Former acting Attorney General Sally Q. Yates was cheered Tuesday by Democrats thrilled with her refusal to enforce President Trump’s executive order on refugees, but she wasn’t always as picky when it came to White House directives.
Ms. Yates, whom Mr. Trump fired Monday night, engaged in no such rebellion against President Obama’s order on immigration amnesty in her role as the second-ranking official in the Justice Department, even after a federal court declared it unlawful.
The 5th U.S. Circuit Court of Appeals overturned Mr. Obama’s executive order on amnesty in November 2015, six months after the Senate voted to confirm Ms. Yates as deputy attorney general. The U.S. Supreme Court declined in October to hear the Justice Department’s appeal.
Ms. Yates’ decision to go to the mat for the Obama directive comes in sharp contrast to her defiance of the Trump administration, fueling accusations that she capped her 10 days as acting attorney general by crossing the line into political grandstanding.
How can a prosecutor justify as a matter of law defending one presidential order and not the other?
“You can’t,” said Jay Sekulow, chief counsel of the conservative American Center for Law and Justice.
“She made a moral judgment rather than a legal judgment,” Mr. Sekulow said. “She decided that she disagreed with the [Trump] policy; therefore, she thought she could somehow not defend it, which is not what her oath of office said. She was derelict in her duties. In my view, she abused her office and the president was absolutely correct in relieving her from her responsibilities immediately.”
Jonathan Turley, a law professor at George Washington University, said Mr. Trump “absolutely” had the right to fire Ms. Yates. “There’s no question at all about that.”
He described the Trump executive order as constitutional, even though he said he disagrees with it as a matter of policy, and pointed to the Justice Department’s double standard on presidential orders from one administration to the next.
“This is the same Justice Department that just last year was defending President Obama in arguing for unilateral authority saying that judges should not second-guess the president on immigration,” Mr. Turley told MSNBC’s “Morning Joe.” “It’s the same Justice Department that defended the so-called torture program. It’s very inconsistent.”
Democrats defended Ms. Yates for taking a stand against the hotly contested order, which temporarily halts the refugee program and U.S. entry from seven Muslim-majority countries, even as legal analysts raised concerns about her insubordination.
Harvard law professor Alan Dershowitz said Ms. Yates had an “obligation to resign” rather than substitute her policy judgment for that of the president. He said she made a “serious mistake.”
“I think she was wanting to be a holdover hero,” Mr. Dershowitz told CNN. “It’s the easiest thing in the world when you’re a person from the other party to become a hero, to become a hero to all of the people like me who are opposed to this policy.
“But in doing that, she — I think — clearly overstepped her bounds,” he said. “She has no right to refuse to enforce the law because she disagrees with the policy.”
Her former boss, former Attorney General Loretta E. Lynch, praised Ms. Yates for her “courageous leadership.”
“With her decision not to defend the executive order regarding immigration, Sally Yates displayed the fierce intellect unshakable integrity, and deep commitment to the rule of law that have characterized her 27 years of distinguished service to the Department of Justice under both Democratic and Republican administrations,” Ms. Lynch said in a Tuesday statement.
The entree of politics into prosecutorial discretion has raised red flags since California Attorney General Jerry Brown refused to defend Proposition 8, the state’s 2008 ban on same-sex marriage. Former North Carolina Attorney General Roy Cooper defied the state’s transgender bathroom law last year during his successful bid for governor.
Eric H. Holder Jr., Mr. Obama’s first attorney general, refused in 2011 to defend the federal Defense of Marriage Act against lawsuits.
In each of those cases, however, the attorneys general said they believed the laws to be unconstitutional, while Ms. Yates indicated that the Office of Legal Counsel had reviewed the executive order for form and legality but that the review does not “address whether any policy choice embodied in an Executive Order is wise or just.”
“She never argued that this was unconstitutional. She simply said, ‘I don’t think it’s wise,’” said Josh Blackman, associate professor at the South Texas College of Law in Houston. “What Holder said in 2008 was that he no longer thought DOMA was constitutional, so he would no longer defend it, but that he would still enforce it. So there’s a big difference.”
What’s more, before Mr. Holder acted on DOMA, he met with the president, Mr. Sekulow said.
“She doesn’t even try to argue the constitutionality,” said Mr. Sekulow. “By the way, when Holder did not defend DOMA, he discussed it with the executive, the president, and that’s how the decision was made. You can’t do this on your own — he served at the pleasure of the president. She did it on her own. She doesn’t get to do that.”
The firing touched off comparisons to the “Saturday Night Massacre,” the 1973 episode in which two attorneys general were fired by President Nixon after they refused to dismiss Watergate special prosecutor Archibald Cox.
Democrats quickly dubbed Ms. Yates’ firing the “Monday Night Massacre.” Rep. John Conyers Jr., Michigan Democrat and the ranking member of the House Judiciary Committee, invoked Nixon on Twitter: “Trump has commenced a course of conduct that is Nixonian in its design and execution and threatens the long-vaunted independence of DOJ.”
That said, Watergate reporter Carl Bernstein said there is big difference between the two so-called massacres, noting that Nixon was the target of the Cox investigation.
“I think the president is within his rights here to fire the attorney general,” Mr. Bernstein told CNN.
At the same time, said Mr. Bernstein, “It’s not wise that he did.”
He said Mr. Trump’s presidency is “in chaos, and it’s apparent to all but his most serious defenders.”
Mr. Dershowitz said he disagrees with the president’s executive order, but that doesn’t excuse Ms. Yates’ refusal to enforce the directive.
“She is the chief law enforcement officer of the United States,” Mr. Dershowitz said. “She has a client; her client is the government of the United States. She has an obligation to enforce the law even if she disagrees with the policy behind it as long as it’s unconstitutional and lawful. She went well beyond that.”