By Barry J. Pollack, 2016–17 NACDL President
“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.”
— Acting U.S. Attorney General, Deputy Attorney General Sally Yates, Letter to Department of Justice employees, Jan. 30, 2017
“[T]he president has removed you from the office of Deputy Attorney General of the United States.”
— John DeStefano, Assistant to the President and Director of Presidential Personnel, Letter to Acting Attorney General Sally Yates, Jan. 30, 2017 at 9:14 p.m.
“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.”
— White House statement, issued Jan. 30, 2017 at 9:16 p.m.
From 1989 through 2010, Sally Yates served in various capacities in the U.S. Attorney’s Office for the Northern District of Georgia, including as acting U.S. attorney under both President George W. Bush and President Barack Obama. In 2010, President Obama appointed her as the U.S. attorney for the Northern District of Georgia and she was confirmed by the Senate. In 2015, President Obama appointed her as deputy attorney general of the United States, the number two position in the Department of Justice. She was confirmed by the Senate, 85–12. President Donald Trump asked her to serve as the acting attorney general when his term started on Jan. 20, 2017. Suffice it to say, her tenure in that position was brief.
On Jan. 27, 2017, President Trump signed an Executive Order temporarily banning immigration from seven Muslim countries. Three days later, Acting Attorney General Yates wrote a remarkable letter to the employees of the Department of Justice.
She acknowledged that the Office of Legal Counsel (within the Department of Justice) had fulfilled its traditional role of reviewing the Executive Order before it was issued and had offered the opinion that this Executive Order was lawful. Acting Attorney General Yates asserted, however, that the role of the OLC is limited to whether an Executive Order “is lawful on its face and properly drafted.” She noted that the OLC does not consider “statements made by an administration or its surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose.” This seemed to be a reference to President Trump’s statements to the Christian Broadcasting Network that Christian refugees should be given priority over Muslim refugees and a statement by Rudolph W. Giuliani that President Trump wanted to enact a “Muslim ban” and was looking for a lawful way to impose one. Acting Attorney General Yates implied she may have concluded based on such statements that, while the Executive Order might appear lawful on its face, there was evidence of an unlawful discriminatory purpose behind it that would render it unlawful.
That the acting attorney general would instruct attorneys at the Department of Justice not to defend an Executive Order that she believed to be unlawful, based on issues not considered by the OLC, is not what is remarkable. However, Acting Attorney General Yates did not stop there. She said the fact that the OLC did not consider all of the factors that might make the Executive Order unlawful was not the only reason for the Department of Justice not to defend it. Indeed, she went so far as to say it was not even the most important reason for the Department of Justice not to defend it. Rather, she said, “importantly, [the OLC did] not address whether any policy choice embedded in the Executive Order is wise or just.” She went on to say that the issue was not merely whether the Executive Order was “legally defensible, but is informed by our best view of what the law is after consideration of all the facts” and that she must ensure “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.” Thus, the acting attorney general made clear she was not merely making a legal determination. She was making a policy determination and even a moral determination.
Sally Yates was not naïve. She plainly contemplated that the position she was taking would likely come at the price of her job. She wrote, “For as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced it is appropriate to do so.” While her job was plainly a temporary one, it was also the most prestigious one she could imagine — the pinnacle of the career of someone who had spent most of her adult life as a federal prosecutor. She seemed to recognize that her stance might well shorten her tenure in that position.
She was right. The reaction was swift. Within hours, she was relieved of her position and accused of “betraying” the Department of Justice by not defending a lawful order of the president.
There are two things worth pointing out here. They are the mirror image of each other. First, Acting Attorney General Yates was not refusing to have the Department of Justice defend the Executive Order merely because she believed it unlawful, but rather because she believed it to be bad policy inconsistent with the best traditions of the Department of Justice. Likewise, the president did not fire her for refusing to defend an Executive Order she believed unlawful. In saying that the president was firing her for refusing to uphold a “legal order,” the president seemed to concede she could rightly refuse to defend what she believed to be an unlawful order. Rather, he was firing her for refusing to defend an Executive Order based on her belief that it was not good policy.
Thus, this article will not address the legality or illegality of the Executive Order, but rather focus on the proper role of the attorney general. Assuming for the sake of argument, the attorney general is asked to defend an order that is lawful (or at least arguably so), but which the attorney general believes to be bad policy unworthy of the Department of Justice, what should she do? Is she a subordinate whose role is loyally to implement the (arguably lawful) wishes of her superior? Or is she an independent actor whose role is to exercise her own judgment as to what is in the best interests of the Department of Justice, the institution she heads?
There has long been a cherished myth that the attorney general and the Department of Justice exercise extraordinary independence from the president they serve. But that largely is a myth. Camelot, for many, was the administration of President John F. Kennedy. And for many, the halcyon glory days of the Department of Justice were the leadership of Attorney General Robert F. Kennedy, the president’s younger brother. Thus, ironically, the high point in Department of Justice history was the period when the attorney general was the least independent of the president.
Yet, when a president acts to assert control over the Department of Justice, the condemnation is swift. The death knell of President Nixon’s presidency may have been the so-called “Saturday Night Massacre,” when President Nixon ordered Attorney General Elliott Richardson to dismiss the special prosecutor he had appointed to investigate Watergate, Archibald Cox. Attorney General Richardson refused and resigned instead. President Nixon then ordered Deputy Attorney General William Ruckelshaus to fire the special prosecutor. He also refused and resigned. Finally, President Nixon ordered Solicitor General Robert Bork, who had become the acting attorney general, to fire Cox. Solicitor General Bork did as instructed. Bork later said that he struggled with the decision and carried out the president’s order with great reluctance. He believed the order lawful, but was torn between further undermining the Department of Justice’s independence and further exacerbating a crisis in government.
On Dec. 7, 2006, shortly after mid-term elections, President George W. Bush fired seven U.S. attorneys. The firing en masse of U.S. attorneys in the middle of a presidential term was unprecedented and led to allegations that the firings were politically motivated. The backlash was such that it contributed to the resignation of numerous high ranking Department of Justice officials, including Attorney General Alberto Gonzalez. An investigation was launched by the Department of Justice Office of the Inspector General. While ultimately, no criminal charges were brought, a special prosecutor was named to determine if crimes were committed, including lying in the course of the OIG investigation.
The myth is powerful. When actions are taken that collide with the myth, the political backlash can be significant. But what does this say about what the proper role of the attorney general should be? The attorney general is appointed by, and serves at the pleasure of, the president. Attorneys general by their nature cannot be truly independent. Nor should they be. They are Executive Branch officials selected by a president to implement that president’s criminal justice agenda, an agenda that presumably the electorate endorsed in voting for that president.
Yet, it seems to me that the attorney general is also, and should be, the guardian of the integrity of the Department of Justice. She should not merely be a loyal soldier whose job is to carry out any order as long as it is at least arguably legally defensible. She can and should have her own views on what is in the best interests of the Department of Justice. A wise president will acknowledge and give deference to the integrity of the Department of Justice. The wise president will do so because a continuity of standards within the Department of Justice that does not shift with each new political administration breeds respect for our criminal justice system. But this is not the only reason. A wise president should also defer to the Department of Justice’s decisions because, as the examples of President Nixon and George W. Bush illustrate, there can be (and in my view should be) a steep political price to be paid by a president who is unwilling to respect the integrity of the Department of Justice.
Members of the National Association of Criminal Defense Lawyers spend our professional lives battling with, and often criticizing, the Department of Justice. Yet, because criminal defense lawyers have the utmost respect for the criminal justice system, no one better appreciates the proper role of the Department of Justice. We recognize that the criminal justice system as a whole suffers when the Department of Justice is perceived to be no different than any other political institution, operating at the whims of a politically elected official. The criminal justice system is at its best when the Department of Justice operates, not as a political organ, but as a body attempting to uphold the highest traditions of the legal profession.
History will be the judge. But I believe history will reflect not only that Sally Yates did not “betray” the Department of Justice, but also that she served it admirably.
About the Author
Barry Pollack is Chair of the White Collar & Internal Investigations Practice at Miller & Chevalier. As a former certified public accountant, a substantial focus of his practice is representing defendants in complex financial matters. He is a Fellow of the American College of Trial Lawyers and of the American Board of Criminal Lawyers.
© 2017, National Association of Criminal Defense Lawyers. All rights reserved. This article originally appeared in The Champion magazine and is reprinted with permission.