An Incomplete Transfer Of Power

Sally Yates. Photo courtesy the U.S. Department of Labor.

Just two weeks ago (though it may seem much longer) America underwent its quadrennial exercise of self-congratulation over the peaceful transfer of power from one presidential administration to the next.

But this time was different, because the transfer of power was neither as complete nor as peaceful as usual.

I don’t care much about the scattered incidents of property damage perpetrated by a small cadre of nihilists. They like to borrow attention from larger movements for their own incoherent causes. Most of the meaningful demonstrations, from the huge Women’s March on Washington (and many other cities) to last weekend’s protests at international airports, produced neither blood nor wreckage. Whether you consider them “peaceful” might depend on whether you had to push through the throngs in order to catch a flight or get home from work.

Freedom can be messy sometimes. My speech might offend your sensibilities. Your protest march might delay my dinner. Opinions are sharply divided and emotions are running high, so in the bigger scheme of things it is good to have these demonstrations. In the short term it vents the pressure of boiling feelings; in the longer term it gives people a reason to reflect on exactly what they are protesting against or demonstrating for.

These are the freedoms we have as individual citizens. However, these are not the freedoms of an officer of the government serving in an official capacity. If the phrase “transfer of power” means anything at all, it means that once the oath of office is administered, the people who served the departing administration transfer their good faith to the incoming administration. They are not serving the new president personally; they are serving the nation through its government. When the official in question is part of the executive branch, she or he owes a responsibility to the office of the presidency, not just the individual who currently occupies it.

Which brings us to former acting Attorney General Sally Yates. Yates, an Obama administration holdover, took on the task of running the Justice Department after former Attorney General Loretta Lynch, and every other Senate-confirmed senior official at headquarters, resigned at the new administration’s behest. Yates’ position was destined to be a short-term gig that would last only until Senate Democrats wasted their allotted amount of time and Trump’s nominee, Sen. Jeff Sessions, was confirmed.

But Yates found herself deeply troubled by Trump’s executive order restricting immigration one week ago. A botched rollout amid conflicting messages from the White House created an opening for opponents to go to court on behalf of detainees. It fell to the Justice Department to represent the administration’s position.

Despite some dispute about the timing, by Monday the Office of Legal Counsel had inarguably reviewed the executive order and found it “lawful on its face and properly drafted,” in Yates’ own words. But in Yates’ view, the OLC’s approval was not sufficient. On Monday, she ordered government lawyers not to defend the executive order.

Yates said she was “not convinced” that the order “is wise or just.” In that case, she had every right to resign from the administration (as she reportedly considered). But she had no right to order Justice Department lawyers not to do their jobs and defend an executive order that the department itself had concluded was in conformance with the law. It is one thing to decline to serve an administration with which one disagrees; it is another to undermine it while occupying one of its senior executive posts, even temporarily. Yates used her position not to effect a transfer of power, but to try to thwart it for as long as she could.

It turned out to be not very long. She was fired and replaced within hours, and her successor promptly countermanded her order.

Any lawyer in private practice who treated a client the way Yates treated the administration she then served would be subject to a malpractice suit and professional discipline. Losing her position was the least she could expect, and indeed, unnamed sources told The Wall Street Journal that Yates knew her order would likely cost her the job.

Of course, there was no shortage of Trump opponents to hail Yates as a hero. Senate Democratic Leader Chuck Schumer called her defiance “a brave act and a right act,” which might have been true if the Constitution called upon the Justice Department to maintain an independent national policy on immigration. It doesn’t.

There were also comparisons to the “Saturday Night Massacre” of 1973, in which President Richard Nixon removed both his attorney general and deputy attorney general for refusing to fire Archibald Cox, who was investigating the Watergate cover-up perpetrated by Nixon’s own White House. There is not the remotest resemblance between refusing to personally carry out a president’s order and resigning (as Attorney General Elliot Richardson and his deputy, William Ruckelshaus, did) and deliberately trying to thwart the executive branch of which you are a part (as Yates did). That’s not a transfer of power; it is an abuse of power.

Yates rationalized that it was her job to see Trump’s executive order in a larger context, including the statements of White House staffers and “surrogates.” She was wrong there, too. From a legal perspective, to the debatable degree that those statements are at all relevant, it would be the job of opposing lawyers to make that argument and the job of the courts to finally determine the propriety of the president’s order. From a practical perspective, assuming Trump’s order is found to be legal, the final judges will be us – the voters who will weigh in on this administration’s performance about 45 months from now.

Until then we have every right and reason to expect officials at all levels who served the former administration to faithfully serve the new one, or if they can’t, to resign honorably and join the punditry or the protest line.