Law & the Courts

Distorting Senator Sessions’s Questioning of Sally Yates

Yates at her 2015 confirmation hearing (Image via C-SPAN)
Despite the media narrative, the exchange does not cast Yates in a better light, and it in no way damages Senator Sessions’s candidacy to be attorney general.

If the Left is going to twist every bit of Trump administration news into fiction, who is going to believe them when, inevitably, there actually is something worth raising hell about? The question is worth asking — for about the tenth time this week . . . and it’s only Tuesday! — in light of the fuss Democrats and their media friends are making over a discussion between just-fired acting attorney general Sally Yates and Senator Jeff Sessions, President Trump’s attorney-general nominee, at a 2015 Judiciary Committee hearing.

Yates, of course, has just made the leap from obscurity to the pantheon of progressive victim-heroes. Knowing she was soon going to be out of her very temporary job as acting AG, she seized the opportunity to go out in a blaze of glory with an act of insubordination against Trump’s executive order (EO) blocking the admission of various aliens into the U.S.

Yates is an Obama appointee. Trump’s EO is anathema to the Left, but regardless of what one thinks of the policy it advances, it is lawful. Moreover, even when orders are not lawful, everyone in the Justice Department knows that one’s choice, upon being given a directive from a superior about which one has misgivings, is to carry out the order or resign. Yates instead chose sabotage. She was rightfully canned, and the only question really worth pondering is why President Trump had maintained her in such an important position in the first place.

Naturally, that will not impede the frenetic campaign to fashion The Legend of Sally Yates — before the clock strikes 8:01 this evening, when Trump’s announcement of a Supreme Court pick turns her back into Sally Who?

Toward both that end and the simultaneous Democratic rope-a-dope to derail or at least delay the confirmation of Senator Sessions and other Trump nominees, the Left has leaped on a portion of Yates’s 2015 confirmation hearing (to become Obama’s deputy attorney general) in which she was questioned by Sessions.

Sessions asked Yates, “Do you think the attorney general has a responsibility to say ‘no’ to the president if he asks for something improper?” Elaborating, he pointed out that, before being confirmed as the nation’s chief law-enforcement officer, attorney general Loretta Lynch had said that she supported President Obama’s lawless immigration policies. Sessions added, “A lot of people have defended the Lynch nomination . . . by saying: ‘Well, [the president] appoints somebody who’s going to execute his views. What’s wrong with that?’ But if the views the president wants to execute are unlawful, should the attorney general or the deputy attorney general say ‘no’?”

Yates responded, “Senator, I believe that the attorney general or the deputy attorney general has an obligation to follow the law and the Constitution, and to give their independent legal advice to the president.”

There is nothing remarkable about this. The attorney general (and other Justice Department officials) are obviously supposed to give the president and the administration their best legal advice. In context, what Sessions meant by telling the president “no” was advising the president that a course he wants to pursue is, in the judgment of the attorney general, unlawful. That’s not news. Telling the president “no” in that situation is not insubordination; it is the job.

Executive-branch officials do not have their own independent reservoirs of power; they are delegated to exercise the president’s power.

That is not what Yates did in connection with Trump’s EO. She did not privately tell the president she objected. She directed the executive branch to defy the president by not enforcing his directive. That is lawlessness. As our editorial points out today, executive-branch officials do not have their own independent reservoirs of power; they are delegated to exercise the president’s power. That means their choice is to exercise it as the president directs or honorably resign. Sabotage is not an option.

Nor was Sessions suggesting otherwise. To the contrary, he was emphasizing that the attorney general owes the president his best advice. The question of what should be done if the president declines to take that advice did not come up in the questioning.

Moreover, what Sessions was specifically talking about is a situation in which the president’s proposed course of action is “going to be a violation of the law.” Far from being a violation, Trump’s executive order is firmly grounded in the law. Yates’s has not articulated a legal objection to it — indeed, the EO was reportedly approved by Office of Legal Counsel, the lawyers’ lawyers at DOJ. As our Jeremy Carl observes, Yates offered nothing more than “moral preening” and social-justice-warrior gobbledygook. Her objection is to Trump’s policy. That kind of objection was not addressed in the back-and-forth between Sessions and Yates.

As Sally Yates said in conclusion (my italics): “I do believe that . . . the duty of the attorney general’s office [is] to fairly and impartially evaluate the law and provide the president with impartial legal advice.” On Trump’s EO, Yates failed to provide the president with advice, her objections were not based in law, and her actions contravened her lawful authority. The colloquy in question does not cast her in a better light, and it in no way damages Senator Sessions’s candidacy to be attorney general.

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