Travel order and firing of acting Atty. Gen. Sally Yates roils Justice Department

Feb. 1, 2017 3 AM PT

Reporting from Washington — President Trump’s decision late Monday to fire acting Atty. Gen. Sally Yates over her decision to not defend his immigration order has split the Justice Department, with some lawyers hailing the longtime federal prosecutor for taking a courageous stand and others calling it an act of political grandstanding.

The firing left Justice Department officials grappling with the legal and political fallout, and anxious over the agency’s future in a Trump administration.

Trump’s travel and refugee ban, rolled out haphazardly on Friday, sparked chaos and protests at the nation’s airports over the weekend as customs officials detained dozens of refugees and legal permanent residents shocked to land in a country that was now seeking to turn them away. The executive order temporarily halted all refugees and barred entry into the U.S. of people from seven majority-Muslim countries.

Yates was blindsided by the order. By Monday night, she had issued her own, taking the extraordinary step of telling Justice Department attorneys to cease defending the ban in lawsuits brought by affected individuals and civil rights groups.

Former Atty. Gen. Loretta Lynch issued a statement saying Yates had “displayed the fierce intellect, unshakable integrity and deep commitment to the rule of law” in standing up to Trump.

“Her courageous leadership embodies the highest traditions of the Department of Justice, whose first duty is always to the American people, and to the Constitution that protects our rights and safeguards our liberties,” said Lynch, echoing the comments of several Justice Department lawyers interviewed on condition of anonymity.

But other lawyers, including former Obama administration appointees and current Justice Department officials, questioned her order’s legal underpinnings and described it as a gesture designed to allow her to leave office on a high note.

Yates and Lynch had been criticized by Democrats and former Justice Department officials for not halting FBI Director James B. Comey in October from issuing a letter to Congress announcing that his agents were reviewing new emails potentially related to the investigation of Hillary Clinton’s use of a private email server while secretary of State.

Democrats blamed Clinton’s electoral defeat, in part, on the negative attention generated by the letter and a subsequent one clearing her of wrongdoing. The Justice Department lawyers said they wondered whether Yates was hoping to cleanse herself from the stigma associated with the Comey matter.

In particular, some lawyers were perplexed that Yates didn’t take other, less confrontational actions. They said she could have written Trump a letter outlining her concerns or “slow walked” the process during her last few days in office, or even resigned. They saw little point in her issuing an order that would quickly be reversed, which it was.

“There is no doubt she disagreed with the executive order. But that is kind of a policy question. And most lawyers here believe it was defensible in court. That is the standard,” said a Justice Department official who requested anonymity to candidly discuss the orders. “And this makes you wonder about the motivation.”

Legal experts agreed that Yates did not seem to properly justify her actions in her statement. Jack Goldsmith, a respected former top Justice Department official who resigned his post in 2004 after sparring with the George W. Bush White House about the legality of torture and other matters, wrote in a blog that Yates’ justification for not defending the executive order was “extraordinarily weak.”

Yates declined to comment through a former department spokeswoman, who called the allegations that Yates, a career prosecutor, had acted for political reasons “preposterous.”

Yates, 56, served as U.S. attorney in Atlanta when she was tapped by President Obama to be the deputy attorney general. She agreed to serve as acting attorney general under Trump to help “shepherd” the institution through the transition, a former aide said.

The first week had gone relatively well, according to the aide and another Justice Department official, with Yates even deferring actions on legal matters so they could be handled by the new administration.

On Friday, however, Yates was caught off guard by Trump’s order, and her lawyers began scrambling to fend off lawsuits seeking to block its enforcement. She did not believe she could defer a decision on defending the order in court and concluded it was likely a veiled attempt to enact the “Muslim ban” promised by Trump during the contentious campaign.

In particular, she told aides she was perturbed by statements made by Trump and one of his surrogates, former New York Mayor Rudolph W. Giuliani, that indicated that their real intent was to block immigration by Muslims, which would be against the law.

In her own order, Yates wrote that it was her duty to ensure the department took positions consistent “with this institution’s solemn obligation to always seek justice and stand for what is right.” In light of that standard, she wrote, she was “not convinced the executive order is lawful.”

The firing sparked immediate comparisons to the Watergate-era “Saturday Night Massacre,” a defining chapter in the Justice Department’s history when Atty. Gen. Elliot Richardson and Deputy Atty. Gen. William Ruckelshaus resigned rather than follow orders by President Nixon to fire special prosecutor Archibald Cox, who was investigating Watergate misdeeds.

As in the case of her predecessors, Yates lost her job while standing up for principle in response to circumstances foisted upon her, said Richard Ben-Veniste, a lawyer who worked with Cox at the time.

“Obviously they are very different circumstances,” Ben-Veniste said. “But they share the similarity of having highly respected officials of the Department of Justice take principled stands at the pain of being discharged from their office.”

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