The Yates mutiny
The President's firing of Acting Attorney General Sally Yates over her refusal to defend Trump's executive order on immigration in the various courts where where it is being challenged has generated the expected buzz, and headlines. Trump is reading straight from Richard Nixon's Watergate playbook, it's an assault on democracy, freedom, conscience, and probably apple pie, too.
First, the statement seems to indicate that the executive order was reviewed by the Justice Department’s Office of Legal Counsel, which apparently concluded that the executive order was lawful. Second, Yates does not claim that she cannot defend the executive order because it is unconstitutional or because the Justice Department would be unable to offer good-faith arguments in defense of its legality. To the contrary, Yates claims she is ordering the Justice Department not to defend the executive order because it is not “wise or just.” This is quite significant. I am not aware of any instance in which the Justice Department has refused to defend a presumptively lawful executive action on this basis.
What she should have done instead (were Yates intent on following both the historicla script and keeping true to her conscience), is resign:
...and then publicly explain her reasons for doing so. If Yates believes that the President’s various comments about a “Muslim ban” undermine her ability to defend (or oversee the defense of) an executive action that OLC concluded (and she does not dispute) is “lawful on its face,” she should have stepped down as Acting Attorney General.
There is some precedent for this sort of thing. Recall the “Saturday Night Massacre,” when Attorney General Eliot Richardson and Deputy Attorney General William Ruckleshaus resigned rather than fire special prosecutor Archibald Cox at President Nixon’s insistence. If AAG Yates believes she is being asked to do something that violates her conscience — as she apparently does — this is the model she should have followed.
But that move, proper as it would have been, particularly for an Obama holdover, would have deprived Yates of the headlines describing her firing -- a powerful word that will make for excellent Democratic fundraising copy.
Trump had every right, and reason, to dismiss Yates, just as she had every right to oppose his executive order. But if institutions and process mean anything, they insist that staff follow lawfully enacted policy. If they can't, or won't, they have an obligation to resign. No honest person will find fault with that.
What Yates did was mutiny. It diminishes her, her supporters, and the institutions she allegedly sought to defend.