When you read pundits, journalists, your Angry Left Facebook friends and even a few misguided lawyer proclaiming Sally Yates a hero, trust me, they either don’t know what they are talking about, or they are have allowed bias to make them stupid. The Justice Department’s acting Attorney General who was fired minutes ago for refusing to defend President Trump’s Executive Order regarding Middle East immigration was not acting heroically. She was acting as a partisan, political operative, and by doing so, breached her duties an attorney as well as the District of Columbia Rules of Professional Conduct.
And I do know what I am talking about.
Yates was a holdover from the Obama administration, but to an ethical lawyer, that wouldn’t have mattered. Her client hadn’t changed; it is the United States of America. Neither had her professional obligations. Her client was still the government of the United States, and she was still duty bound to defend its laws, as determined by the legislature and the executive, the President of the United States. Under the Rules of Professional Conduct of the jurisdiction in which she practices, the District of Columbia (the Rule is 1.13) Yates had but one ethical option if she determined that her client wanted to engage in conduct she deemed illegal, repugnant, or unwise. Having made her concerns known, she could resign (Rule 1.16) , and quietly. She is duty bound not to harm her client during the representation (Rule 1.3, of which the District has an especially tough version), nor make public statements, or statements she has reason to believe will be made public, that breach her duty of loyalty. In defiance of all of that, tonight Yates stated, in a letter to her department’s lawyers,
“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.”
The only ethical conclusion of that statement is “therefore I am withdrawing.” Yates said that her decision not to defend the order included questions not only about the order’s lawfulness, but also whether it was a “wise or just” policy. That’s not her job. Lawyers are not permitted to substitute their judgement for their clients.
She was fired, and should have been. She should also be the subject of am ethics inquiry. This has nothing to do with the merits of Trump’s order. Former Harvard professor (and legal ethics prof) Alan Dershowitz, hardly a GOP flack, said tonight that Yates’ decision wasn’t legal, but political. Exactly. As a lawyer, she should have made her position clear from a legal perspective to the President, and then either followed his directive or quit. Her rogue announcement contradicted a finding by the Justice Department’s Office of Legal Counsel, which approved the executive order “with respect to form and legality.” Nor did her outrageous grandstanding require courage. She was not going to keep her job anyway, so she decided to abuse the trust of the President to encourage partisan Trump-haters to hoot and applaud for an act of legal ethics defiance. (Ethics rules don’t apply when Donald Trump is involved, haven’t you heard?)
Yates is also a hypocrite. The Holder Justice Department, of which she was a part, defended multiple Executive Orders by President Obama that were legally dubious, and other actions as well. That Justice Department was one of the most disgracefully partisan within memory, a neat trick, since we have had a couple of decades of unethically partisan Justice Departments. Yates showed her pedigree tonight. She used her position as an attorney–the highest one there is—for her client, the United States, to undermine her client’s objectives, publicly and to her client’s detriment. The Trump administration has called this a betrayal.
That’s exactly what it is.
(More here..)
Ethics Alarms 
Heck, I’ll leave the first comment. As predicted, Facebook is awash with people ignorantly saying that they admire Yates’ stand on principle. First, it isn’t principle: she’s playing partisan politics, thus abusing her position. But worse than that, if you admire a lawyer for turning on her client for seeking a result she doesn’t believe in, then you are similarly saying that you would admire a criminal defense lawyer who announced that her client was guilty, or a plaintiff’s attorney in a wrongful death suit who announces that his client was just seeking deep pockets, and the lawyer doesn’t really think the defendant should be found liable. If you applaud this, then you don’t believe that clients should be able to get the best representation. Lawyers use their skills to advocate the client’s position, not their own..If they can’t in good conscience develop a legitimate case for the client’s position, then they 1) are not very skilled lawyers, in all likelihood, and 2) need to quit the representation. Glenn Reynold on Instapundit just wrote that if Yates honestly believed that the EO was unconstitutional, she should refuse the defend it, and wait to be fired. He’s 100% wrong. She can believe what she wants, but the question is whether she can legitimately defend the law as her client wants.. She can, and she could, but if she can’t and won’t, then she needs to resign, not wait to be removed..
If you can’t tell, I’m pretty annoyed by this episode. Comparisons with the Nixon firing of Archibald Cox is an ignorant cheap shot. Nixon was obstructing justice, firing an independent counsel appointed to investigate HIM. The AGs who opposed his ordered action in fact resigned, as they should have. That’s not what happened here at all. The President handed down an Executive Order approved by the Justice department. There was nothing clearly illegal about it, and the disputes are for courts, not lawyers, to settle.
This is proof of what I’ve been pointing out for 8 years. The Obama Justice department was acting as an arm of the Democratic Party, not as the legal firm for the United States public. Yates is a disgrace, and she should be disciplined. Dershowitz, good liberal that he is, kindly called her action a “mistake” because he knows that a deliberate act like this would be a major ethics breach. But it was deliberate.
I assume that the people who admire her stand on principle also admired Kim Davis, the Kentucky clerk of court who refused to issue marriage licenses to gay couples?
Yates is worse.
Because Yates is a lawyer, and more is demanded of her due to her profession.
I’m too much of a consequentialist to agree with this.
Agreed she is no hero. She got what she deserved.
Nope. Most clear thinking people with a shred of honesty and ethics thought Kim Davis was a disgrace and should have been removed from office. The only difference is that Davis was the county clerk of a small Kentucky county whose family had been in local politics for years. Davis ran that office as if it were her own little fiefdom. She should have followed the law or she should have resigned. Period.
jvb
As much as I hated the thought of Trump winning, it is proving necessary to further expose just how utterly corrupt and unethical the majority of Democrats are. Just went and looked at the major news outlets and all of them seem to think it is just great how she disgraced herself and her department. Unbelievable. Once each one of these pieces of shit is identified they need to be put on notice not to seek public office ever again. No sense of duty, no putting the country before yourself, she not only decides to not to do her job but actually directs the whole department of justice to follow suit. I expect the media to be reactionary and hysterical to anything Trump does but democrats who hold office? They have a responsibility to act like professionals and do their fucking jobs for the American people.
If this complete meltdown by the democrats continues they will have zero chance to recover from this. When everything becomes a crisis nothing will be.
What an unbelievable piece of human garbage.
Wait until Trump REALLY does something out there… no one will care that the media is right this time.
Sad state of affairs
I really don’t think that’s how that works. This is a very early humiliation for Trump, and will likely weaken him in the future. His approval rating is already unprecedentedly low, and I don’t see it going up as his presidency continues. I think people will care.
She surely didn’t take this step lightly? Yes, she should be struck off and that should be the end of her career. Then she can be a martyr as presumably she wants to be. It is always a last option of protest to shoot yourself (career wise) but it should be terminal. And you should only be able to do it once. Being a senior lawyer presumably she knows the principles as well as anyone? Hopefully she will at some stage explain her
reasoning more clearly?
Of course it would be massively damaging for her profession if she were to survive as a practicing senior lawyer. Surely that isn’t going to happen?
Ha, one of these huge liberal law firms or advocacy groups will pick her right up at twice the salary. She’s going to be anointed as some kind of hero of the great compassionate open borders movement. As Jack said, all rules, standards, and basic ethics appear to be off when Trump is involved. It is a dangerous game the left is playing by lionizing those who commit treachery and betrayal while demonizing a duly elected president. Things like this are how coups happen, when the leaders go one way and the actual men with the guns go the other. Bring on Second Civil War, if that’s what it takes.
Steve, she won’t be picked up by a law firm if if she is disbarred. And she should be. Lawyers have been disbarred for much less. Going public with a decision not to represent your client — and the lawyer/client relationship is a sacred trust (or at least every bar association thinks so) — is grounds for immediate disbarment.
The fact that loser/Democrats are making her a hero only proves Jack’s statement: Bias makes you stupid. There will be no retractions from the media. This is yet another ‘big lie.” Who are the Fascists now?
I’ll be shocked if she is disciplined in any way.
”one of these huge liberal law firms or advocacy groups will pick her right up at twice the salary.”
Jeepers, you don’t think that a lame duck on her way out did the Elmer Gantry Two-Step knowing it would raise her asking price, I mean profile, in emotionally gratifying truth-n-action seekers, do you?
If so, well, the terrorists have won…
Thanks for this post. I certainly feel more informed after reading it. The Nixon comparisons are wildly off base here, as you note. And obviously, she had to go. I will only add that while I agree that Trump’s use of “betrayed” in this context may be applicable, I sincerely wish his presidential statement on her termination were a little more, well, presidential. He’s dealing with a truly divided country and even if the division is not entirely his fault, his un-statesmanlike rhetoric is hardly helping matters.
I agree about the Trump statement, but that’s him…this is where “The Julie Principle” kicks in. It isn’t going to change.
Thanks again for writing this. These posts are why I keep coming here.
(I thought it was nostalgia for The American Century Theater!)
Trying to keep my knee-jerk liberalism in perspective — and to not be so knee-jerk! 🙂
“…we knew it was a snake when we picked it up…” Trump gonna Trump.
At least he got to use his best known tag line: “You’re Fired!”
So, whenever an AG disagrees with the President, he or she is obligated to resign quietly? Why not just give the White House a DOJ rubber stamp?
The AG can disagree all he or she wants to, just as lawyers often disagree with their clients. The question is whether they can still do their job anyway, which is to represent the client and not harm or deny their best interests. An EO has the force of law. The AG is obligated to defend the law, whether he or she “agrees” with it or not.
Yes, Holder was unethical to not defend DOMA before SCOTUS to the best of his ability. He doesn’t get to unilaterally decide that a law on the books, duly passed and signed by the executive (Clinton!) is unconstitutional. He can defend it, or quit.
Yates is the product of an unethical culture at Justice.
Ethics/Laws/Politics/Morals makes for almost any argument arguable for or against.
2015 video shows Jeff Sessions asking Sally Yates if she would say no to the president if he asked for something ‘improper’
http://www.businessinsider.com/sally-yates-jeff-sessions-video-2015-confirmation-hearing-2017-1
So what? Defending a law is not “improper.” Bad gotcha.
The AG has two clients — the government AND the American people
to uphold the Constitution. If the President issued an executive order that every third person was to be shot in the head at Customs, what should the AG do?
That’s not an arguably Constitutional EO. This was. Not a good analogy. And a government lawyer does not represent “the people” unless “the government of the people, by the people for the people” is for some reason unambiguously adverse to the people. That is clearly not true here.
I didn’t say it was an analogy, I was trying to test the limits of your crazy test. Of course the AG has a responsibility to only enforce Constitutional laws. It is also true, of course, that he/she owes a duty to the executive branch. Your analysis is just wrong because it ignores these competing duties. Where I am on the fence, however, is whether it is unethical to make a public statement. I probably would have fought with the President privately and made him fire me, but I do not think she was obligated to resign.
She didn’t do it based on a sincere belief, as proved by her subjective opinions about its wisdom. Those are superfluous if the law is really illegal. Her opposition was political. Obviously.
And you just ignore her conflict going in. She essentially lied that she was capable of representing a government not led by Democrats, and at the very first test of her loyalty, betrayed her client’s trust.
It’s not a crazy test. It’s called professional ethics, and is overwhelmingly backed by the literature, theory and practice.
She didn’t do it based on a sincere belief, as proved by her subjective opinions about its wisdom. Those are superfluous if the law is really illegal. Her opposition was political. Obviously.
Huh? We won’t know whether the law is “really illegal” until it’s tried in court. Yates says she thinks it’s illegal. What reason is there to think she’s lying about that?
And you just ignore her conflict going in. She essentially lied that she was capable of representing a government not led by Democrats, and at the very first test of her loyalty, betrayed her client’s trust.
Again: huh? How does this show that she “essentially lied that she was capable of representing a government not led by Democrats?” No Republican president has ever given such an order as this one, and dozens have since criticized it. This isn’t an ordinary Republican policy, it’s a whacked-out Trump policy written by incompetent extremists.
I mean, I can see the argument that she knew going in that she was incapable of representing a government led by Trump, but even that requires a degree of mind-reading that I don’t think is warranted here. Maybe she thought she could do it, and this made her realize she couldn’t.
It’s possible she planned on doing something like this all along. But isn’t it more likely she assumed that given how temporary her position is, she wouldn’t necessarily have to do all that much defending? I don’t think anyone expected constitutional challenges to executive orders to be raised within Trump’s first week as president.
Because her letter saying not to defend it gave NO legal reasoning, only speculation about what Trump really intended, and some political statements about what the attorney general is supposed to do.
“Yes, Holder was unethical to not defend DOMA before SCOTUS to the best of his ability.”
Even though Obama ordered him not to? That seems very different from this case where Yates explicitly rejected her president’s order.
Spartan raises a good point: is an AG really just an arm of the president, or are they permitted a greater degree of independence than the traditional attorney-client relationship? If they are just an arm of the president, should they be, or should they exist as one of the “checks” in our system?
Obama was also defying his oath of office. he doesn’t get to unilaterally repeal laws, you know. There is a process, very clearly paid out in the Constitution. If he wants a law repealed, he can work with the Congress to repeal it. he literally can’t order the lawyer for the country—the AG is not his lawyer—to defy the law. Trump, however, was expecting the acting AG to defend the law.
Obama could have easily repealed Doma when he had Democrats controlling Congress from 2009-thrugh 2010. He didn’t, an act of political cowardice.
Ordering an AG not to defend a law is neither repealing it nor violating it. There is plenty of precedent for past presidents ordering an AG not to defend a law in court. As far as I’m aware, though, there is no precedent for what Yates did.
You are right, there is precedent (though not much) for that, and many authorities (including me) believe doing so is a breach of the President’s duty. If one had, for example, refused to defend the Voting Rights Act, he might have been impeached, and justly so. But the fact that a law is suddenly unpopular doesn’t justify shortcuts.
This is a tough one for me to accept, but then, I am very biased, and take pleasure in anything that humiliates Trump, so I’m not going to say you’re wrong.
You are of course right that a client has a right to the best legal representation possible. But I can’t help thinking about why that right exists and who it’s supposed to protect. If Yates were defending a citizen, I’d say she had definitely acted unethically here. But her client is the United States government, the most powerful force in the world. They can easily find someone else who will defend them. Of course, that takes us back to the idea that she could have simply resigned. But I think there is something ethical about using the power she was given–and the AG has a LOT of power, more than any average lawyer–to say “this is wrong.” There is more than one ethical principle at work here. You could say that due to her profession, her duty to her client, and her professional code of ethics, are paramount above all other considerations. You could also say she saw her client as the American people, or the idea of the United States itself, rather than Trump. But these are emotional arguments, and I doubt they will persuade anyone here, or be seen as anything other than rationalizations. And maybe they are.
I have to think about this some more.
The Rules of Professional conduct do not distinguish between the US government and any other client, Chris, and she knew that when she 1) became a lawyer, 2) became a government lawyer, and 3) accepted the assignment of acting AG. Moreover, the order is certainly not clearly or unarguably illegal or unconstitutional. In fact, the argument that it is is the minority one. Lawyers do not have to agree with the positions they take for their clients; indeed, their agreement is irrelevant. Her conduct just isn’t a partisan issue. It’s a professional ethics issue, and one that isn’t really very debatable.
I do want to extend my thanks and gratitude to Sally Yates for giving me a wonderful hypothetical for this year’s DC Bar legal ethics seminar for government lawyers, AND this perfect opportunity to show how ignorant and incompetent the journalists are covering this episode, not one of which has discussed Yates’ ethical duties as a lawyer.
No, my phone isn’t ringing.
I am not a Trump partisan by any means. In fact, I think he is a cretin of the first order. But you are correct in your analysis – under the applicable Rules of Professional Conduct, she should have resigned. However, upon resignation and the termination of the attorney client relationship, what would prevent her from publicly explaining the basis for her reason, provided she disclosed no client confidences? Doesn’t the duty to zealously represent end upon the termination or representation?
Close call, and good question. It’s a gray area. As long as she didn’t reveal any confidences and was speaking as a citizen, she can criticize a former client according to most, but not all, authorities.
” I think he is a cretin of the first order.”
That was funny.
jvb
Incredible. The Democrats are actually trying to back Yates’ indefensible conduct, and claiming that there was something wrong with Trump firing her (as any President who ever lived would have done as well.). I’m wondering if they are trying to look ridiculous, or if they just assume that their followers are so ignorant they won’t know how unbelievably wrong they are. Wow.
I had to defend the firing to my students’ today, who were shocked when I told them about it. (Their question of the day last night was what they thought of the executive order.) She refused to do her job; of course he had to fire her.
I mean, his other option was to say “She’s right, and I’m repealing the order,” but that was never gonna happen.
Well, they are lucky to have you as a teacher, Chris. They don’t know how lucky they are.
An aside, I was just contacted out of the blue from one of the smartest and most astute lawyers I have ever known, a partner at a major DC firm. He e-mailed me oit of the blue and said he had been ranting since last night about how unethical Yates was and how outrageous it was that nobody was explaining it. And he said that my post restored his faith in the truth getting out somehow.
Made my day.
Thanks, Jack. It’s been getting hard for me to be as balanced as I’ve always tried to be when I discuss political issues with my class, so it was actually nice to defend Trump for once, and to actually mean it.
A comment from “Be Ashamed” :
Hmm guess Sally Yates WAS acting Judicial and not polictical since the Travel ban has temporarily been bound upheld by Federal Court with the same questions Yates cited. Such dribble you peddle
My reply:
The word is “drivel”…
A temporary stay has nothing to do with legality, and a lawyer’s disloyalty to a client and conflict of interest is not justified or validated by a judge’s stay. Out of your depth and beyond your expertise—I’d suggest paying attention, keeping your mind open and your mouth shut until you know a bit about what you’re opining about.
Do it somewhere else, though. You are banned.