The Corner

Law & the Courts

Yates Should Not Have Stayed in the First Place

I’ll add a word to the Sally Yates kerfluffle.

It’s not all that uncommon for some senior officials, particularly in very active cabinet departments like Justice, to stay around for a few weeks or longer into a new administration. It’s a kind of courtesy to the new administration, because sub-cabinet posts often take some time to fill, and in the meantime the new administration needs bodies to do the work. For example, Bob Work is staying on as deputy secretary of defense while Secretary Mattis chooses his new deputy and under secretaries.

However, and obviously, no one from a departing administration has to do that, and in fact, any such official who feels he can’t in good faith implement the likely new policies of the new administration shouldn’t stay on. It’s wrong for such a person to deliberately put himself in a position where he either has to implement a policy to which he conscientiously objects, or resign and embarrass the new president. The obvious way to avoid that is simply to decline to stay on in the first place.

Anyone who has not been in a coma for the last 18 months had to know that one of the first things Donald Trump was likely to do as president was issue an executive order restricting immigration as part of a policy to protect the United States from terrorist attacks. Whatever flaws there may have been in the construction of the order, its scope was by no means more broad than could have been expected, given Mr. Trump’s quite clear position on the issue.

So the short of it is that, given the beliefs she has now expressed, Sally Yates should have left the Justice Department on the day Donald Trump took office. That she didn’t do so was either a mistake on her part, or as the editors of NR have suggested, a deliberate attempt to create visibility for herself as she went out the door. And it was risible for Yates to claim in her public statement that she could not conscientiously defend in court a legal position she thought unsound, given the Obama administration’s record of litigating a number of extreme legal positions that were likely to be, and were, repudiated by the courts.

In other words, if Yates has a problem defending executive actions that, in the words of her statement, she is not “convinced” are lawful, her scrupulousness on the subject is of very recent origin.

The unfortunate effect of this episode is to undermine one of the few traditions of bipartisan comity that are left in Washington. The next new administration will be much less likely to retain holdovers now, even when the public interest would be served thereby, for fear that it is being set up by officials like Yates.

Jim Talent, as a former U.S. senator from Missouri, chaired the Seapower Subcommittee. He is currently the chairman of the National Leadership Council at the Reagan Institute.