Now-former acting attorney general Sally Yates cemented her place in liberal lore Monday by declining to enforce President Trump's travel ban, which opponents believe is unconstitutional and un-American. And to Democrats, Trump's decision to fire her for it is proof that he's an out-of-control despot bent on running over anybody who stands in his way — the law be damned.
But is that really what happened here? The Yates firing is certainly a splashy story — stirring up all kinds of righteous indignation on the American left. But questions have arisen about just how appropriate her defiance was and how big a deal Trump's removal of her was.
After Trump relieved Yates of her post Monday night, ProPublica President Richard Tofel weighed in with some perspective.
Not a constitutional crisis for president to want his order defended. That would come if he defied court ruling that it is illegal.
— Richard Tofel (@dicktofel) January 31, 2017
Meanwhile, over at the Lawfare blog, Jack Goldsmith, a George W. Bush administration counsel and current Harvard law professor, argued that Yates's reasons for defying Trump's travel ban were “weak.”
Goldsmith acknowledges that Trump's executive order banning entrants from seven majority-Muslim countries was hasty and “imprudent” and that Yates is within her rights to make this call. But he says her actual reason for drawing a line in the sand doesn't stand up:
The reasons that Yates then gives for deciding not to defend the EO [executive order] in court are labored and, to me, unconvincing. Most importantly, Yates does not say that she has concluded that the EO is unlawful. Nor does she say that defending the EO in court would be unreasonable.
Yates states at the end of her letter that she is “not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.” This statement summarizes the two major points above. First, she believes the standard for defending the EO is “best view of the law,” not reasonable legality, and she is not convinced the EO is consistent with the best view of the law. But as noted above, the typical standard for the Attorney General to defend an EO of the President is not whether she is convinced of its legality. Rather, the standard is something closer to the idea that she should defend the EO unless she is convinced of its illegality — i.e. she defends if there is a reasonable argument for its legality. Second, Yates believes that defending the EO is inconsistent with her responsibilities to interject a policy analysis about the wisdom and justness of the EO independent of the President. For reasons stated above, I do not believe that either of these arguments are persuasive given her role. Nor are they consistent with what I understand the duties and responsibilities of the Attorney General to be.
Goldsmith concludes that Yates “wrote a letter that appears to depart sharply from the usual criteria that an Attorney General would apply in deciding whether to defend an EO in court. As such, the letter seems like an act of insubordination that invites the President to fire her. Which he did.”
There's one key point here: Despite how her decision is being presented, Yates didn't actually say Trump's executive order isn't legal. She said she is not “convinced that the Executive Order is lawful.” Yet words such as “not lawful, “unlawful” and “illegal” have often been attributed to Yates. And that's a key distinction.
Michael Gerhardt, a constitutional law expert at the University of North Carolina, largely agrees with Goldsmith and Tofel. He said Yates is taking an unusual stance.
“She's not really stating clearly that she thinks it’s unlawful; she's saying, 'I’m not convinced.' " Gerhardt said. “Well, that’s an odd way to formulate something.”
Gerhardt, who has advised Democrats and served on President Bill Clinton's transition team, added that Trump's removal of Yates isn't all that exceptional.
“We’ve had notable dismissals of Cabinet officials in the past, extending all the way to Andrew Jackson — if not before — so it’s at least well-settled law that a president can get rid of a Cabinet member for any reason he sees fit. He's well within his authority to do this,” Gerhardt said.
He added: “There are a lot of people jumping rather fast analogizing this to the Saturday Night Massacre. That unfolded a little differently, and the dismissals were different than these conditions. It had to do with arguable misconduct [by Richard Nixon].”
Peter Smith, a constitutional law expert at George Washington University, differs with Goldsmith somewhat, saying Trump's executive order may have warranted an extraordinary response. Smith said the available legal defenses of the executive order were weak and run up against “the trifecta of federal statutes, treaties and the Constitution.”
“A federal statute prohibits certain immigration decisions based on national origin; the United States has approved treaties requiring certain treatment of refugees; and the Constitution prohibits government action that is designed to burden members of one religious group (and to provide preferential treatment of members of a different religious group)," Smith noted.
Smith said that “intuitions about the attorney general's obligations tend to turn on whose ox is being gored.”
And that's certainly a big takeaway here. The temptation on the left is to view things like what Yates did as heroic and Trump's response as petty and heavy-handed. In the face of what one side believes to be a menace — and especially religious discrimination, which is what Democrats see Trump's executive order as — any kind of resistance will be cheered.
But this is a complex legal situation — and one that invites plenty of debate.