. Legal ethics

About last night.

Things are moving so fast, the new administration has made it to one of the worst moments of the Nixon Administration in fewer than 11 days.  Now, in addition to being a constitutional crisis, America’s political drama involves an honest-to-goodness legal ethics issue so…

To recap, yesterday Sally Yates, a career federal prosecutor who was serving as Acting Attorney General of the United States, having been confirmed by the Senate in 2015, wrote a letter to prosecutors in the Department of Justice telling them not to defend an Executive Order issued by the President that has resulted in in various pieces of litigation being filed, most on an emergency basis, over the last 2 to 3 days.  In Ms. Yates’ words (which read like a grown-up, well-educated, adult wrote them):

On January 27, 2017, the President signed an Executive Order regarding immigrants and refugees from certain Muslim-majority countries. The order has now been challenged in a number of jurisdictions. As the Acting Attorney General, it is my ultimate responsibility to determine the position of the Department of Justice in these actions.

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. Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just.

Similarly, in litigation, DOJ Civil Division lawyers are charged with advancing reasonable legal arguments that can be made supporting an Executive Order. But my role as leader of this institution is different and broader. My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, 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. 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.

Consequently, for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.

Within three hours of that announcement, the Acting Attorney General was fired by the President.  The last time anything like this happened was the year I was born.

This is not normal; this is not appropriate; this is not at all how things should go.  Before going to bed last night, I’d already read too many folks online, including a former Speaker of the House, attempting to defend this move on the basis that the President simply wants “his people” in place or that Ms. Yates undermined her boss, refused to do her job, or was being insubordinate.

To the extent my teeny-tiny voice makes any difference, I want to make sure to state this as clearly as I can.

The Attorney General’s client is the United States, not the President.  The Attorney General’s job is not to do the President’s bidding.

The ethics rule that addresses the concept of who is the client for a lawyer in Ms. Yates’s position is Model Rule 1.13.  It establishes that, generally speaking, the client is the organization and not its constituent parts.  That same rule also addresses difficult situations where an attorney for an organization has to try to act when one or more constituents of the entity are trying to have the organization undertake wrongful activity.

Ms. Yates was doing her job, acting in what she considered the best interests of the United States by advising that the Justice Department not waste the United States’s resources attempting to defend an indefensible Executive Order.

The President’s firing of the Acting Attorney General because she refused to adhere to his interpretation of the law is shameful.  It would be shameful if members of the public had any good faith reason to believe that the current President actually understands or cares much about the law.  The statement the President issued to justify the firing does not do anything to help anyone think that the President actually understands or cares much about the law.  The statement is as childish as it should be frightening:

The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. This order was approved as to form and legality by the Department of Justice Office of Legal Counsel.

Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration.

It is time to get serious about protecting our country. Calling for tougher vetting for individuals travelling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country.

Tonight, President Trump relieved Ms. Yates of her duties and subsequently named Dana Boente, U.S. Attorney for the Eastern District of Virginia, to serve as Acting Attorney General until Senator Jeff Sessions is finally confirmed by the Senate, where he is being wrongly held up by Democrat senators for strictly political reasons.

“I am honored to serve President Trump in this role until Senator Sessions is confirmed. I will defend and enforce the laws of our country to ensure that our people and our nation are protected,” said Dana Boente, Acting Attorney General.

Things are moving fast, but the attorney who has agreed to be the new Acting Attorney General, Mr. Boente, was not the lawyer next in the line of succession pursuant to an Executive Order issued during President Obama’s tenure and last night there was speculation about that in a number of places and why that was.  It is still possible that the President may have turned to other attorneys before Mr. Boente to offer them the position and those attorneys turned him down, but that particular Executive Order does have language that makes clear that the President still retained the power to depart from what was set out in that order in selecting an Acting Attorney General.  Of course, I doubt very much this kind of Nixonian effort was what the 44th President had in mind.

Either way, history is going to have its eyes in a number of places over the next few days.  One of those places is going to be on the new Acting Attorney General and whether he is in any way someone who sees himself as representing the United States distinct from the President or not.  And while he may have stated in the press release that he will serve in the position until Senator Jeff Sessions is confirmed, my guess is that may not happen all that fast now, if at all.

What is happening fast, however, is that the U.S. is already quite deep in the midst of a full-blown constitutional crisis.  History will also have its eyes on the members of the U.S. Senate, both Democrats and Republicans.  In these circumstances, giving the man serving as the 45th President the Attorney General he wants is the kind of action that seems very likely to be something history would not view kindly.

At the very least, there should be some further hearings so that Mr. Sessions can be asked the same question that he posed to Ms. Yates at her confirmation hearing.  After all, her adherence to her answer just got her fired.  You can watch the exchange here.