Minutes after President Trump fired the acting attorney general, I was on Tucker Carlson’s show and suddenly had to deal with the breaking news.
At that very moment, I said, Trump critics were undoubtedly comparing the firing of Sally Yates for refusing to defend the president’s immigration order to Richard Nixon’s Saturday Night Massacre—and that would be a totally wrong-headed move.
When I looked at the New York Times yesterday morning, there it was in the fifth paragraph:
“Ms. Yates’s order was a remarkable rebuke by a government official to a sitting president, and it recalled the so-called Saturday Night Massacre in 1973, when President Richard M. Nixon fired his attorney general and deputy attorney general for refusing to dismiss the special prosecutor in the Watergate case.”
Not until the last paragraph of the piece did the Times note that by the way, “Ms. Yates, a career prosecutor, is different because she is a holdover from the Obama administration.”
And other cable news channels were using "Monday Night Massacre" banners.
We’ll return to that in a moment, but here’s a telling comment from Alan Dershowitz, the liberal Harvard lawyer who personally opposes Trump’s order of a temporary ban on refugees and on all travel from Iran, Iraq and five other predominantly Muslim countries.
Sally Yates has “made a serious mistake here,” he told CNN. “This is holdover heroism. It’s so easy to be a heroine when you’re not appointed by this president and when you’re on the other side.” By not offering an analysis of which parts of the ban she believes to be unconstitutional, Yates “has made a political decision rather than a legal one.”
The firing was dramatic, no question about it. Whether you agree or disagree with Trump’s policy—based on one of his most prominent campaign pledges—the rollout raised all kinds of questions. Why was there chaos at some airports? Why were some green-card holders detained? Why did it take hours to publicly identify the seven countries? Why did some House Republican staffers work on the issue without telling their boss? Which officials saw the final version of the order before it was signed? (Homeland Security chief John Kelly told reporters yesterday that he didn’t but was aware of earlier drafts.)
But there really shouldn’t be any question about the president’s right to order such immigration changes. And executive branch officials like Yates are supposed to carry out the president’s directives. So Trump dumped her and named a U.S. attorney in Virginia as acting head of the Justice Department.
Yes, Sally Yates is entitled to refuse to carry out the order as a matter of conscience, but then she should have resigned. Yates undoubtedly knew that she would be fired, but that was not such a risk, given that she was slated to leave office within days anyway once Senate Democrats ended their delay in confirming Jeff Sessions.
What’s also been lost, according to Stephen Miller, the White House official who played a key role on the order, is that Justice’s Office of Legal Counsel approved the order. As a onetime Justice Department reporter, I know that is crucial.
But Yates said in one meeting that she had to consider “comments from the president” that indicated his “intent” to single out Muslims, according to the Times. In other words, she took it upon herself to evaluate whether the order was “just,” as opposed to legally sound.
The result, according to this Times piece: “Ms. Yates, 56, a relative newcomer to Washington, has become a hero to many on the left and the face of a simmering resistance inside the government to Mr. Trump’s administration.”
Sean Spicer yesterday called Yates’ actions “bewildering as well as defiant.”
Now for the comparison to 1973. Nixon had ordered his Justice Department to fire Archibald Cox, the first Watergate special prosecutor. Attorney General Eliot Richardson and Deputy Attorney General William Ruckelshaus refused and resigned, and Nixon named an acting AG to carry out the order. His name was Robert Bork.
Nixon forced out his own appointees, while Trump dismissed an acting official appointed by Barack Obama.
What’s equally important is that Cox was conducting a criminal investigation of the involvement of Nixon’s White House officials and campaign aides in the Watergate scandals—a probe that would eventually topple the president himself. Yates was simply dissenting on a matter of policy.
Still, the liberal Huffington Post ran this headline: “Monday Night Meltdown: Acting Attorney General Fired for Having a Spine.”
National Review says Yates “chose insubordination” and that now “she’ll be a left-wing hero, influential beyond her heretofore status as a nameless bureaucrat. But she had to go.”
The conservative magazine offered this analogy: “There are many federal judges who oppose abortion. They apply Roe v. Wade even though they disagree with it intensely, because their duty is to obey superior courts.”
Here’s another example in which liberal pundits took a strikingly different position. After the Supreme Court legalized same-sex marriage, Kentucky clerk Kim Davis refused to issue licenses to gay couples, garnering nationwide publicity by saying this would violate her religious views. She also blocked her office from doing so. Some conservatives hailed her stance, but Davis was briefly jailed for contempt of court.
One case involves a judicial order and the other a presidential directive, of course. And there’s nothing wrong with dissent. But executive branch officials serve at the pleasure of the president.
There’s plenty of room for criticism and analysis here. But in this particular case, Donald Trump is not Richard Nixon.