The Rule of Law

Who is Sally Q. Yates?

She is the daughter of a Georgia appellate judge, a magnum cum laude graduate of the Georgia School of Law, the executive editor of the Georgia Law Review, a lawyer with the corporate law firm of King & Spaulding, a lawyer in the U.S. Department of Justice for more than 27 years, the Deputy Attorney General of the United States, and the Acting Attorney General — until yesterday.

On Jan. 27, Pres. Trump issued his executive order, which temporarily suspends the issuance of visas from seven overwhelmingly Muslim-majority countries and indefinitely suspends the entry of Syrian nationals, among other things.  Protests erupted at more than two dozen airports in the United States.  As of the writing of this post, four different federal district judges and magistrate judges have issued stay orders against enforcement of that executive order.

Lawyers for persons covered by this executive order have claimed, as outlined in one of the cases, that it “exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity.”  The executive order is both under-inclusive — it doesn’t affect visas or entry from Saudi Arabia, for example, the home of almost all of the 9/11 attackers — and over-inclusive — it includes everyone from those countries, without regard to their actual life histories.  And Pres. Trump has said that he wants to give priority to Christian refugees.

Sally Yates, then Acting Attorney General, did what she told Sen. Jeff Sessions at her confirmation hearing — she informed other Justice Department attorneys not to enforce this executive order because she did not believe it is lawful.  Specifically, she said: “At present, I am not convinced that the defense of the executive order is consistent with these responsibilities of the Department of Justice, nor am I convinced that the executive order is lawful.”

Within hours, Pres. Trump fired her.  A statement released by the  White House, in extraordinary language, accused her of having “betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States.”  It also claimed that she was “an Obama Administration appointee who is weak on borders and very weak on illegal immigration.”  Although it claimed that the DOJ’s Office of Legal Counsel had vetted the order, it did not note that that review did not include the anti-Muslim statements made by the President on the same day he signed it.

This decision to fire Ms. Yates is exceptionally troubling for those who maintain that the United States is a nation of laws.  The President can nominate an attorney general, but the attorney general is not his personal attorney.  The Attorney General is responsible to “furnish advice and opinions, formal and informal, on legal matters to the President and the Cabinet and to the heads of the executive departments and agencies of the government, as provided by law.”  That does not necessarily mean advice that the President likes.  If the Attorney General believes that a Presidential order is unconstitutional or otherwise unlawful, she or he must be able to provide that advice without fear of punishment.

It is still an open question whether this Administration intends to obey the law.  Last night’s actions are not a good sign.