Below is my column in The Hill on the possible appointment of Sally Yates as the next United States attorney general. One of the names on the shortlist is Judge Merrick Garland, who not only unites for the country but is not vulnerable to a confirmation hearing. However, Yates’ records raise serious questions about her verdict and actions in the Justice Department.
Here is the column:
As Joe Biden fills his cabinet, more attention is drawn to the position of Attorney General and one of the most cited names on the shortlist Sally Yates. Your deliberation comes as a surprise to an elected president who has pledged to unite the country and move beyond the destructive policies of the past four years. I have always admired Yates’ obvious talent and intellect. But my general assessment of her changed dramatically almost four years ago when she staged an epic battle with a newly-initiated President Trump, forging her own legend.
Yates had just a few days left in government when she became acting attorney general in January 2017 following the departure of Attorney General Loretta Lynch. A week later, Trump signed an executive order restricting 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 obvious flaws such as the lack of exemptions for legitimate residents or green card holders. (Those errors were corrected in a different order.) The ban was an issue Trump fought for and won the presidency, and he wanted to move that first week to fulfill some of his core promises. But the order was poorly worded, poorly executed, and ultimately poorly defended. Yates could have worked with the White House to look for changes as it would later. Instead, she ordered a federal ministry to refuse to help the president.
In granting her order, Yates dismissed a Justice Department law firm review which found the order lawful. Yates did not specifically deny this conclusion; All she said was that she was not convinced that the order was “wise or just” or “lawful”. It is not the job of Justice Department attorneys to decide whether a president is acting “wisely or justly,” only if the act is lawful. If Yates thought the order was unlawful, she could have resigned, as did Attorney General Elliot Richardson and Assistant Attorney General William Ruckelshaus on President Nixon’s infamous Saturday Night Massacre. Apparently, however, she didn’t 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 had to do: he rightly dismissed her. It was a brilliant political move by Yates. With only a few days left in her post, Yates developed her own fire and became a self-made hero for Democrats everywhere. It didn’t matter that former law officials, including outright critics of Trump, questioned whether their actions were ethical or justified. Former judicial officer and Harvard professor Jack Goldsmith pointed out that Yates has not ruled the immigration ordinance unconstitutional, nor has given a basis for refusing to defend it. Accordingly, he said, Yates left the impression of a “disobedience that invites the President to dismiss her”.
Yates knew she would be fired and her successor would meet the Department’s commitments to assist the President of the United States. Many of these lawyers disagreed with the travel ban, but they did their job as promised at the United States Mission. Yates later claimed that she believed the ban could still be discriminatory despite revisions. This was a question that shared professional attorneys within the department and the OLC had found allegedly legitimate. These lawyers defended the order (and later the amended versions) so that the courts could address the issue of discrimination.
However, the media followed the rule quoted by the newspaper editor in the movie “The Man Who Shot Liberty Valance”: “When the legend becomes a reality, print the legend.” The legend of Sally Yates lived on. Indeed, she made sure of it. She received a high profile speaking role at the Democratic National Convention personifying a new Justice Department’s commitment to the rule of law. She stated, “I was fired for refusing to defend Trump’s shameful and illegal Muslim travel ban.” The problem is that what they say is not true. She never declared the order unlawful.
While the ordinance was tweaked and amended, the main ban on Muslim countries remained in place and challengers took it to the Supreme Court in 2018. There, the challengers insisted that the changes to the arrangement did not change major objections to banning Muslim lands. The court upheld the travel ban and overturned the Ninth Circle Appeals Court. It found that Trump had “sufficient national security justification” for his order. It was also found that although most of the forbidden countries have a Muslim majority, the ban “does not infer religious hostility”.
Trump later extended the ban. In other words, Yates prevented the Justice Department from assisting the president with a ban that was later found lawful, as her own OLC staff discovered.
The most remarkable thing about this story is not that the ban was upheld as there were strong arguments on both sides. In fact, Yates never found the order illegal and didn’t leave it to the courts to resolve the issue. This wasn’t their only controversy. Yates signed the Carter Page clandestine surveillance motion, which the Inspector General found to be flawed and based on incorrect information. Page was never charged with a crime. There is no evidence that Yates made material inquiries based on the motion that she would not have signed now if she had known what she knows today. She just signed it and assumed it was legal, despite targeting an election worker in the opposing party.
Yates also expressed little concern about the basis of the investigation into Michael Flynn, another key adviser to the opposing party’s new president. While she recently expressed a lack of clear memory on the subject, she linked earlier reports with raising the possible application of the Logan Act against Flynn, a notoriously unconstitutional law that has never been used to safeguard a single act since its inception in 1799 Condemnation was used.
Flynn’s discussions with Russian diplomats shortly before they became Trump’s national security advisor formed the basis. There was nothing illegal or even unusual in such a notice. Then-FBI Director James Comey reportedly told President Obama and Vice President Biden that the meetings appeared legitimate. However, Yates reportedly went to the White House to sound the alarm, and in a 2017 interview she had no memory problems when she stated that “Flynn’s behavior certainly implies criminal law.”
So the legend of Yates was largely self-created and the media maintained. Biden can create a more sustainable legacy in the Justice Department, but he must first separate it from his mythological past.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.