'A crisis of conscience': Trump's firing of Sally Yates sparks debate on attorney general role

Sally Yates kept her word, but it doesn't mean she should have kept her job, say former heads of the U.S. Department of Justice, responding to President Donald Trump's firing of the acting attorney general who defied his controversial immigration order.

'Your job is not to 'do what's right.' Your job is to enforce the law,' former Bush-era attorney general says

U.S. President Donald Trump fired acting attorney general Sally Yates after she directed the Justice Department not to defend his executive order closing U.S. borders to people from seven Muslim-majority countries. (J. David Ake/Associated Press)

The exchange in the video clip is downright prescient.

Two years ago — before U.S. President Donald Trump fired Sally Yates as acting attorney general, before Trump signed his controversial executive order on immigration, before he was even considered a remote possibility for president — a Senate confirmation grilling put Yates across the table from the man now set to take her place as the country's chief law enforcement officer.

The back-and-forth was an attempt to draw out how Yates, testifying to become deputy attorney general, viewed the obligations of heading the Justice Department.

"You have to watch out," Republican Senator Jeff Sessions of Alabama warned her. "Because people will be asking you to do things you just need to say 'No' about."

Fast-forward to 2017 and Sessions is awaiting confirmation to serve as the 84th U.S. attorney general. And Yates, an Obama administration appointee, was sacked Monday after directing her department not to defend Trump's executive order closing U.S. borders to people from seven Muslim-majority countries.

Her defiance was celebrated in progressive circles.

"Please be clear: Sally Yates was fired for honoring her oath, the Constitution and the law," tweeted David Rothkopf, the CEO and editor of Foreign Policy magazine.

Brian Fallon, a former press secretary for Democratic presidential candidate Hillary Clinton, said Yates exited the department "a hero."

The hashtag #SallyYatesAmericanHero began trending and the footage from her 2015 exchange with Sessions made the rounds, including a clip where Sessions asks Yates whether her allegiance would lie with the law or the chief executive of the country.

"Sometimes the lawyers have to tell the CEO: 'Mr. CEO, you can't do that. Don't do that. We'll get us sued. It's going to be in violation of the law. You'll regret it, please,'" he told her. "No matter how headstrong they might be. Do you feel like that's the duty of the attorney general's office?"

"Senator," she replied, "I believe that the attorney general or the deputy attorney general has the obligation to follow the law and the constitution, and to give their independent legal advice to the president."

Demonstrators hold signs during an anti-Trump travel ban protest outside Hatfield-Jackson Atlanta International Airport earlier this week. (Chris Aluka Berry/Reuters)

Yates may have kept her word, but it doesn't mean she should have kept her job, say former Republican and Democratic leaders of the Justice Department.

'What is right'

In her directive to lawyers on Monday, Yates wrote: "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."

Alberto Gonzales, who served as attorney general under George W. Bush between 2001 and 2005, says Yates doesn't conclude the executive order is unlawful, only that it's questionable whether it is "wise or just," and that the office must "stand for what is right."

"To do 'what is right' — no," Gonzales says. "Your job is not to do 'what is right.' Your job is to enforce the law. You might think it's a terrible idea, but that's not your job as the attorney general of the U.S."

Alberto Gonzales, who served as attorney general under George W. Bush between 2001 and 2005, says he doesn't quite understand why Yates didn't simply resign. (Jim Bourg/Reuters)

On Monday, a White House statement said Yates had "betrayed" her department.

While Gonzales disagrees with that characterization, he says it's expected for the attorney general to defend, if possible, an executive order signed by the president "whether you like it or not." It would be his or her duty to inform, advise and communicate concerns directly with the White House.

"I assume she sent out the directive because the White House didn't listen to her," he said. "She could have resigned and allowed the next acting attorney general to make a decision on whether to defend the executive or not."

'Political statement'

Some conservatives found Yates' directive smacked of moral preening.

"If an attorney general disagrees with the president on the law or policy or has a crisis of conscience about that, their responsibility is to resign," said George Terwilliger III, a deputy and acting attorney general under Bush. "What Ms. Yates has done is take that crisis of conscience and turn it into a political statement."

Trump signs his controversial travel ban. (Carlos Barria/Reuters)

It's not her job, he says, to "stay there and tell the career men and women of Justice Department they should not do their jobs."

Benjamin Civiletti, a Democratic attorney general appointed by Jimmy Carter in 1978, said the role is often reserved for a close confidant or friend of the president who can offer a trusted but skeptical opinion.

"Even if it's not absolutely legally sound, if it has a good argument, he or she has a duty to make that argument in a legal challenge," Civiletti said.

Dana Boente replaced Yates as acting attorney general. (Evan Vucci/Associated Press)

Resignation, he says, would be a last resort.

"If you have a very, very serious doubt about the constitutionality of an executive order, then you try to adjust it so that it passes constitutional muster. A word here, a sentence, a phrase," he said. "It's very unusual for an attorney general, or an acting attorney general … to resign because the president insists on issuing an executive order."

In any case, an equally capable lawyer who believes in the lawfulness of the executive order would simply step in to defend it. That duty fell to Dana Boente, the new acting attorney general. On Monday night, Boente ordered that Yates' guidance be ignored so officials could begin the work of defending Trump's immigration ban.


Matt Kwong


Matt Kwong was the Washington-based correspondent for CBC News. He previously reported for CBC News as an online journalist in New York and Toronto. You can follow him on Twitter at: @matt_kwong