Friday, February 03, 2017

"You're Fired!"

So said Donald Trump to Acting Attorney General (AG) Sally Yates last Monday night after she directed the Justice Department not to enforce Pres. Trump's temporary 7-country travel ban. Those on the left are calling her a hero "for defending our constitution" with Mr. Schumer tweeting:
"Firing of Sally Yates underscores how impt it is to have an Attorney General who'll stand up to the WhiteHouse when they violate the law."
"The AG should pledge fidelity to the law & the Constitution not the WhiteHouse. The fact that this admin doesnt understand that is chilling."
Feeding the controversy is a video from C-Span (mis)labeled Sen. Sessions Advising Sally Yates to Disobey Improper Presidential Orders, in which the prospective incoming AG seems to say the same thing.

Mr. Schumer fundamentally misrepresented the AG's oath and the relationship between the AG and the White House; and the video clip is short and out of context.  While Ms. Yates swore to "support and defend the Constitution," she also swore to "well and faithfully discharge the duties of the office" of AG.  When the office of Attorney General (which has since grown into the Justice Department) was created by the Judiciary Act of 1789, the Act specified that the AG had the duty . . .
"to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments."
So rather than "stand up to" or "disobey" the White House when the AG thinks the President may be exceeding his authority, it is the AG's duty to advise the President of same . . . but then prosecute or defend his actions in court - and let the court determine the propriety of the President's actions.

Giving advice and representing a client in court are essentially the work of a law firm, so the Dept. of Justice can be thought of as the President's law firm and the AG as his attorney. As attorneys, they are all subject to the same Cannons of Ethics as other members of the profession.

Do attorneys publicly scold their clients when they think the client may be in violation of the law? Of course not!  The attorney's duty is to protect the client's position.  So as not to prejudice a client should a situation get into court, advice is given privately, and the communication is protected by attorney-client privilege which only the client can waive.  If a client's action can possibly be interpreted as being within the law (or Constitution when talking about government) the attorney is obliged to advance that interpretation.  If an attorney in good conscience feels that he or she cannot continue to represent the client because the client insists on taking a position that the attorney believes is illegal, the attorney is to seek permission to withdraw from the matter so the client can get a new attorney.
Ms. Yates was not fired because she disagreed with the President. She was fired because she refused to do her job. 

In her public letter of defiance to Mr. Trump, Ms. Yates acknowledged that the President's Executive Order had been reviewed and found to be lawful on its face and properly drafted. Rather, she did not agree with Mr. Trump's policy and would not cooperate with advancing it.

In summary, Ms. Yates is no heroine. She usurped the Constitutional authority of the President by substituting her policy preferences for his. She obstructed the President from executing his Constitutionally delegated authority. She also violated her Oath of Office and her obligations as an attorney by publicly airing her disagreement with the president and refusing to advance or defend his actions.  

She had to be fired. 

1 comment:

Rodger Potocki said...

The misconduct of Yates is perhaps an illustration of the biggest problem facing the nation and President Trump; the Beltway beauracracy thinks and acts like it runs the country. This is an entrenched, bloated political beauracracy largely left wing, elected by no one and accountable to no one. Trump, the outsider of outsiders seeks to break its grip and for that they will defy him at every turn. I wish him luck, he will need some of it.