On Monday, Sally Yates, the acting Attorney General, provided an example of what it means to work honorably for Donald Trump. It comes down to conducting yourself in a way that, in many cases, will result—that you know will result—in not working for him for very long. Trump fired Yates after she refused to deploy Justice Department lawyers in defense of his executive order, issued on Friday, which bans people from seven Muslim-majority countries, and refugees from anywhere in the world, from entering the United States.
Yates was an Obama holdover; she was expected to keep the Justice Department running until the Trump team had been confirmed. She might have seen herself as without a mandate. She might have thought that she had no choice but to support the new President when he signed an order that, though gussied up with a supposed temporary focus on dangerous lands, laid the basis for a religious test on immigration and for institutionalized discrimination against certain legal residents—not to mention the spectre of family division and the possible abandonment of America’s treaty obligations. When lawyers for the American Civil Liberties Union and other groups rushed to court to challenge the executive order, and U.S. Attorneys assembled lawyers to defend it, Yates could have sent federal attorneys into court, if only to go through the motions. She wouldn’t have had to do anything but mourn the harm to ordinary lives and to America’s values. Perhaps no one would have blamed her. Or she could have garnered all the praise she needed, in her circles, by resigning in a muted fashion and then, as a private citizen, writing an op-ed or giving an interview, maybe even an enraged one. Yates did something different: she decided that her job, her official position, not her policy beliefs or even the dictates of her conscience, required that she defy the President.
She did so in a letter which notes that Justice Department lawyers are “charged with advancing reasonable legal arguments that can be made supporting an Executive Order,” but that her role “as leader of this institution is different and broader. My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts.” Those facts, she suggested, included the context and the statements that “an Administration or its surrogates” made at various points about the purpose of this executive order. She was apparently referring to the Muslim ban that Trump promised his supporters during the campaign, and to statements about giving preferential treatment to Christians, which made it clear that the notion that this action wasn’t really about religion or bigotry was a sham. Yates continued, “I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.” And so, as Yates said, "For as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so." It wasn't hard to guess which of those things—staying the acting Attorney General, and becoming convinced of the appropriateness of the order—might change first.
This could all be seen as a particularly dramatic resignation letter. There can’t be any doubt that Yates was going to be out of a job soon after she sent it—this Monday Night Massacre, despite the Nixonian parallels, should come as less of a surprise than the original Saturday-night version, given everything that we already know about Trump. But, by daring Trump to fire her, and for doing her job until and despite his decision to do so, Yates made a powerful statement about the profession of politics itself. A large part of it is the ever more essential struggle to keep careerism and partisanship from blinding one to citizenship and principle. (Paul Ryan and a lot of his colleagues have failed this test.) But there is also, for those who form the moving parts of our constitutional machinery, a question of the duty one has—and to what, and to whom.
Trump has an easy answer: to him. In the White House statement regarding the matter, released on Monday night, he made it clear that he confuses constitutional obligations with personal obedience. “The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States,” it said. “Betrayed” is a shocking word here, particularly given the suggestion that she is indifferent to American lives, suggesting as it does that she ought to be seen as a traitor to her country, rather than a dissenter. (As a prosecutor, she helped win the conviction of Eric Rudolph, the Olympic Park bomber.) And, indeed, the statement goes on to say that Yates “is weak on borders and very weak on illegal immigration.” Does Trump really know that about her? Does he know anything about her, other than that she didn’t listen to him?
His next acting Attorney General, Dana Boente, who had been a U.S. Attorney for the Eastern District of Virginia, and was sworn in late Monday evening, has already begun to defend the ban. And the permanent Attorney General whom Trump has nominated, Senator Jeff Sessions, will be coming along as soon as he gets through the Senate. For Sessions, there won’t be any conflict: he defended a far cruder version of Trump’s ban on the campaign trail, and did so with passion. Indeed, a Washington Post story on Monday portrayed Sessions as the intellectual “Godfather” of the Trump Administration, admired by Steve Bannon and Jared Kushner alike. Sessions has for years been an extreme voice opposing immigration and, for that matter, civil-rights enforcement. In his confirmation hearings, he circumnavigated questions about religious tests by saying that some people had a religion that involved killing—and those people ought to stay out. So far, the Democrats have not been very effective at stopping Sessions. It might be time for them to try harder, with a more concerted offensive that rallies the public and, at the very least, forces whatever moderate Republicans there are left to be honest, if not ashamed, about what they are acquiescing to by confirming him.
The questions that the Democrats need to ask about the executive order should also be central to confirmation hearings for Trump’s Supreme Court nominee. “Deference” is a word that comes up a great deal in Supreme Court decisions on the adjudication of executive power. It is what courts are often asked to extend to the executive on questions of national security. Judges are supposed to trust the President, to an extent, when it comes to assertions that the country is in danger. But what if they can’t trust him, on even a basic level? And what if the President, by deference, understands only deferral to himself? The Yates story is an example of what the Attorney General can do—or what he or she can help the President to destroy.