The Attorney General of the United States swears an oath to support and defend the Constitution of the United States, not an oath of loyalty to the president. This is as it should be. We aspire to live by the rule of law, not the rule of any man or woman. The distinction has provided opportunities for heroics — a term which sounds cinematic but often means simply people doing their job under difficult circumstances.
Elliot Richardson and William Ruckelshaus were heroes — they resigned rather than obey an unlawful order from a notoriously vengeful president. John Ashcroft — not a likely candidate for civil rights hero — defied White House Counsel Alberto Gonzalez from his sickbed, refusing to re-authorize a domestic spying program. There have surely been other acts of defiance we don't know about, and many more regrettable failures to act.
Yesterday President Donald Trump fired Acting Attorney General Sally Yates, who had instructed the attorneys of the Department of Justice not to defend President Trump's recent and controversial Executive Order restricting entry by travelers from specified countries. Acting Attorney General Yates did not assert that the Executive Order is unconstitutional. Her criticism was much more ambiguous:
My role is different from that of the Office of Legal Counsel (OLC), which, through administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted. Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just.
Similarly, in litigation, DOJ Civil Division lawyers are charged with advancing reasonable legal arguments that can be made supporting an Executive Order. But my role as leader of this institution is different and broader. My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.
What does this mean? One interpretation — offered, for instance, by Jonathan Adler — is that Yates believed that the Executive Order was unjust and unwise but not unconstitutional. There's another plausible interpretation — the reference to "statements made by an administration or its surrogates" could mean that Yates is contemplating whether the Order is unconstitutional because even if it doesn't target Muslims unlawfully as drafted, the Trump Administration's actual intent was to target Muslims. But even if that's what Acting Attorney General Yates meant, she didn't act like it. She didn't forthrightly identify the potentially unconstitutional part of the Order, she didn't articulate what she needed to learn to make a final determination of whether it was constitutionality, and she didn't offer a schedule or methodology. Rather, she just suggested that somebody had to convince her, somehow, of something. If her defiance was rooted in the constitution, she was vague and ambiguous about it at exactly the time that demanded the most clarity to her superiors and to her nation. She didn't resign — she maintained her stance and instructed her subordinates to follow it until President Trump fired her.
Is Sally Yates a hero? Was she right?
I think she's a very imperfect hero. She was absolutely right to stand up and articulate what she believed. If she believed the Executive Order was unjust, she was right to do something about it. The question is what. Resigning rather than being a part of implementation of an unjust order would be completely appropriate and admirable. Refusing to implement an unconstitutional order and waiting to be fired would be completely appropriate and admirable. But that's not what she did. She refused to follow an order — and in fact directed subordinates not to follow it — because she thought it was unjust and unwise. That's different than thinking it was unlawful. She has an obligation to refuse to do unlawful things, but she has no right to refuse to follow orders because she disagrees with the policy behind them. She publicly asserted that the order might be unconstitutional, but didn't explain how or suggest a method or schedule to resolve the question. She didn't use clarity to promote and defend the rule of law. She was right to stand up for justice, but wrong to confuse and obscure the role of the Attorney General.
Everyone wants a hero in dark times. Many people see Trump — and especially the people who work for Trump — as a grave threat to our rights. I certainly do. We want people with power to stand up to him effectively in defense of those rights, and have so far been disappointed. Sally Yates is now being celebrated as a hero by many. But her heroism is rooted in cinema, not rights. We admire her (correctly) for standing up for what we think is right, but we ought not applaud defiance that could undermine the very rule of law we want to protect from the Trump Administration. Our true enduring hero is the rule of law and equality before it. It must survive the transitory figures that attack or defend it. We cannot protect it by undermining it.
Last 5 posts by Ken White
- No, The Grand Junction Daily Sentinel Shouldn't Sue Over "Fake News" - February 20th, 2017
- Lawsplainer: The Eleventh Circuit Protects Doctors' Right To Ask About Guns - February 17th, 2017
- Eleventh Circuit Revisits Florida Law Banning Doctors From Asking About Guns, And I Can't Even - February 16th, 2017
- Erdoğan and the European View of Free Speech - February 10th, 2017
- Still Annoying After All These Years: A Petty Government Story - February 9th, 2017