On why the comparison of Attorney General Yates firing to the ‘Saturday Night Massacre’ is sloppy, unhelpful, and perhaps, destructive.
I spent much of yesterday working on some excellent executive order content for you nice folks, but then I woke up to this1)Kudos to West Coast publishing for catching the late headline. Also, to my friends at the RJ, please cover the news! The stadium doesn’t matter that much right now.:
Well I suppose I can’t, not address that..
Do me a kind a favor and wait patiently for our expose of the executive order. This is a bit timely.
I suspect the previous year we spent building our civics foundation here on the legal blog will prove well worth it!
But back to current events, though.
There is no historical comparison for President Trump firing Attorney General Yates last evening. My friends in the press nearly, in real time, reached for the comparison to President Nixon’s ‘Saturday Night Massacre.’
And yes, I certainly understand how: both involved the firing of an attorney general2)even that is specious/I’m trying.
Today I will elucidate why Attorney General Yates’ firing last night is nothing at all like what occurred with President Nixon and the Watergate investigation. The differences are important.
Hopefully, President Bush will be so kind to join us later on for a little perspective.
1. All the Actors Participating in the ‘Saturday Night Massacre’ Behaved in a Predictable Manner; Monday Night Was Anything But Rational
For comparison’s sake, here’s the same paper’s front page3)No wonder he hated Kissinger so much..can’t even let Dick have this front page to himself after the so called ‘Saturday Night Massacre’
Briefly, a recap of the events as they were told to me as a child4)What kind of bedtime stories did you hear growing up?:
Recall the Democratic Party was broken into at the Watergate Hotel during the 1972 election. After Nixon won the election, there was suspicion from the Senate that he would appoint a partisan attorney general that would not investigate/enforce the law with respect to the Watergate scandal.
The Senate agreed to confirm Mr. Nixon’s choice for Attorney General, Elliot Richardson so long as he agreed to appoint a special prosecutor, former Ohio senator Archibald Cox5)Larry O’ on the Msnbc last night described Mr. Cox has Mr. Nixon’s most fierce GOP critic. I trust Larry on that kind of thing..
Mr. Cox, as special prosecutor, issued a subpoena asking for the infamous taped conversations of President Nixon. This is where the trouble starts. But please notice what President Nixon does next is both predictable and rational (along with immoral and unethical).
These tapes were going to (and did) bring down President Nixon. What to do then? Delay, Delay!! Mr. Cox made it apparent he would not compromise justice for the President (this was when Mr. Cox rejected a deal on Friday, 19 October 1973).
Next play for Nixon? Fire the man! But wait, the President doesn’t have the authority to fire a special prosecutor appointed by the Attorney General…only the Attorney General can do that. As you can guess, Attorney General Elliot6)Yes it was me that corrected the misspellings in wiki. Richardson declined to disobey the law, and resigned in pretest. Deputy Attorney General William Ruckelshaus followed suit.
Guess who was third in line? Our old friend Robert Bork! This might surprise you, but Mr. Bork was perfectly willing to fire Mr. Cox upon the request of President Nixon and did just that.
Thus, the headline above7)more.
Let’s go through the actor’s behavior, one-by-one, to quickly to emphasize how normal this behavior was in context.
President Nixon, with a basic understanding of decision theory, acted in a reasonable manner (again, still illegal, immoral, unethical). Notice it wasn’t until he was backed into a corner that he had to make such an extraordinary move. It was obvious he was aware of the risk, but at that point that the Special Prosecutor made it known he wasn’t unethical, it made sense to shove his chips to the middle. He was toast.
Now take the lawyers. Attorney General Richardson was presented with an illegal, immoral request from the President. Know that your public servant attorneys swear their allegiance to “the Constitution,” not to any individual person.
Mr. Richardson and Mr. Ruckelshaus did what you would expect of moral men. If you swear an oath to defend the constitution, we expect you to keep it.
It’s very possible you will soon see a current-day corollary as U.S. Attorneys resign en mass when asked to defend a religious ban in court.8)Just a guess
You can question their tactics, but again, this is reasonable behavior. By resigning in this manner, they upheld the respect their office without compromising their own morality.
This was a tough situation navigated as best they could. And I think history remembers Mr. Richardson and Mr. Ruckelshaus well because of it.
2. Let’s Talk About Why None of This Has Anything To Do With Monday Night and Attorney General Yates
Nothing that happened Monday night is neither reasonable nor rational. There is no reasonable explanation for it occurring when it did, nor one for why.
President Trump issued an executive order over the weekend restricting the travel of foreign nationals of seven Muslim-majority countries while temporarily banning refugees from America for 120 days.9)Please just take this as a straightforward presentation of facts as it is only intended to be. More on this soon.
President Trump signed said executive order without even consulting with the entire executive branch, which includes the attorney general. Ms. Yates, the interim Attorney General until President Trump’s choice is confirmed, would have been an excellent person to discuss a travel ban with as she would be the person primarily responsible with enforcing the law.
As I will show you in a couple of days, that executive order is prima facie constitutional (but not in application! I listened to Washington state’s Attorney General describe his suit in the Western District of WA and he was very persuasive. I would not be shocked if he won.) because the authority for the President to ban people based on national origin was specifically delegated by statute by the Congress. The Trump people are not wrong about this.
They, however, could not have been more sloppy in implementation; there are press accounts that Sectaries Mattis and Kelly were not even informed of the Order beforehand. Why wouldn’t they be informed? There’s no good reason.
This is where Ms. Yates hops aboard our tale. A quick word about Ms. Yates as I have seen a few too many members of the press dismiss her public service in a gendered way that I didn’t like.
Just know that this woman isn’t some bleeding heart lefty. She’s a Georgian with proud southern roots that was introduced to the Senate by Republican (certainly no moderates) Senators Perdue and Isakson.
She has been working in public service since the late 1980s, including assisting in the prosecution of the Atlanta terrorist bombing case in 1996.10)The fact that we put these terrorist jerks on trial in a fair, compassionate, human way is an essential element to what makes America great. People like Ms. Yates who work to ensure the law is enforced fairly/justly are underappreciated, in my humble opinion. I’m going to keep pointing this out.
Now, President Trump had more time to prepare his cabinet/government than any other leader in the world gets with that 2 month transition. Of the relationships you need rock-solid for security sake on day 1, the Attorney General must be high on the list. (Recall, there’s only one person in the government permitted to sign those Fisa warrants, the attorney general.)11)If the NSA or similar agency needs a warrant to search, but does not want to make the request public, they go to a secret court called a Fisa court. We just don’t have time for this today, and frankly, to push the blame of Fisa nonsense on Mr. Trump would be unreasonable. This thing goes back years..
I assume when he requested Ms. Yates to stay on as acting Attorney General, that he understood what that meant. Sure, the Attorney General serves at the pleasure of the president, but again, she swears an oath to “Protect and defend the Constitution.” Moreover, the Attorney General is the primary law enforcement official in the country. Evaluation of the laws is just as much of her job as enforcement. This job is different than White House Counsel, for example.
If a very serious woman like this, tells us from the position of Attorney General12)As in, she is a serious enough person to understand the significance that enforcing the travel ban executive order is illegal, we need to take that advice seriously.
Ms. Yates assertion of her opinion is certainly reasonable. I’m not trying to pile on13)Thus, the wordy defense. But I do take issue with form.
Did you see this letter she sent out to all DOJ lawyers yesterday that prompted this reaction? I will excerpt a large portion as you should.
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.(emphasis added)
What? What?? What???
I don’t think I’m permitted to use that dog more than once per post..
I agree in substance, but in not in tone, with Ms. Yates’ first paragraph regarding the Office of Legal Counsel. The OLC should not be relied upon to tell us if laws are constitutional, this was well established under President Bush.14)Here’s looking at you, Jay. You are never going to live that down. Not as long as I’m writing sentences on the internet. In case you’re curious, while in law school at UNLV we openly discussed if you should be tried for war crimes. But I suppose you need to be disbarred first..The fact the UNLV Law Admin even let him in the building is something I’m still not ok with. Shame on you all. Let’s put a pin in that for now; it’s not relevant to our discussion.
I take very serious issue with the bolded sentences above. This is a very serious lawyer that published a very unserious memo from a position of importance. This is not ok.
If the executive order is unconstitutional, why didn’t she tell us why? “Wise and unjust” was a question of fact for the voters, with respect. I can’t honestly discern from the bolded sentences in the second paragraph if she opposes the law because it is immoral or because it is illegal? There’s a huge difference, and the ambiguity does us all harm.
If Attorney General Yates thought a good faith defense of the travel ban by the Justice Department violated the constitution, it was mandatory she say so and explain! Then resign in protest, like her colleagues of the Nixon years.
The wrong way to protest this executive order is by publishing a letter declaring you won’t follow the law. For gosh sakes, the Attorney General can’t say things like that in a civil society. This is much bigger than one lawyer.15)I try to avoid agreeing with Alan Dershowitz publicly, but he is one of the few who is getting this part right. Assume this is the only thing I agree with him about.
So yes, Ms. Yates’ actions were not preferable. But again, this isn’t that uncommon. The Justice Department often will declare a public stance; recently the GOP in Congress had to hire special counsel (in this case “special defense counsel”) to defend their marriage discrimination law. This isn’t all that difficult or uncommon. At least I used to think.
So then why the Trump people overreact so starkly? Again, where is the rationality?
Jonathan Alter called the administration’s moves Monday night an “unforced error,” to borrow from sports. That’s exactly right, well put Jonathan!
Agreed, Ms. Yates letter was inflammatory. But you’re the President! Among the many powers of the executive, s/he may hire special defense counsel! Imagine how much better Mr. Trump would have come off in the press today if he announced that he “respects Ms. Yates public service, but believes in his law and will appoint special defense counsel to defend it in court.” Done. Move on.
Also, I would have never written any of this! It was entirely unnecessary to fire Attorney General Yates.
The worst part of the administration’s behavior, though, was that abhorrent statement they released explaining the firing.
After Acting Attorney General Sally Yates says DOJ won't defend Trump travel ban, White House says he fired her and blasts her in statement pic.twitter.com/E6YyRXabcO
— Mark Berman (@markberman) January 31, 2017
16)No relation. “Betrayed?” “very weak on illegal immigration?” Why would someone release that kind of language in the name of our President?
This type of behavior not ok. By anyone involved. The thing about norms, is there is a reason they came into being.
I hope you see now by calling Monday night’s events similar to the ‘Saturday Night Massacre,’ you are doing a great disservice by not accounting for the completely unnecessary risk the President and the Attorney General subjected us all to.
Each person is responsible for his/her own behavior in the Trump era. No excuses.
And please, please stop crying17)This is not a reference to Ms. Yates! Not even close..
To be fair, there is a growing chorus of defense for Ms. Yates’ actions. The arguments are worth considering.
You Miss President Bush More Than You Realize
Before I go, instead of teasing the ‘Saturday Night Massacre’ folks, I wanted to provide a better historical example.
Let’s hop in our trusty, way-back machine and go all the way back to…2004.
President Bush’s domestic surveillance program had just been declared unconstutional by the Supreme Court, but hey, that’s not going to stop a proud sophist like his White House Counsel Alberto Gonzales!
The Attorney General at the time, John Ashcroft was very sick staying in the intensive care unit of George Washington University Hospital. “Well since John can’t make it into the office,” I assume Alberto thought, “I’ll just bring the reauth to him!”
Attorney General Ashcroft’s Deputy was…you aren’t going to believe it…James Comey!18)The man is this generation’s Bob Gates. Seemingly untouchable!
Comey19)apparently tipped off by Mr. Ashcroft’s chief of staff, through his wife, furious that Alberto was going to get Mr. Ashcroft to sign an extension of the wiretap program under duress, rushed to the hospital and beat Andrew Card (President Bush’s chief of staff) and Alberto by a few minutes.
Then, in one of the most dramatic civil rights disputes to ever take place at a hospital bedside, Mr. Ashcroft refused to sign the reauthorization of the program! The Washington Post will help us with the rest of the details
Card and Gonzales arrived a few minutes later, with Gonzales holding an envelope that contained the executive order for the program. Comey said that, after listening to their entreaties, Ashcroft rebuffed the White House aides.
“He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me,” Comey said. Then, he said, Ashcroft added: “But that doesn’t matter, because I’m not the attorney general. There is the attorney general,” and pointed at Comey, who was appointed acting attorney general when Ashcroft fell ill.
Later, Card ordered an 11 p.m. meeting at the White House. But Comey said he told Card that he would not go on his own, pulling then-Solicitor General Theodore Olson from a dinner party to serve as witness to anything Card or Gonzales told him. “After the conduct I had just witnessed, I would not meet with him without a witness present,” Comey testified. “He replied, ‘What conduct? We were just there to wish him well.’ “…
“I couldn’t stay if the administration was going to engage in conduct that the Department of Justice had said had no legal basis,” he said. “I just simply couldn’t stay.” Comey testified he was going to be joined in a mass resignation by some of the nation’s top law enforcement officers: Ashcroft, Mueller, Ayres and Comey’s own chief of staff.
Ayres persuaded Comey to delay his resignation, Comey testified. “Mr. Ashcroft’s chief of staff asked me something that meant a great deal to him, and that is that I not resign until Mr. Ashcroft was well enough to resign with me,” he said.
The threat became moot after an Oval Office meeting March 12 with Bush, Comey said. After meeting separately with Comey and Mueller, Bush gave his support to making changes in the program, Comey testified. The administration has never disclosed what those changes were.
As shocking as this story is, it’s the less discussed, ending I want to emphasize today.20)Don’t worry, we got plenty of time for Mr. Comey. I surely didn’t miss that, no sir.
President Bush took ownership of the problem, called a meeting of principals, and resolved this issue quietly!
As these types of highly sensitive, national security matters should be handled, and this could have exploded into a huge, historical ‘Saturday Night Massacre’ type mess. But my guess is, you’ve likely never heard this story,21)Unless you are a super politico nerd like me. We have feelings too! speaking to President Bush’s character.
President Bush could have chosen to overpower his Justice Department, prompting a mass resignation. But I like to think he kept the long game in mind.
If career-minded, conservative folks like Mr. Comey are threatening to resign, there’s probably a good reason.
Men like Jim Comey don’t make threats for fun is my point.
One last point that’s bit unsettling. I talked to someone today that wasn’t taking this event seriously enough.
In turn, I’m here to present what the President’s primary advisor told the the Daily Beast last August. “I’m a Leninist…Lenin…wanted to destroy the state, and that’s my goal too. I want to bring everything crashing down, and destroy all of today’s establishment.”
Question, if President Obama informed the public that the executive editor of Vox dot com was now going to attend every ‘Principals Meeting’ of the National Security Council while the Chairman of the Joint Chiefs/Director of National Intelligence will only attend “as needed,” how would you have responded?22)Please note Karl Rove was specifically excluded from these meetings by President Bush.
Question two, if Valarie Jarrett quoted Vladimir Lenin lovingly in the press, how much longer would she have worked at the White House?
Senator Collins agrees.
#Protip from a political vet: You should much prefer your strategist be fans of John over Vladimir..
Let’s all just hope that’s unrelated!
Thanks for reading!
Footnotes [ + ]
|1.||↑||Kudos to West Coast publishing for catching the late headline. Also, to my friends at the RJ, please cover the news! The stadium doesn’t matter that much right now.|
|2.||↑||even that is specious/I’m trying|
|3.||↑||No wonder he hated Kissinger so much..can’t even let Dick have this front page to himself|
|4.||↑||What kind of bedtime stories did you hear growing up?|
|5.||↑||Larry O’ on the Msnbc last night described Mr. Cox has Mr. Nixon’s most fierce GOP critic. I trust Larry on that kind of thing.|
|6.||↑||Yes it was me that corrected the misspellings in wiki.|
|8.||↑||Just a guess|
|9.||↑||Please just take this as a straightforward presentation of facts as it is only intended to be. More on this soon.|
|10.||↑||The fact that we put these terrorist jerks on trial in a fair, compassionate, human way is an essential element to what makes America great. People like Ms. Yates who work to ensure the law is enforced fairly/justly are underappreciated, in my humble opinion. I’m going to keep pointing this out.|
|11.||↑||If the NSA or similar agency needs a warrant to search, but does not want to make the request public, they go to a secret court called a Fisa court. We just don’t have time for this today, and frankly, to push the blame of Fisa nonsense on Mr. Trump would be unreasonable. This thing goes back years..|
|12.||↑||As in, she is a serious enough person to understand the significance|
|13.||↑||Thus, the wordy defense|
|14.||↑||Here’s looking at you, Jay. You are never going to live that down. Not as long as I’m writing sentences on the internet. In case you’re curious, while in law school at UNLV we openly discussed if you should be tried for war crimes. But I suppose you need to be disbarred first..The fact the UNLV Law Admin even let him in the building is something I’m still not ok with. Shame on you all.|
|15.||↑||I try to avoid agreeing with Alan Dershowitz publicly, but he is one of the few who is getting this part right. Assume this is the only thing I agree with him about.|
|17.||↑||This is not a reference to Ms. Yates! Not even close|
|18.||↑||The man is this generation’s Bob Gates. Seemingly untouchable!|
|19.||↑||apparently tipped off by Mr. Ashcroft’s chief of staff, through his wife|
|20.||↑||Don’t worry, we got plenty of time for Mr. Comey. I surely didn’t miss that, no sir.|
|21.||↑||Unless you are a super politico nerd like me. We have feelings too!|
|22.||↑||Please note Karl Rove was specifically excluded from these meetings by President Bush.|