Trump May Have Been Right to Fire Runaway Attorney General

Sally Yates – Seemingly Overstepped Bounds, Failed to Follow Saturday Night Massacre Precedent
President Donald Trump may have been right to fire Acting Attorney General Sally Yates when she refused, on non-legal grounds, to defend his immigration order, and also refused to follow the precedent set by the “Saturday Night Massacre,” says public interest law professor John Banzhaf, who played a role regarding that Nixon-era event.

Sally Yates

Sally Yates – By U.S. Government (United States Dept. of Justice) [Public domain], via Wikimedia Commons

Other attorneys general have declined to defend the government, but it was almost always because they believed that the action was unconstitutional. Here Yates made no such claim, but rather argues that she alone should decide if the order was “wise or just”; subjective judgments clearly not hers to make.

Then-Attorney General Eric Holder‘s decision, and the similar decisions by many state attorneys general, not to defend the Defense of Marriage Act [DOMA] or laws against same-sex marriages, were based upon their independent legal duty and conclusion that the statutes were unconstitutional.

But Yates seemingly bases her position on a very different ground – whether “any policy choice embodied in an Executive Order is wise or just,” and “to always seek justice and stand for what is right” – and she does not even claim that the order is unconstitutional.

But, especially where an attorney general serves at the pleasure of the president, and her duties include defending law suits against the government, it seems highly inappropriate to shirk this duty by passing her own judgment as to whether the executive’s acts are “wise,” or “just,” or “right,” says Banzhaf.

Those subjective policy judgments are entrusted not to an attorney general but rather to the President, subject of course to being overridden by Congress; not even judges have the legal authority to rule on their own subjective belief whether a governmental action is wise or just or right, he notes.

When then-Attorney General Elliot Richardson determined that he could not follow then-President Richard Nixon’s order to fire Special Prosecutor Archibald Cox because it would violate established Justice Department policy, he resigned; a move most thought was the only honorable thing to do. The same thing happened when the same demand was made to the then-acting Attorney General William Ruckelshaus.

Yates apparently refused to follow this precedent and step down voluntarily when she concluded she could no longer carry out one of her most important functions – representing the government in court. Although she never suggested that the order was unconstitutional, she did say she was not “convinced that the Executive Order is lawful.”

However, lawyers are frequently asked to argue in court in favor of rulings they may think may not be lawful, provided that good faith arguments to the contrary can be made. In this way judges – whose job it is to rule on the legality of actions – can do their job after hearing strong arguments from both sides.

While there may be many arguments that the order is neither wise nor just, the issue for any attorney general is whether or not it is clearly unconstitutional. If not, his or her job is to make the best arguments for it, and thereby help a judge make a correct ruling as to whether or not it is legal, not wise.



About the Author

JOHN F. BANZHAF
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW, Wash, DC 20052, USA (202) 994-7229 // (703) 527-8418 http://banzhaf.net/ jbanzhaf@law.gwu.edu