Sally Yates

On May 13, 2015, the United States Senate voted 84–12 (4 not voting) to confirm Yates as Deputy Attorney General of the United States, the second-highest-ranking position in the Justice Department;[16][17] during her confirmation hearing, when questioned by Senator Jeff Sessions if she would disobey a president's unlawful orders, she responded that she would have an obligation to follow the law and the Constitution, and to give independent legal advice to the president.[18] She served under Attorney General Loretta Lynch, who took office shortly before Yates's confirmation.[10][19]

As Deputy Attorney General, Yates was responsible for the day-to-day operations of the Justice Department, which included approximately 113,000 employees. In 2015, she authored the policy, known as the "Yates memo", prioritizing the prosecution of executives for corporate crimes.[20][21] During the final days of the Obama administration, she oversaw the review of 16,000 petitions for executive clemency, making recommendations to the President.[22]

In January 2017, according to a Justice Department spokesman, Yates accepted a request from the incoming Trump administration to serve as Acting Attorney General, beginning on January 20, 2017, and until the successor for Attorney General Lynch would be confirmed by the United States Senate.[23]

In late January, Yates warned the Trump administration that National Security Advisor Michael T. Flynn had not been truthful about his contacts with Russia related to sanctions and that he was vulnerable to blackmail by Russian intelligence. Yates' warning was not immediately acted upon until The Washington Post publicly reported her warning on February 13, 2017. Flynn resigned within hours.[24][25]

Letter from Sally Yates explaining her view of Executive Order 13769

On January 27, 2017, President Trump signed Executive Order 13769, which restricted travel to the United States from seven Muslim majority countries, among other provisions. While the executive order had been approved as to "form and legality" by the Department of Justice's Legal Counsel,[26] Yates ordered the Justice Department not to defend the order because she believed the order to be unlawful.[27] Her decision came after several federal courts had issued stays on various parts of the order to stop their implementation, and many U.S. Customs and Border Protection agents had acted in defiance of those stays.[28] In a letter to DOJ staff, Yates wrote:

At present, I am not convinced that the defense of the executive order is consistent with these responsibilities of the Department of Justice, nor am I convinced that the executive order is lawful...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. For as long as I am the acting Attorney General, the Department of Justice will not present arguments in defense of th[is] executive order, unless and until I become convinced that it is appropriate to do so.[29]

In a New York Times editorial published on July 28, 2017, Yates expressed concern about Trump's political influence on the Justice Department, writing "President Trump's actions appear aimed at destroying the fundamental independence of the Justice Department. ... Its investigations and prosecutions must be conducted free from any political interference or influence. ... The very foundation of our justice system—the rule of law—depends on it."[30]

A number of legal scholars praised Yates for standing up against what they perceived as an unconstitutional executive order. Some legal experts argued that Yates should have resigned, rather than directing the Justice Department not to defend the executive order, which Cato Institute scholar Josh Blackman called "a textbook case of insubordination".[36] Many also believed the rhetoric of "betrayal" Trump used in his letter was unnecessarily incendiary.[37]

In response to her decision not to defend the order, former Attorney General Eric Holder tweeted that he trusted her judgment.[38]

Senate Minority Leader Chuck Schumer called Yates's actions "a profile in courage. It was a brave act and a right act", while Rep. John Conyers criticized the decision to fire her: "If dedicated government officials deem [Trump's] directives to be unlawful and unconstitutional, he will simply fire them as if government is a reality show."[34]

Law professor Jonathan Adler said, however, that "Yates did not claim she was convinced the order was unlawful, but only that it was not 'wise or just'" and that he was "not aware of any instance in which the Justice Department has refused to defend a presumptively lawful executive action on this basis". Adler argued that she should have resigned and publicly stated her reasons for doing so.[39] It was reported that Yates considered and opted not to resign because she did not want to leave her successor facing the same question.[2][40]

The editors of National Review said her defiance of the executive order was "inappropriate", since Yates was unelected and "every official in the Justice Department knows, if one disagrees with the law one is called upon to apply, or the policy one is bound to enforce, one is free to resign".[41]

The New York Times and others drew comparisons to the 1973 Saturday Night Massacre, during the Watergate scandal, when Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus both resigned after refusing to carry out President Richard Nixon's order to dismiss special prosecutor Archibald Cox.[2] By analogy, some cable networks began calling Yates's dismissal the "Monday Night Massacre".[42][43] However, Watergate investigative journalist Carl Bernstein, speaking on CNN, rejected the comparison. "There's a big difference, because the Saturday Night Massacre was really about firing the attorney general when Nixon was the target of an investigation and was actively obstructing justice", he said. "I think the president is within his rights here to fire the attorney general, that he has that ability."[44]

Representative Jackie Speier nominated Yates for the John F. Kennedy Profile in Courage Award.[45] Georgia State Senator Elena Parent introduced a resolution commending Yates. Democratic Party operatives in Georgia began recruiting Yates to run for Governor of Georgia in the 2018 election.[46]

In March 2017, Yates was invited by the House Intelligence Committee to testify before Congress at a public hearing as part of the committee's "bipartisan, ongoing investigation into the Russian active measures campaign targeting the 2016 U.S. election".[47]

Later the same month, however, The Washington Post published documents indicating that the Trump administration had sought to block her from testifying, including letters from the Justice Department to Yates indicating that the administration considers her possible testimony on the ouster of Flynn to be barred by the presidential communications privilege or deliberative process privilege.[48]

The public hearing at which Yates had been set to testify was canceled by Chairman Devin Nunes, who said through his spokesperson that neither he nor anyone else in the committee had discussed Yates's testimony with the White House.[49] White House Press Secretary Sean Spicer called The Washington Post story "false"; said that "the White House has taken no action to prevent Sally Yates from testifying" and that the White House had given its tacit consent; and added "I hope she testifies."[50][49]

External video

Yates testifying before the U.S. Senate Judiciary Subcommittee on Crime and Terrorism, May 8, 2017, C-SPAN

On May 8, 2017, Yates and James Clapper testified for three hours before the Senate Judiciary's Subcommittee on Crime and Terrorism over the Russian interference in the 2016 U.S. election.[51] Yates said the FBI interviewed then-National Security Advisor Michael T. Flynn on January 24, 2017. Because of that interview she made an "urgent" request to meet with White House Counsel Don McGahn.[52] She met with him on January 26 and again on January 27.[53] She informed McGahn that Flynn was "compromised" and possibly open to blackmail by the Russians. As previously reported, she told McGahn that Flynn had misled Vice President Mike Pence and other administration officials about the nature of his conversation with the Russian ambassador.[54] She said Flynn's "underlying conduct", which she could not describe due to classification, "was problematic in and of itself," adding "(i)t was a whole lot more than one White House official lying to another."[53][52]