“Why didn’t she just resign?” people asked last night on social media. The only answer I can think of is PR. The headline “Defiant acting AG resigns in protest over travel ban” is good for Yates and her sympathizers; the headline “Imperious president fires defiant acting AG who refused to enforce travel ban” is much better. The second one makes it possible for liberals to frame this, stupidly and self-servingly, as a “Monday Night Massacre.” The first one doesn’t. In choosing between two outcomes for her “Swan Lake” routine, Yates chose the one with maximum pathos for an adoring Democratic audience.
What’s surprising to me is how little effort she put into making the highest use of her moment in the spotlight. This morning the left is circulating this old clip of Jeff Sessions, of all people, grilling Yates at her DOJ confirmation hearing a few years ago about what to do when you disagree with an action the president has taken. “If the views a president wants to execute are unlawful,” asked Sessions, “should the attorney general or deputy attorney general say no?” The obvious answer to that question is yes: An officer’s first duty is to the law. But that’s precisely the argument that was missing in Yates’s statement last night. She never claimed that Trump’s travel ban was unconstitutional; she actually admitted that OLC had reviewed the order and found it lawful on its face. As such, she was reduced to objecting that the new policy “isn’t wise and just” — which isn’t her decision to make as AG — and that she hadn’t yet been persuaded that it was lawful, even though … she gave no concrete reasons for doubting its legality. If she really wanted to make life difficult for Trump and martyr herself, this was the moment for her to spell out in detail every argument she could think of for why Trump’s order might violate the Constitution. Instead of a “Trump vs. Yates” thing, make it a “Trump vs. the law” thing. That’s how this would have become a Monday Night Massacre.
She didn’t do that, though — and legal experts across the spectrum are basically unanimous, as far as I can see, in believing that Trump was right to fire her for insubordination. Here’s Jack Goldsmith reminding Yates that so long as there’s a “reasonable” argument that can be made that the order is lawful, the DOJ is duty bound to make it:
First, she believes the standard for defending the EO is “best view of the law,” not reasonable legality, and she is not convinced the EO is consistent with the best view of the law. But as noted above, the typical standard for the Attorney General to defend an EO of the President is not whether she is convinced of its legality. Rather, the standard is something closer to the idea that she should defend the EO unless she is convinced of its illegality–i.e. she defends if there is a reasonable argument for its legality. Second, Yates believes that defending the EO is inconsistent with her responsibilities to interject a policy analysis analysis about the wisdom and justness of the EO independent of the President. For reasons stated above, I do not believe that either of these arguments are persuasive given her role. Nor are they consistent with what I understand the duties and responsibilities of the Attorney General to be.
Benjamin Wittes, who may have written the single most vicious critique of Trump’s travel-ban order this weekend, nonetheless agreed with Goldsmith last night that this was basic insubordination by Yates. It’s one thing to defy a president’s directive because it’s unconstitutional, it’s another to defy it because it’s “unwise.” Jonathan Adler also agreed, insisting, as Wittes did, that the responsible course of action for Yates if she couldn’t defend the ban in good conscience was to resign. Watch below as Alan Dershowitz and Jonathan Turley, both men of the left, come to the same conclusion. An AG doesn’t set policy; the president sets it, and so long as it’s not unlawful on its face, it’s the DOJ’s job to make the best case it can for it. But Yates wanted to be a “holdover hero” to the left, in Dershowtiz’s words, so she distorted her duties to force Trump’s hand in firing her. I hope she enjoys her new contributor role at CNN or MSNBC.