If you’re blue and you don’t know how to talk to voters in the sticks
Why don’t you go into hysterics — Puttin’ on the Nix?
Was Donald Trump’s sacking of acting Attorney General Sally Yates the second coming of Richard Nixon? Leading Democrats have begun comparing Yates’ firing to the infamous “Saturday Night Massacre” of 1973, but the comparison is as absurd as it is hyperbolic:
The White House said former Acting Attorney General Sally Yates “betrayed” the Justice Department at the threat of national security. She was ousted late Monday night.
But the Democrats see a more sinister motive, warning that Trump is adopting a tyrannical approach that politicizes the Justice Department and will discourage federal employees from upholding their constitutional duties across all agencies.
The lawmakers are comparing Yates’s firing to President Nixon’s 1973 purge of top officials who defied his wishes at the height of the Watergate scandal –– an episode known as the Saturday Night Massacre.
“President Trump has commenced a course of conduct that is Nixonian in its design and execution and threatens the long-vaunted independence of the Justice Department,” said Rep. John Conyers (Mich.), senior Democratic on the House Judiciary Committee.
That’s a nonsense allegation, a rather lazy analogy for politicians who want to sensationalize complicated issues. Let’s deal with Nixon’s actions first. The Saturday Night Massacre did not involve the firing of an Attorney General, but of special prosecutor Archibald Cox, whose investigation included the president himself. Cox demanded to review Nixon’s White House tapes, which Nixon refused to provide. Nixon demanded that AG Eliot Richardson fire Cox, but Richardson resigned in protest rather than do so, specifically because statutory law made it illegal to remove a special prosecutor except for gross negligence. His deputy AG William Ruckleshaus also resigned rather than fire Cox. Finally, Nixon made Solicitor General Robert Bork — yes, that Robert Bork — acting AG and had Bork fire Cox, which is what actually cost Bork a seat on the Supreme Court and not his supposed ideological extremism. The entire sequence of events took place to obstruct an investigation that included the president.
Now, let’s review what happened with Yates. The Department of Justice acts as an attorney to the administration in lawsuits, and Yates had to do the same with the executive order Trump signed on immigration last Friday. Despite a ruling by the DoJ’s Office of Legal Counsel that the EO was legal, Yates instructed the DoJ not to represent the White House in the lawsuits, because she didn’t think the policy was “just and wise.” Yates is certainly entitled to her opinion, but a refusal to perform the tasks required of her job over a policy dispute is insubordination. Yates should have resigned under these circumstances, but instead chose “preening and grandstanding,” as Senator Tom Cotton put it this morning.
The Saturday Night Massacre was an abuse of power to obstruct justice in a criminal investigation of the president. Yates’ firing was the proper handling of insubordination from a political appointee over policy. Unlike the job of special prosecutor, AGs and other political appointees serve at the pleasure of the president, and not just the president who appointed them.
This, by the way, is the reason that incoming presidents request resignations from all political appointees, and should take care which of those to trust for a transition. Let this be a lesson for all those who follow Trump into the Oval Office.
Update: Politico has an excellent essay by Josh Blackman that covers this in more detail. Of particular note is this statutory responsibility for the DoJ, and the consequences of insubordinate refusal to perform it:
Second, the president did not order his principal officer to violate the law. Yates acknowledged that there was a credible argument that the executive order was constitutional—she said only that she was not convinced by the OLC’s determination that it was lawful, hinting at the president’s campaign-trail calls for a “Muslim ban.” But many laws of dubious constitutionality are routinely, and zealously, defended in court by the Justice Department. Her objection, instead, was that the order was unwise or unjust. These may be valid points for a public citizen to raise, but the attorney general has a statutory duty to “[r]epresent the United States in legal matters generally,” regardless of her personal proclivities. …
Third, and most importantly, the Constitution entirely supported Yates’ removal. Article II imposes on the president the duty to “take care that the laws [are] faithfully executed.” Because he cannot perform this solemn responsibility alone, the Constitution grants him the power to appoint officers—with Senate confirmation—who can carry out his orders. But as Chief Justice Roberts recently observed, “to keep these officers accountable,” the president has a critical trump card: “removing them from office.” Perhaps no chief executive in American history is better prepared for this role than the longtime host of The Apprentice. Because Yates, who served as a principal officer, impeded the president’s duty of faithful execution, her removal was entirely justified.
Exactly. Blackman suggests that this should be called the “Monday Night Layoff” instead of massacre. Perhaps a better name would be Monday Night Political Football.
Update: Via Jeff Dunetz, here’s the picture I really wanted to use for this post: