By Jerry Dunleavy

https://youtu.be/w8vkNLY1I_M

“How Sally Yates went from unknown bureaucrat to the left’s Katniss Everdeen.” But Slate is by no means alone in this. The Left desperately looking to Young Adult Fiction for inspiration tells you pretty much all you need to know about the sorry state of #TheResistance at the moment. The Left loves to talk about The Right’s #FakeNews problem, but The Left clearly has a #FakeHeroes problem. So yes, Sally Yates is just like Katniss Everdeen, at least in one sense: her heroism is entirely a work of fiction.

“YOU’RE FIRED!”

The Makings of a Fake Hero

The Senate Judiciary Subcommittee on Crime & Terrorism held a hearing on May 8th, 2017 with the purpose of investigating the role of Russian interference in the 2016 presidential election. The hearing featured two witnesses: James Clapper and Sally Yates. After Ted Cruz got former Director of National Intelligence James Clapper to slam a “hypothetical” government employee who had engaged in the use of an unsecured computer and in the sending of classified intelligence to unauthorized persons — a clear reference to Clinton confidante Huma Abedin’s absurdly irresponsible handling of sensitive national security info (similar to the way he had exposed FBI Director James Comey on this issue a week prior) — he then turned his attention to former Acting Attorney General Sally Yates, a former Obama administration holdover. The brief debate between the two seasoned attorneys hinged on Trump’s executive order from back on January 27th, 2017 — referred to variously either as the Travel Ban or the Muslim Ban or simply as “Extreme Vetting”, depending on one’s political persuasion. As the Acting AG right after Trump’s inauguration, Sally Yates would refuse to enforce the executive order and would, disastrously, recommend that those under her direction at the Department of Justice decline to do so as well, leading her to be promptly fired by President Trump and making her an instant (and undeserved) hero of the Left. Famed legal scholar and Harvard professor Alan Dershowitz had this to say about her antics: “Yates is a terrific public servant, but I think she’s made a serious mistake here. This is a holdover heroism. It’s so easy to be a heroine when you’re not appointed by this president and when you’re on the other side.” Holdover Heroism is exactly right. It’s easy to take a position like she did when you know that left-wing grassroots fame is what awaits. What would’ve been truly heroic was resigning her post — instead she tried to abdicate her duties as AG and tried to subvert the chain of command. And she learned that dropping a metaphorical bomb on the Department of Justice is, unsurprisingly, a great way to get fired from the Department of Justice. It’s also a great way to make yourself a “legend”, at least in the eyes of the tens of readers of Slate magazine.

CRUZ vs. YATES:

In Their Own Words

(I transcribed the full transcript of the exchange below, making sure to include links to the specific orders, statutes, letters, & laws that the two referenced throughout their back-and-forth)

TED CRUZ: Is it true that the Constitution vests the executive authority in the President?

SALLY YATES: Yes.

TED CRUZ: And if an Attorney General disagrees with a policy decision of the President — a policy decision that is lawful — does the Attorney General have the authority to direct the Department of Justice to defy the President’s order?

SALLY YATES: I don’t know whether the Attorney General has the authority to do that or not but I don’t think it would be a good idea — and that’s not what I did in this case.

TED CRUZ: Well, are you familiar with 8 U.S.C. Section 1182?

SALLY YATES: Not off the top of my head.

TED CRUZ: No? Well, it is the binding statutory authority for the executive order you refused to implement — and that led to your termination. So it certainly is relevant and not a terribly obscure statute. By the express text of the statute it says, quote, “Whenever the President finds that the entry of any alien or of any class of aliens into the United States would be detrimental to the interests of the United States, he may, by proclamation for such a period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem appropriate.” Would you agree that that is broad statutory authorization?

SALLY YATES: I would and I’m familiar with that. And I’m also familiar with an additional provision of the INA that says, “No person shall receive preference or will be discriminated against in issuance of a visa because of race, nationality, or place of birth.” That, I believe, was promulgated after the statute you just quoted, and that’s been part of the discussion with the courts with respect to the INA — whether this more specific statute trumps the first one that you just described. And my concern was not an INA concern here, but was a constitutional concern — whether or not this executive order here violated the Constitution specifically with the Establishment Clause, and equal protection, and due process.

TED CRUZ: There is no doubt that the arguments you laid out are arguments that we can expect litigants to bring. Partisan litigants who disagree with the policy decision of the President. I would note on January 27th of 2017 the Department of Justice issued an official legal decision — a determination by the Office of Legal Counsel that the executive order, and I’ll quote from the opinion: “The proposed order is approved with respect to form and legality.” That’s a determination from OLC on January 27th that it was legal. Three days later you determined, using your own words, that although OLC had opined on legality, it had not addressed whether it was, quote, “wise or just.”

SALLY YATES: And I also, in that same directive, Senator, said that I was not convinced it was lawful. I also made the point that the office of OLC looks purely at the face of the document and again makes a determination as to whether there is some set of circumstances under which some portion of the EO would be enforceable and would be lawful. They importantly do not look outside the face of the document, and in this particular instance, particularly where we were talking about a fundamental issue of religious freedom, not the interpretation of some arcane statute, but religious freedom — it was appropriate for us to look at the intent behind the President’s actions.

TED CRUZ: Very very very brief question. In the over 200 years of the Department of Justice history, are you aware of any instance in which the Department of Justice has formally approved the legality of a policy and three days later the Attorney General has directed the department not to follow that policy and to defy that policy?

SALLY YATES: I’m not. And I’m also not aware of a situation where an Office of Legal Counsel was advised not to tell the Attorney General about it until after it was over.

TED CRUZ: I would note that that might be the case if there’s reason to suspect partisanship.

The Left would laughably try to turn this exchange into some sort of major coup by Yates over Cruz. A plain reading of the exchange simply doesn’t show Yates “embarrassing” Cruz, and frankly the only embarrassing thing is the Left’s attempt to turn the above discussion of statutes & codes & OLC opinions into some Speaking Truth to Power moment for Sally Yates. #FakeNews indeed. But I suppose it makes sense that a manufactured hero would need some manufactured heroism. In reality, Cruz made it clear that Yates was not acting within the proper limits of her role as Attorney General, but instead was acting in a partisan manner utterly disconnected from her constitutional obligations — and Yates wasn’t really able to combat that. Cruz methodically went through her obligations as an AG, and she defended her actions not like the former chief law enforcement officer in the nation, but rather as an opposition figure might. That might make for okay TV, but it reinforces Cruz’s point that she was motivated by a sense of political opportunism rather than by a sense of duty. (And it must be noted that she has changed her story significantly since January of this year — not exactly the sort of stuff that heroes are typically made of.)

FACT CHECK:

Yates Politicized the AG’s Office,

And She Deserved to Get Fired for It.

That Was True in January & It’s True Today.

The facts regarding Trump’s executive order and the firing of Yates remain essentially the same today as they were back in January, and one need not be a fan of Trump’s initial travel ban (I certainly wasn’t) in order to also conclude that Yates acted extremely inappropriately, doing real damage to her office and indeed to the entire Department of Justice, with her eyes focused not on honoring her oath of office or on her constitutional duties, but rather focused on achieving progressive stardom. She should’ve resigned rather than politicize a critical Cabinet post in the way that she did, and — love him or hate him — Trump was right to give her the boot.

As the editors of National Review would put it: “It is a very simple proposition. Our Constitution vests all executive power — not some of it, all of it — in the president of the United States. Executive-branch officials do not have their own power. They are delegated by the president to execute his power. If they object to the president’s policies, their choice is clear: salute and enforce the president’s directives, or honorably resign. There is no third way.”

Or as Professor Josh Blackman wrote in POLITICO: “If Yates truly felt this way, she should have told the president her conclusions in confidence. If he disagreed, she had one option: resign. Instead, she made herself a political martyr and refused to comply. While this late-night termination may bring to mind President Richard Nixon’s infamous ‘Saturday Night Massacre,’ the analogy is inapt. This is a textbook case of insubordination, and the president was well within his constitutional powers to fire her. Call it the Monday Night Layoff instead.”

Or let’s look at what former Attorney General William Barr said in the Washington Post: “Things reached their nadir when acting attorney general Sally Yates, an Obama holdover with a few days left in office, issued a directive that the Justice Department should not defend the president’s order in court. While an official is always free to resign if she does not agree with, or has doubts about, the legality of a presidential order, Yates had no authority and no conceivable justification for directing the department’s lawyers not to advocate the president’s position in court. Her action was unprecedented and must go down as a serious abuse of office.”

Or it’s worth reading what Jack Goldsmith of Lawfare Blog stated: “Yates is obviously in an extraordinarily difficult position as Acting Attorney General for a President whose policy goals she does not share. She is clearly repulsed by the EO, and wants no part in its enforcement … But if Yates feels this way, she should have resigned … Instead, she wrote a letter that appears to depart sharply from the usual criteria that an Attorney General would apply in deciding whether to defend an EO in court. As such, the letter seems like an act of insubordination that invites the President to fire her. Which he did.”

Or finally I’d recommend reading the cutting post that Senator Cruz himself dropped on Facebook: “After eight long years of a lawless Obama Department of Justice, it is fitting—and sad—that the very last act of the Obama DOJ is for the Acting AG to defy the newly elected President, refuse to enforce the law, and force the President to fire her. Sally Yates now joins the ignominious succession, from Eric Holder to Loretta Lynch, of Attorneys General who put brazen partisan interests above fidelity to law.”

Simply put, when it came to the fulfillment of her duties as Acting Attorney General, Sally Yates was wrong in January and she was wrong today. Her shifting, partisan, grandstanding antics simply reinforce that. Her key role in the Mike Flynn Affair must of course be noted, but it doesn’t excuse her dereliction of duty as Acting Attorney General. Being put in charge of our nation’s law enforcement department and then refusing to enforce the nation’s laws isn’t laudatory or courageous. Katniss would certainly be unimpressed.