Tags: sally yates | attorney general | president trump

AG Yates Effectively Resigned, Trump Had to Fire Her

AG Yates Effectively Resigned, Trump Had to Fire Her

Sally Quillian Yates testifies July 8, 2015, on Capitol Hill. (Mandel Ngan/AFP/Getty Images)

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Tuesday, 31 January 2017 11:34 AM Current | Bio | Archive

Former Acting Attorney General Sally Yates unquestionably deserved to be fired yesterday. Regardless of what you think about her political views, her analysis of whether the Department of Justice could defend President Trump’s executive order displayed very poor lawyering and did a great disservice to the department and our nation. Her decision shunned an opportunity to help us reach a badly needed, speedy resolution of the legal questions that have been raised about the executive order. Even worse, she politicized the Department of Justice while blatantly refusing to represent — or even allow her department to represent — her client, President Trump. By rejecting her client with no proper basis, she effectively resigned. The president had no choice but to make the implied resignation official by firing her.

The Department of Justice is many things, but first and foremost it is the law firm of the United States. This means it is the chief law enforcement officer of our nation and it is charged with defending the actions of the president and his administration. When the United States is sued, the DOJ is the people’s law firm. Like any lawyer, the Attorney General need not agree with her client or even be certain that she will win in court. The AG’s job is simply to zealously and ethically present the strongest arguments for her client and leave the outcome up to the courts.

Of course, there are circumstances when a lawyer cannot ethically conduct a representation. Like all government officials, the AG is charged with defending the Constitution, so she cannot take a position that is clearly unconstitutional. This does not mean she cannot argue for positions that are of questionable constitutionality. In fact, it is precisely the areas of uncertain constitutionality that go to court, and constitutional law would never develop if borderline issues could not be litigated.

Lawyers also cannot make frivolous claims in court. A lawyer’s duty is spelled out in Rule 3.1 of the American Bar Association’s Model Rules of Professional Conduct: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." The comments to this rule make clear that an "action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail." One just needs a good faith argument, not any certainty that you are correct.

I would have disagreed with Yates, but had respect for her, if she said she could not represent the president because she believed the order was clearly unconstitutional. However, in her statement explaining why the Department of Justice could not defend the order, she never mentioned the Constitution even once. At most she said she was not "convinced that the Executive Order was lawful." This standard is blatantly at odds with the ABA rule discussed above. Even worse, Yates explains that it had not been addressed "whether any policy choice embodied in [the] Executive Order is wise or just." While every American has the right to question the wisdom and justice of a president’s actions, this has no bearing on whether the legality of those actions should be defended.

To be clear, I am not saying Yates should have personally defended a policy that she believed to be unwise or unjust. She certainly had a right to say she felt the order violated her conscience and therefore she could not participate in defending it. The remedy is simple when an administration official cannot support the policies of the administration: resignation. Notwithstanding the fact that I have very different politics, I would have respected her if she resigned trying to follow her conscience. She did not.

Instead, Yates muddled the role of the Department of Justice by creating some new false concept that it can pass judgment on the policies of the president and only defend his actions when it agrees with the underlying policy. Furthermore, her reasoning implies that the DOJ only can defend the lawfulness of an administration’s actions when it is "convinced" that they are lawful. These new views are patently absurd and dangerously political. The president was completely justified in firing her. Indeed, President Trump’s only mistake may have been doing it a day too late.

Dr. Philip J. Rosenthal is the co-founder and president of Fastcase, Inc. (www.fastcase.com) and was the 2016 Republican, Conservative, and Independence Party nominee for Congress in the N.Y. 10th, the district that includes Wall Street and Ground Zero. To read more of his reports — Go Here Now.

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PhilRosenthal
Former Acting Attorney General Sally Yates unquestionably deserved to be fired yesterday. Regardless of what you think about her political views, her analysis of whether the Department of Justice could defend President Trump’s executive order displayed very poor lawyering.
sally yates, attorney general, president trump
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2017-34-31
Tuesday, 31 January 2017 11:34 AM
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