AP Photo LAW AND ORDER Why Trump’s Firing of Sally Yates Should Worry You The president had the right to remove the acting attorney general. That doesn’t mean it was a good idea.

Brian Fallon served as director of public affairs for the Department of Justice from 2013 to 2015 and as press secretary to Hillary Clinton's 2016 campaign.

Amid the furor over Donald Trump’s firing of Acting Attorney General Sally Yates for refusing to defend his executive order on immigration, Trump supporters have sought to contain the fallout by suggesting Yates was just an accidental placeholder and her decision was simply an act of political protest.

They are wrong on both counts. In truth, Yates’ ouster should be cause for alarm to anyone who values the Justice Department’s reputation for independence.


To begin with, Yates’ temporary ascendance to the job of attorney general was no fluke. It was Trump’s own transition team that asked her to remain, and with good reason. Over a 27-year career with the Justice Department, spanning both Republican and Democratic administrations, Yates earned a reputation as not only a skilled lawyer, but also as someone who was fiercely independent and above politics. This, in part, explains how she managed to be confirmed to the department’s No. 2 post in a Republican-controlled Senate, receiving 84 votes in 2015.

At her Senate confirmation hearing that year, Yates was asked by, of all people, current Attorney General-designee Jeff Sessions whether she was capable of standing up to the president if she ever believed his actions to be unlawful.

Yates answered unhesitatingly that she would do just that.

“I believe the attorney general or the deputy attorney general has an obligation to the law and the Constitution, and to give their independent legal advice to the president,” Yates said.

Republicans liked Yates’ answer back then. Indeed, during my time at the Justice Department, I watched Republicans repeatedly remind my old boss, Eric Holder, and his successor, Loretta Lynch, that the oath they swore was to the Constitution, not the president who appointed them, as they sought to elicit dissent concerning Obama’s executive orders on immigration and other matters. Now that the president is Trump, they think such dissent from Yates is insubordinate.

These Republicans were right the first time: It is an entirely appropriate exercise of the attorney general’s authority to determine whether, and how, to defend a president’s executive orders in the face of legal challenge. In this case, while Trump’s executive order may avoid explicit mention of banning Muslims or assigning preference to Christian refugees, the order will certainly have that discriminatory effect. Trump’s own public comments reveal it to be discriminatory in its intent, as well. During the campaign, Trump repeatedly and explicitly vowed to impose a ban on Muslims, and just this week, Trump ally Rudy Giuliani divulged on Fox News that he was recently approached by Trump for advice on how to craft a “Muslim ban” legally. Likewise, Trump revealed in an interview with CBN’s David Brody that a separate provision of the order is designed to give preference to Christians.

These admissions will certainly be invoked in court by the ACLU and others as proof that the order violates the Constitution’s establishment clause, which prohibits the government from assigning preference to one religious denomination over another. The comments clearly factored into Yates’ thinking, too, based on her references on Monday to “statements by an administration or it[s] surrogates close in time to the issuance of an Executive order that may bear on the order’s purpose.”

Perhaps Yates could have conveyed all of these concerns in the course of the crafting of the executive order, except that it’s not at all clear that she had the chance to do so because it does not seem she was consulted ahead of time. While Trump aides have suggested the Office of Legal Counsel did sign off, that may well have occurred without Yates’ knowledge and the administration has yet to produce the type of memo usually penned—and often released—by OLC on matters this significant.

Given the chaos surrounding the issuance of the order generally, it seems reasonable to suspect no OLC memo was ever drafted. And in any case, as Yates said in her statement, her considerations are broader than OLC’s—which would not have considered, for instance, comments made by Trump that reflect on the true purpose of the order. Yates is entitled to conduct her own analysis, and she was clearly not convinced of the order’s lawfulness.

In such circumstances, the president does reserve the right to fire an attorney general, but that doesn’t make it advisable. In this case, the White House’s swiftness to remove Yates—and its petty, unpresidential smear of her on the way out as “weak on borders and very weak on illegal immigration”—raises troubling questions about the lengths to which the Trump administration will go to stifle independent legal analysis at the Justice Department. The way in which the Trump administration replaced Yates—by disregarding the line of succession established by an Obama-signed executive order in favor of naming a successor who immediately agreed to defend Trump’s executive order—is cause for concern, too.

The matter of the Justice Department’s independence is particularly salient right now given that, according to multiple reports, at least one current member of the Trump administration and several other Trump associates are currently under federal investigation for potential communications with agents of Russia. If President Trump is not inclined to let his Justice Department operate independently, how can we trust he will not seek to interfere in these investigations that might raise questions about the legitimacy of his election?

Senate Democrats have a duty to press these issues ahead of the looming vote on the confirmation of Sessions to be the next attorney general. They should hold him to the same standard Sessions applied to Yates in her confirmation hearing in 2014 and demand that, as a show of his commitment to the independent work of the Justice Department, Sessions recuse himself from the ongoing investigation pertaining to Trump and Russia—something Sessions has so far refused to do. They should furthermore insist on a more formal outlining by the administration of its legal reasoning in defense of Trump’s executive order. This should include the public release of the OLC memo discussing it, or, if none exists, an acknowledgment of that fact. Republicans like Senate Judiciary Committee chairman Chuck Grassley have demanded the release of such memos in the past when it suited them, even when the matter at issue concerns classified information such as drones. They should not object to the public seeing the legal reasoning behind Trump’s order.

As for Yates, if this week’s events did mark the conclusion of her career at Justice, she can at least depart knowing she was true to herself and to the finest traditions of the institution until the very end. But there’s always the chance her leave from Justice is only temporary. It seems quite likely she will be at the top of any list for attorney general in a future administration—only next time, on a full-time basis.