President Trump’s decision to fire Sally Yates, the acting U.S. Attorney General on Monday night jarred the legal community, and added more fuel to a tumultuous debate over the new President’s use of executive power.
The firing came hours after Yates told Justice Department lawyers she could not defend Trump’s recent executive order barring certain immigrants. The order had come under intense criticism and led to chaotic scenes at America’s airports, but Yates’ declaration was still extraordinary given it’s the job of the Attorney General to defend such directives.
Trump’s decision to fire Yates led some to recall the so-called “Saturday Night Massacre” in 1973 when a U.S. Attorney General and his deputy resigned rather than obey President Nixon’s order to fire a special prosecutor.
Monday Night Massacre:
Trump fires Sally Yates, Acting AG who refused to defend his indefensible #MuslimBan. History will remember her well.— EJ Dionne (@EJDionne) January 31, 2017
Some declared Yates had taken a principled stand and warned of a rapid erosion of law under President Trump.
it took nixon five years to get to the sat nite massacre, took trump just ten days. Yates was within her rights https://t.co/QezlCtmy4u …
— Norm Eisen (#TryingTrump out now!) (@NormEisen) January 31, 2017
But law professor Jonathan Adler took a more nuanced stance, pointing out that Justice Department lawyers appeared to have told Yates the executive order was lawful (even if they may have disagreed with its contents.) He also suggested Yates should have followed the example of Nixon’s Attorney General:
This is quite significant. I am not aware of any instance in which the Justice Department has refused to defend a presumptively lawful executive action on this basis … Some have asked what I think AAG Yates should have done, given her views of the EO. My answer is simple: Resign, and then publicly explain her reasons for doing so.
Meanwhile, legal reporters are raising the question of what Yates’ firing will mean for national security since the Attorney General must sign off on important surveillance orders, and since the person Trump ordered to succeed her has not been confirmed by the Senate.
UPDATE: A couple former intel lawyers tell me the acting AG WILL have authority for surveillance orders, despite not being Senate confirmed. https://t.co/3Jku8CfGei
— Dustin Volz (@dnvolz) January 31, 2017
Overall, though, the response to the firing on legal blogs and social media is one of concern for what this means for the rule-of-law under Trump, and the integrity of the Constitution.
In his Twitter feed, law professor Josh Blackman provided an excellent break down of the bigger picture. He shared the view of Adler that Trump was within his rights to fire Yates, but expresses concern about the incident’s long term fallout. Here are some key tweets:
16/ I genuinely fear that Yates foolish last stand will poison Trump's already low estimation of lawyers. This will backfire quickly
— Josh Blackman (@JoshMBlackman) January 31, 2017
9/ Putting aside the mechanics https://t.co/Qn62F9ZuAb the language about how Yates "betrayed" DOJ is chilling.
— Josh Blackman (@JoshMBlackman) January 31, 2017
Finally, some asked what the future will hold for Yates, suggesting the firing will be a blemish on her career. Above-the-Law editor Elie Mystal disagreed, expressing the view of many that Yates can leave with her head held high:
Umm… she's kept her honor, she will have no trouble landing another job. https://t.co/DDN5L6sYnr
— Elie Mystal (@ElieNYC) January 31, 2017
To replace Yates as Acting Attorney General, Trump appointed the U.S. Attorney for Eastern Virginia, Dana Boente in her place.
And lest you think the week’s legal drama is over, Trump announced this morning he would name his pick for the Supreme Court on Tuesday.
This post has been corrected to state Nixon’s “Saturday Night Massacre” occurred in 1973 not 1968.
