President Donald J. Trump fired Acting Attorney General Sally Yates, who had refused to defend his executive order on immigration this week. In a letter, she instructed the entire Department of Justice to not defend the order, noting that she wasn’t convinced that it was legal, nor did she feel that the policy behind it was “wise or just.” That’s not her job, but we’ll get that in a second.
The Left said that Trump’s firing of Yates is reminiscent of the Nixon White House’s decision to fire special prosecutor Archibald Cox, who was investigating the nature of the Watergate break-in. Attorney General Elliot L. Richardson and Deputy Attorney General Ruckelshaus refused to carry out the order and resigned. Cox would later be fired by then-Solicitor General Robert Bork.
MSNBC had former Nixon White House Counsel John Dean to discuss if this was a similar situation, where the former government lawyer said no.
“It really isn’t the same,” Dean said of the firings. “It’s very Nixonian in style, but not an exact parallel in situations,” he added. Dean said that the bungled way the executive order was rolled out was not in line with the Nixon White House, which he said was “smooth running.” He did note that the press release, which he described as “nasty,” on the firing of Yates was in line with Nixon.
“The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States,” read the White House statement. “This order was approved as to form and legality by the Department of Justice Office of Legal Counsel. Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration.”
Dean added that Nixon might have had similar thoughts concerning people with whom he disagreed, but was always kept in check by his staff. He later said that both men have authoritarian personalities, though Nixon’s was only discovered after the tapes were released, but added that we’re seeing what these types of administrations do: “they fire people, they don’t want to have anybody disagree with them, they’re narcissistic, and they want to draw a lot of attention to themself.”
Okay—before we go off the rails here: Nixon did something wrong. Trump did not. His executive order was legal. It was constitutional. And it was lawful. As a result, the attorney general has to defend the law, regardless of how he or she feels about the policy. It’s not their job to discern whether a policy is just or wise. Moreover, it’s the job of the attorney general to follow the Constitution and render impartial legal advice to the president. Yates’ letter was a political opinion, not a legal one.
Lawyers Jonathan Turley and Alan Dershowitz chimed in on the firing of Yates. Turley noted that the president was well within his right to fire her, and that her legal reasoning went against established protocol at the Justice Department. Using motivations from the 2016 campaign trail, which Yates cited in her letter, has no standing in rendering an opinion about the legality of an executive order. He also said that on a constitutional basis, the law favors Trump.
Dershowitz was more aggressive; adding that he felt Yates was trying to be a “holdover hero” in defying the president. Yates served as deputy attorney general under the Obama administration and remained at the DOJ, while Sen. Jeff Sessions’ (R-AL) nomination to become attorney general was being vetted by the U.S. Senate. It's been held up by Democrats, but will soon face a confirmation vote. Democrats have used every procedural delay in the book to slow confirmation of Trump’s nominees. He also expanded his view in an op-ed with The Hill on how this isn’t like the Saturday Night Massacre because Nixon tried to fire people who wanted to prosecute him. If Yates had a serious problem defending a lawful and constitutional order from the executive, she should have resigned:
She also referred to its possibly being unconstitutional and unlawful. Had she stuck to the latter two criteria she would have been on more solid ground, although perhaps wrong on the merits. But by interjecting issues of policy and directing the Justice Department not to defend any aspect of the order, she overstepped her bounds.
I, too, disagree, with the policy underlying the order, but I don’t immediately assume that any policy with which I disagree is automatically unconstitutional or unlawful.
The president has considerable constitutional authority to control entry into the United States by non-citizens and non-residents. Congress, too, has some degree of control over our borders. The precise relationship between presidential and congressional power has never been defined by the Supreme Court. A responsible attorney general would seek to analyze these complex issues before jumping into the political fire with a blanket refusal to defend any part of the order.
Sally Yates did what she thought was right. In my view she was wrong. She should neither be lionized nor accused of betrayal. Nor should President Trump’s critics, and I include myself among them, accuse him of doing anything even remotely close to President Nixon’s infamous “Saturday Night Massacre.” Nixon fired the very officials who were seeking to prosecute him. That constituted a personal and unethical conflict of interest. President Trump fired Yates over policy differences. It may have been unwise for him to do so, but it was clearly within his authority.
Claiming executive privilege on tapes, like Nixon did, because it would lead to impeachment is not within the president’s authority.