The case against Sally Yates

As Joe Biden fills out his Cabinet, more attention is drawn to the key role of attorney general and to 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 over the last four years. I always admired the obvious talent and intellect of Yates. But my overall assessment for her changed drastically back when she sparked a momentous battle with the newly inaugurated Donald Trump and thereby created her own legend.

Yates had only a few days left for government service when she became acting attorney general back in January 2017, following the departure for Attorney General Loretta Lynch. A week later, Trump signed an executive order that restricted travel from several Muslim majority countries. Yates then took an unusual step and ordered the Justice Department to refuse to assist the president to carry out the ban as it was.

I was a vocal critic of the travel ban, which had glaring errors such as an absence of provisions for legal residents and green card holders. Those errors were corrected with an amended order. The ban was an issue on which Trump ran on, and he wanted to move in that first week to deliver some of his core promises. However, the order was badly drafted, badly executed, and badly defended. Yates could have worked with the White House to seek changes, which would later occur. But she instead called on a federal agency to refuse to assist the president.

Yates dismissed a review by the Office of Legal Counsel, which found the order to be lawful. Yates did not decline that conclusion and said she was not convinced the order was “wise or just.” But it is not the role of Justice Department officials to decide if a president has taken such “wise or just” action. It is to determine if that action is lawful. If Yates felt the order was not, she could have resigned, like Attorney General Elliot Richardson and his deputy William Ruckelshaus did in the Saturday night massacre under Richard Nixon. She evidently did not want to be known as someone who resigned a few days before she had to leave her role.

Yates foresaw what Trump would have to do and he fired her. This was a brilliant political move by Yates. With just a few days left in her post, she orchestrated her own firing and became a hero to Democrats. It did not matter if former Justice Department officials, even several critics about Trump, doubted whether her action was ethical. Jack Goldsmith, a past assistant attorney general now at Harvard Law School, noted that Yates neither determined the order to be unconstitutional nor cited any basis for refusing to defend it. He said Yates left an effect of “insubordination that invites the president to fire her” over her action.

Yet the media followed that rule cited by the editor in the movie “The Man Who Shot Liberty Valance.” He said, “When the legend becomes fact then print the legend.” So the legend of Yates lives on, and she made sure of it. She was given a speaking role at the Democratic National Convention, as an embodiment of the Justice Department promise to the rule of law. She declared to voters that she was fired for refusing to defend the “shameful and unlawful” travel ban of the president. The issue is that her statement is untrue. She never declared the order as unlawful.

While this order was amended, the travel ban on Muslim countries stayed and was taken to the Supreme Court in 2018. The challengers insisted the changes in the order did not alter the objection to a travel ban on Muslim countries. The Supreme Court upheld it, reversing the Ninth Circuit Court of Appeals. In other words, Yates prevented the Justice Department from allowing the president to enact an order that was found to be lawful, just as her own Office of Legal Counsel staff concluded.

What is most remarkable is not that the travel ban was upheld. It was that Yates never said the order was unlawful and did not leave it to the courts to resolve the issue. This was not her only controversy. Yates signed that application for secret surveillance of Carter Page, which was found to be riddled with errors and based on faulty information. Page has never been charged with a crime. There is no indication Yates made any substantive effort on the basis for the application, which she said she would not have signed if she knew what she does now. She assumed it was legal despite the involvement of an aide from the opposing party.

Yates also showed little concern about the basis for investigating Michael Flynn, another aide to the president of the opposing party. While she said she had a lack of clear memory on the issue, there are links to her raising the potential use of the Logan Act, an unconstitutional law that has never been used to secure a single conviction. Its basis was conversations that Flynn had with Russian diplomats before he was national security adviser. There was nothing unlawful in this. James Comey is also said to have told Barack Obama that these talks appeared legitimate.

However, Yates reportedly went to the White House to raise the alarm and claimed in an interview that “there is certainly a criminal statute” that was raised by the conduct of Flynn. The legend of Yates was created by herself and sustained by the media. Biden can leave a lasting legacy at the Justice Department, but he has to first sever it from its past.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.