisticated and erudite. That’s a given. What else is a given is that you’re about to become a sophisticated and erudite communist in an America which has been subsumed by the global hegemon, communist China. Oh, hells yes! Let’s ruminate about Caesar as Washington burns.
George, I don’t think you quite grasped my meaning. I hope Trump uses the extraordinary but legal powers of the executive to prevent a takeover. He may not have a choice if they insist on boxing him in with threats to destroy him even if he has a pardon.
The Democrats have broken in the back of the structure of government to facilitate election fraud and take control. But they haven’t realized who is coming through the open door behind them, China, Iran, and oligarchs. They are fools and all of us will pay for their folly. Trump might be able to stop it.
Flynn case finally dismissed by Sullivan (Freisler). His asking for still more briefs must finally have caught the attention of someone higher up. I suspect he is too twisted to have made this decision on his own.
I suspect Young is too twisted to make any rational comments about this case.
I disagree with several points.
Deep state conspiracy theories are no longer, “far right.” Many middle Americans entertain varying degrees of suspicion – ranging from Swampiness all the way out to QAnon stuff.
I haven’t been following the “Trump needs to pardon himself” nonsense, but as a move to defend himself against the irrational hatred of the quivering mobmind, it makes sense. You’d think the one really salivating after a presidential pardon would be Scheming Joe, but he’s so crooked, straight and narrow must look like a u-bend in his eyes. I doubt he even knows he’s done anything wrong. The religiously Left is no better. Day by day they resemble more and more, those grape flavored minions from Despicable Me 2. They see the world in kaleidoscope shapes.
The video in the link points directly to Chinese interference in American affairs, compromised American ‘elites’, Hunter Biden’s misconduct and ties to China, and Chinese interference in our election.
And it has been praised by a Chinese elite whose original video has since been scrubbed. From his remarks it looks as if he thought he could speak freely because he believed their sabotage had already elected a senile and confused man into the White House.
https://theconservativetreehouse.com/2020/12/08/tucker-carlson-highlights-beijing-admission-about-how-china-controls-dc-politicians/
More than ever it seems likely that our national security is at stake and that the President must use the extraordinary powers residing in the office of the executive. This is worse than Pearl Harbor. There the Navy was badly damaged. Here the entire country has been damaged. We didn’t sue the Japanese after Pearl Harbor.