Re: President Trump’s firing last night of Acting Attorney General Sally Yates, from the previous administration, who declined to argue in court on behalf of his executive order on visa admissions, my own reaction was as follows:
* The most appropriate move for Yates would have been to resign. Noisy resignations are fine in circumstances like these.
* Given her announcement, her removal from the job was entirely routine and to be expected. The difference between what happened and a noisy resignation is not wide enough that anyone should care.
* The Saturday Night Massacre under Nixon misses the mark as an analogy for at least two reasons: Archibald Cox was an independent special prosecutor, a job designed purposefully not to be answerable to the executive branch leadership, and his charge was to investigate Watergate, that is, offenses by the White House.
More views from Ken White, Josh Blackman, Jonathan Adler, Jack Goldsmith, and Ben Wittes.
4 Comments
Another [minor] detail. Cox was fired for refusing to follow an illegal order. Yates was fired for refusing to defend a legal order [that is, do her job] simply because she was philosophically opposed to it.
1. I agree that Yates should have resigned. However, she should not have been fired. Sure, she was a political appointee, but that was a function of the position, not her actual status, which was a career attorney with the DOJ. The appropriate thing would have been for Trump to demand she step down or to reassign her. The thing is, she served “at the pleasure of the president.” The president was not pleased. She should have quit.
2. I am a little fuzzy on the Saturday Night Massacre (SNM) criticism. Let’s get this straight.
a. As I understand it, Cox was a special prosecutor who could only be fired by the AG. The AG and the DAG had told Congress they would not fire Cox, except for cause (as the law allowed). So, when ordered to do so, they resigned. As president, Nixon had the authority to issue orders to his AG or acting AG to fire Cox, although neither one could do so in good conscience because the law prevented them from doing so and they had promised not to. So, Bork did the deed, as he had not made any assurances on the matter and he probably thought, like Nixon, that if the president does it, it cannot be illegal. I think the comparisons being made to the SNM are to the resignations of the AG and DAG, not the firing of Cox.
b. In this case, the acting AG had told Congress that she would stand up to the president if the president asked her to do something she thought improper. She did.
c. So, I would agree that this is not on all fours with either the resignations of the AG and the DAG or with the firing of Cox. However, it is of the same magnitude. Simply put, presidents don’t fire members of the cabinet (even acting members). Indeed, I cannot recall hearing of any president having done so since, perhaps, Andrew Johnson.
d. This may well have been a statement of professional ethics. Yates felt she could not ethically defend the law. She believed that Trump signed the EO because he wanted to ban Muslims. (Please don’t go off on this, I am not endorsing her view or taking a position on why the president signed the EO). Even the AG has to follow her bar’s ethical rules.
e. In sum. This is crazy. Yates probably should have resigned. Trump should not have fired her, but demanded her resignation. More to the point, if Trump had consulted with her prior to issuing the EO, he could have avoided all of these problems. I am sure that something could have been crafted that met everyone’s needs. This is as much about bureaucratic incompetence as it is about anything.
In 2b. “improper” in this context is not a legal concept. It is a political concept which has no place in the decision-making of a government employee, especially a senior one.
What she said, ultimately, was that the EO didn’t feel right to her. She did not challenge it on legal grounds at all – it had been approved by the DOJ Office of Legal Counsel as to “legality and form” before being issued.
This is not a difference of opinion. It is simply somebody who refused to do her job because it made her feel bad.
She was fired in order to save time in appointing a replacement – which was immediate. And to make the point that a government employee, drawing a salary, has to follow orders, as long as they are legal orders.
Yes Adam, it is crazy. The attack on the firing is crazy.
The Supreme Court has ruled that the President can remove people directly under him.
So what is the real issue? That Yates should have resigned? Perhaps she should have thought of that before walking out in front of the cameras and making a statement that she would not support or defend the order. Perhaps she should have thought about resigning before making the public declaration that she would not do what the President asked.
You do make the point that this is about “bureaucratic incompetence,” and I agree. I think your reasoning fails following that statement because you seem to say that the “bureaucratic incompetence” should have continued over some weird dance of “I quit. You can’t quit, you’re fired. You can’t fire me, I quit!”
Whether you agree with the firing on the merits, Trump legally cut through all of the bureaucracy. It was quick, simple and to the point. Moreover, the firing was something that most people can relate to: do what your boss says or you will be terminated.
If you want to end the bureaucracy, you take steps to end it, not play within it.