Liberals’ reaction to President Trump’s decision to fire acting Attorney General Sally Yates — whose tenure was likely measured in hours or at the most days in any case — has been both predictable and tiresome. They are already calling it the “Monday night massacre,” a clear attempt to compare Trump’s actions with former President Richard Nixon’s infamous “Saturday night massacre,” which signaled the beginning of the end for his ill-fated presidency.
I am not a fan of Trump and I am likewise not a fan of this particular executive order, but something about Trump causes liberals to lose all historical perspective when criticizing him. They simply cannot help themselves from overreaching and overreacting to everything he does, and further demolishing their own credibility in the process. Regardless of how you feel about the executive order, Trump was right to fire Yates, and the only thing I would criticize him for is taking several hours to do it.
Let’s review what actually happened in the Saturday night massacre. Nixon desired to fire independent special prosecutor Archibald Cox, who was causing him political problems during his investigation of potentially criminal activities related to the Watergate break-in — activities that directly implicated key members of Nixon’s staff and presented an existential crisis for Nixon’s entire administration. Nixon had at least a plausible argument that there could be no such thing as a truly independent prosecutor, and that as the president and chief executive he had the inherent power to direct all criminal prosecutions in the United States. Nixon’s Attorney General, Eliot Richardson, disagreed and refused, whereupon he was dismissed by Nixon on the spot. Deputy Attorney General William Ruckelshaus was likewise ordered to dismiss Cox, and he likewise refused and was terminated on the spot. Ultimately, Solicitor General Robert Bork, as acting Attorney General, carried out Nixon’s order.
The reason that the termination of Richardson and Ruckelshaus was a momentous political event is that both men were appointees and political allies of Nixon. Their refusal to follow the orders of the man to whom their political futures were attached, even under the threat of instant termination, was intended to serve as a wake-up call to Nixon himself to reverse his course and — failing that — to the media as to Nixon’s recklessness. It failed to serve the first purpose, but accomplished the second magnificently. Ultimately, the Supreme Court would side decisively with Richardson and Ruckelshaus over Nixon as to the propriety of independent prosecutors, over a strident lone dissent from Justice Antonin Scalia.
Now, if we imagined a hypothetical scenario six months from now in which Trump fired Jeff Sessions and Jared Kushner for refusing to obey one of his orders, then parallels to the “Saturday night massacre” might well be appropriate. That is not, however, what happened. Sally Yates – an Obama appointee with an obvious political motivation to embarrass Trump made what was very obviously a political decision to embarrass the president, not a legal one that she couldn’t in good conscience defend the law. How obvious were Yates’ political motivations? Obvious enough that even Alan Dershowitz, one of the country’s foremost civil libertarian liberals, called it a political decision rather than a legal one.
I personally don’t think the EO is a good idea, for reasons that are not really relevant to this post. However, as a licensed attorney, I would have no qualms defending its legality, if my employer called upon me to do so, confident that I would not run afoul of the Rules of Professional Conduct that pertain to government attorneys in either my home state of Tennessee or any jurisdiction I am aware of. The argument that the EO is illegal or unconstitutional in some way is an extremely thin one. Even if parts of it are on somewhat shaky ground (e.g., the portions pertaining to lawful permanent residents), the order as a whole is clearly not patently illegal or unconstitutional such that refusal to defend it was some sort of ethical duty on Yates’ part.
How clear is this point? Well, for staters, Yates herself did not even claim that the order was unlawful or indefensible. In fact, she implicitly acknowledged that it was, in fact both lawful and defensible in her statement, claiming that “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.” She didn’t refuse to defend the executive order because she thought it was illegal, she refused because it offended her notions of social justice, as she explicitly stated: “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.”
In this case, of course, “stand for what is right” was solely determined by the subjective opinion of an Obama appointee who knew good and well she was on the way out the door anyway, so observers possessed of even a shred of discernment could be forgiven for dismissing Yates’ moral posturing as obvious political theater.
In the face of an acting attorney general who refused to defend an order that she herself acknowledged was legally defensible, what was Trump supposed to do? As a lawyer, if your employer orders you to do something that is not prohibited by the Rules of Professional Conduct, you still always have a choice: you can quit. If you’re not going to quit, you have an ethical duty to represent your client/employer competently and with diligence. Refusal to do so should lead to your termination, and furthermore to possible disciplinary action by the bar. Staying on the job but refusing to advocate for your client is actually one of the more grievous ethical violations a lawyer can commit.
Sally Yates is no hero lawyer; in fact, I would argue that she is guilty of spitting on the ethical canons of the profession that some liberals (who obviously know nothing of the legal profession) are praising her for upholding. Yates’ motives were transparently political and Trump was right to brush her out of the way in short order. The fact that he was forced to do so is not evidence of Trump’s recklessness, it’s evidence of Yates’ desire for 15 minutes of fame.
That is not to say that the Trump administration has covered itself in glory throughout this entire episode. If the report is true that the Trump administration used House Judiciary Committee staffers to draft the executive order, forced them to sign a non-disclosure agreement, and instructed them not to tell Congressional brass what they were doing, that presents a much more serious legal, political and separation-of-powers issue that should be confronted head-on sooner, rather than later. But Trump’s dismissal of Yates’ was not a “massacre” of any kind; rather, it was merely the expeditious dismissal of an obvious political fame-seeker who left Trump with no choice.