With the appointment of California Attorney General Xavier Becerra as Secretary of the Department of Health and Human Services, the list of suspected front runners is narrowing for the Attorney General. One name remains at the top: former Associate Attorney General Sally Yates. Yates’ appointment would be one of the most controversial for Biden and would likely lead to an intense confirmation battle over her stalemate with President Donald Trump at the start of his term, as well as her role in the Russian investigation. In a strange way, Yates’ controversy could be just what both President Trump and President-elect Joe Biden need when looking for a foundation for self-forgiveness.
The attorney general’s short list includes some notable and less controversial figures such as Judge Merrick Garland, former Senator Doug Jones, and former Homeland Security Secretary Jeh Johnson. However, Sally Yates is one of the brightest political activists in Washington. In one of the most cynical and successful calculations in history, she went from relative obscurity to legendary status. She developed her own fire in Trump’s hands – a virtual act of canonization for the media and many liberals.
When Trump was inaugurated, Yates only had a few days in government. After the resignation of Attorney General Loretta Lynch, she became Acting Attorney General in January 2017. Yates was instrumental in signing the secret surveillance of Trump employee Carter Page during the Obama administration and had urged the investigation of the new National Security Advisor Michael Flynn. Both investigations into possible Russian collusion were found to be unfounded, and Yates recently said that if she had known then what she knows now, she would not have approved the surveillance.
Yates had just become attorney general when she was given the golden opportunity. Trump was about to sign his travel ban and had sent the draft to the Department of Justice’s Office of Legal Counsel, an office that normally respects the legality of policies and orders. The OLC career staff had determined that the order was legal and was Trump’s jurisdiction. However, Yates quickly sent an unprecedented order to the entire department not to assist the White House in arranging the executive branch. The move delighted commentators and media representatives who had long accused Trump of religious and racist bigotry. I was (and am) critical of your actions against the travel ban.
I was one of the Order’s earliest critics for both political and editorial reasons. The order did not address groups such as green card holders and others legally present in the USA (these errors would later be fixed in subsequent orders). However, Yates didn’t say the order was illegal. Rather, she stated that she was not convinced that the order was “wise or just” or “lawful”. It was a bizarre arrangement, as it is not the job of Justice Department attorneys to decide whether a president is “wise or just”. Former judicial officer and Harvard professor Jack Goldsmith pointed out that Yates has not ruled the immigration ordinance unconstitutional nor has given a basis for refusing to defend it. Accordingly, he said, Yates left the impression of a “disobedience that invites the President to dismiss her”.
Of course, if Yates thought the order was morally or legally wrong, Yates could have resigned, along with Attorney General Elliot Richardson and Assistant Attorney General William Ruckelshaus, in President Nixon’s infamous Saturday Night Massacre. Why didn’t she?
The reason seems obvious. A civil servant who resigns a few days before her planned resignation is hardly new. Yates seemed to want to be fired. She knew that such an arrangement would make her resignation virtually inevitable. Since ancient times, the only way to instant glory other than to kill a great tyrant is to fall by the hand. Trump fired Yates and she immediately entered the pantheon of fallen heroes for the left.
While the order was expanded and changed in later replacement orders, the essence of the travel ban remained the same. In fact, the challengers went to the Supreme Court and said that it was essentially the same order with the same underlying discriminatory implications. Yates later stated that she considered the order discriminatory for the same reason. However, the Supreme Court ruled that she was wrong and the OLC was right. The order was constitutional. It was not knocked down, but expanded. That doesn’t mean that sensible people couldn’t disagree on this point. As I said, I was a critic of the Order. However, as I also noted, the existing case law favored Trump, and at best it was a close issue for the courts (not Sally Yates).
It didn’t matter. The legend was made. Speaking at the Democratic National Convention, she stated, “I was fired for refusing to defend Trump’s shameful and illegal Muslim travel ban.” It didn’t matter that the order wasn’t illegal, but was upheld by the Supreme Court.
It seems strange that Biden would even consider adding another controversial nomination to his cabinet while arguing that he wants to heal and unite the country. Yates is clearly an intelligent person and her nomination would be very popular with many on the left. However, the nomination also has an interesting dynamic as it relates to the self-forgiveness controversy. This may not kick off Yates, but it could be an unexpected benefit. This could be a case where two controversies (like two negatives in math) are positive.
There has been a lot of discussion about the possibility that Trump could grant himself a forgiveness before leaving office. While law professors have been asking this question for years, I (prior to the Trump administration) long held the view that a president can, but shouldn’t, grant self-forgiveness. Judge Richard Posner discussed the issue in a commentary and concluded that “from the breadth of constitutional language in general it has been deduced that the president can actually forgive himself”.
Others disagree (including an excellent piece by Michael Luttig today that is the subject of an answer on this blog). Recently, Professor Larry Tribe insisted that Trump constitutionally had no apology, noting that Trump’s joke of shooting someone on Fifth Avenue would “literally make it come true” if it did. (In truth it wouldn’t. Murder is primarily a state crime and is in no way restricted by federal pardon.) While I honestly doubt the courts would ultimately uphold Tribe’s view, we could try to get this one interesting question to solve.
On a political level, a self-forgiveness from Trump could be calmly welcomed by Biden. The president-elect is already receiving increasing calls from the left to come up with proposals ranging from the Supreme Court package to free tuition fees to substantial tax hikes for DC statehood. There are also mounting calls for the persecution of Trump and many in his inner circle. Biden needs this prosecution like another election census. There will continue to be divisions and dissensions in its administration.
Why should Yates help? Because their nomination would be the ultimate argument for Trump to forgive himself. Yates would revive far-right, deep-seated state conspiracies and confirm to many that the same biased anti-Trump officials would be returned to the Justice Department. I would hope Yates wouldn’t act as predatory, but Biden couldn’t pick anyone (other than James Comey) who would raise more for the right.
So anyone could win in a strange way with a Yates endorsement. Yates would create the most dramatic staged death since Romeo and Juliet. Biden would have an excuse not to investigate and prosecute Trump. Trump would reduce his exposure to only state law enforcement agencies while claiming he has no choice but to forgive himself. Everyone had no choice and politics once again triumphs over principle. To paraphrase the train “The Bronx Tale”, “You can ask anyone in my neighborhood and they will just tell you this is just one more [Beltway] History.”
Jonathan Turley is Shapiro Professor of Law of Public Interest at George Washington University. You can find his updates online at JonathanTurley.