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Comment by msrpotus | Hacker News Reader

Arguably not the first time, if you count Nixon firing his Attorney General and then Deputy Attorney General because they wouldn't fire the Watergate prosecutor.

https://en.wikipedia.org/wiki/Saturday_Night_Massacre

Maybe not the best precedent.

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It is expected that a new President will replace the Attorney General, and not at all uncommon for a new President to replace large portion of the entire DoJ staff. These are political appointments!

Clinton famously fired all 93 U.S. Attorneys when he took office.

As a recent Obama appointee as Deputy, Yates was running on fumes anyway. There was no way she was going to survive past the confirmation of Sessions (or whoever it winds up being). She just decided to go out with some political grandstanding, which I'm sure will help her find a new job.

Speaking of Sessions, his belief is that the Attorney General or the Deputy Attorney General should say "no" when asked to do something that they think is improper. When he questioned Yates during her confirmation hearing he specifically brought this up.

Without reviewing the statements in question, I would guess that he also understands that the Attorney General would likely resign or be fired in such a situation. How else do you imagine that it could possibly work? Do you think that any President would do otherwise? Especially when the acting A.G. was a holdover from a previous administration who was going to be out the door in a couple of days anyway?

That's not really where the consequences stop flowing though. Yes, the President has a right to fire an AG that refuses to implement a President's policy. At the same time, the public may draw certain inferences from that decision. If a big oil company fired its top lawyer for refusing to do something she though violated environmental laws, very reasonable inferences could be made about the leadership.

The US Attorney thing under Clinton is totally different. Nobody made a peep when Trump dismissed the previous AG. It is understood that these political appointees will be replaced as a matter of course. This criticism is in response to him dismissing Yates after asking her to stay on board as acting AG, in response to her exercising her legal judgment.

The criticism also hinges on the rather unbelievably public statement of "betrayal", particularly as that dovetails with Spicer's statement that people should "get with the program or get out". This makes political purge a rather inevitable conclusion, and we aren't even 2 weeks in.

In that field very low level jobs are entirely professional and very high level jobs are entirely political, which makes the oil lawyer analogy invalid. There is no professional insight in a political act and vice versa.

In this specific example she made a highly public political act containing no professional content, naturally that results in firing.

Even low level federal officials have an independent duty not to violate peoples' constitutional rights. They can be held personally liable for violating clearly established constitutional law, and following administration policy is not a defense. Usually the "clearly established" part protects the low level folks, but here you could see CBP line agents being held personally liable for excluding green card holders.

On top of that, the AG has additional obligations as an attorney. An attorney must sign her name to every legal argument she makes to the court. She may not permit a non-attorney to override her legal judgment. Here, the AG did not hold a press release discussing the politics of immigration. She told her subordinates not to make legal arguments defending the order--arguments she would have had to sign her name to. It is absolutely an exercise of professional judgment, not policymaking.

Of course Trump can fire her for any reason. But the public is also entitled to draw reasonable inferences from those actions.

Indeed - there are limits to the "only following orders" defense.

rayiner, I'm curious what you think about Dershowitz' argument that she should have resigned?

http://thehill.com/blogs/pundits-blog/the-administration/317...

I think her legal objection was overbroad, in that there is some subset of the order that could have been defended in good faith. And, in general, the right thing for a lawyer to do when she cannot proceed on ethical grounds is to resign quietly so as to not prejudice the client.

But I think Dershowitz ignores crucial situational context. He says: "A responsible attorney general would seek to analyze these complex issues before jumping into the political fire with a blanket refusal to defend any part of the order." That's fine and good in theory, but this order was implemented over a weekend with apparently no vetting by the DOJ. It was almost certainly unconstitutional as applied in many situations. And Yates would have to send attorneys into courts to defend the order right now. She did not have the luxury of taking time to figure out what "parts of [the order] are legally defensible."

Remember, contemporaneously with firing Yates, the White House did a 180 on one of the key legal interpretations: that the order applied to green card holders. You do not go into court and advance a legal argument, and then tell the court sometime later "oh, now that we have had a chance to actually analyze these complex legal issues, we were wrong on A, B, and C." As a supervising lawyer, Yates could not tell her subordinates "defend the order for now, but we may have to walk some of this stuff back once we figure out what is actually legal."

Dershowitz needs to buy his soul back from Satan and stop supporting the Trump administration.

Also it seems everyone here is ignoring the fact that the WH wrote this ignorant EO without talking to the OLC, has already gone 0/5 in the court challenges thus far. But still fired her for not doing his bidding.

Yate's letter of resignation specificall mentions that the OLC vetted the EO as legal when considered on it's own.

Yates didn't resign. She was fired.

If they're going to be out the door in a couple of days anyway, why do anything?

I wouldn't discount this as saying the right answer because you know it is what you should say. Trumps appointees and integrity don't exactly go together.

It's political grandstanding, nothing more. The DOJ reviewed the executive order and found it legal.

Yates thought it would be better to go out with a bang than a whimper.

I'm sure the DNC will find her a nice comfy job after this.

Do you have a source for that claim? Because everything I read indicates that there was little to no legal review of the executive order. In fact, given that the Attorney General would sign of that review (my understanding at least), it seems extremely unlikely that there was one.

From the analyses i've read, it's inferred from this part of Yates' statement.

She called out her role as different to explain why she doesn't agree with the OLC that it's legal.

My role is different from that of the Office of Legal Counsel (OLC), which, through administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted.

Right, so if I (and many reporters with much experience covering executive orders) read this correctly it was not vetted by the DOJ. It had the correct "formatting" of an executive order, but no check was performed by the OLC on whether it violates standing law.

I mean the DHS and other involved departments were also not consulted, so the idea that the DOJ got to weigh in on the legality is pretty strange/implausble.

Really? I read that as "in case you're wondering why I'm opposing it and the OLC didn't, this is..."

I guess it hinges on the scope of the "form and legality" review. There is an obvious conflict with the law that bans immigration rules based on country of origin. Did the OLC weigh that (or even constitutionality)? Or merely whether the preceding law that Trump's order cites, authorizes him to give the executive order?

I assumed the latter. We'll soon see how the legality of the order plays out in the courts anyway.

https://www.nytimes.com/2017/01/27/opinion/trumps-immigratio...

Edit: Either way, my original blanket assumption that it had just not been looked at by the DOJ at all is clearly false as the OLC is a part of the DOJ.

Clinton replaced the US Attorneys after an election on a staggered schedule as did Reagan. Bush fired many in 2007 for strictly tactical partisan reasons.

http://articles.latimes.com/2007/mar/23/nation/na-talking23

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