Acting Attorney General Yates and the Decline of Civic Norms

Civic norms in our nation seem to be unraveling. Some citizens and legislators made a concerted effort to delegitimize President Obama by making frivolous claims about his place of birth. Today, other citizens and legislators attempt to delegitimize President Trump by making frivolous claims that his failure to win the popular vote or Russia’s hacking somehow reverses the legal verdict of a presidential election.

The refusal of the holdover Acting Attorney General, Sally Yates, is another troubling step in our the dissolution of our norms. It is a sad matter when citizens and legislators flout them. But it may be of greater concern when executive branch officials do so, particularly when they run the Department of Justice as holdovers in the delicate transition period.

The Department of Justice defends legislation and presidential actions if there is a reasonable basis in law to do so. No Attorney General has ever taken the position that he will defend such actions only if he is confident that they are legal and only if he believes they are just. For good reason. The Department of Justice in litigation acts a lawyer, not a policymaker. And yet, as Jack Goldsmith has shown, the standard Sally Yates articulated for defending the President’s executive order on immigration was at odds with the traditional standard: she declined to defend because she was not confident that the order was legal and thought it unjust.

And beyond her failure to follow standards, she grandstanded. She did not approach the President with any concerns she had, offering to resign if they could not be met. Instead, she wrote a letter to the Department of Justice without consulting the President and allowed it to be leaked it to the press. Would she have ever treated President Obama like this on an issue on which she had reservations? Why does she owe any lesser professional duty to President Trump, for whom she agreed to act as Attorney General?

Some have suggested that she was justified because she really did believe what President Trump did was illegal, given comments he made about a preference for Christian refugees and comments Rudy Giuliani made about how he advised that the order be framed in terms of danger to the United States.

But Yates did not say that the statements made it unreasonable to defend the orders. And in any event, it is hard to see how they materially change the litigation prospects of the order that her Department already approved. The order does not discriminate against Muslims, applying instead to certain nations that are named already as places where visas should be particularly scrutinized. Many populous Muslim- majority nations are completely unaffected.  And the order itself contains a preference, not for Christians, as Mark Movsesian notes, but for minority religions in the affected nations. Christianity would naturally be one of those minority religions.  And would any serious Justice Department think it a good precedent to allow opponents to impeach the otherwise legal orders of the President based on his off-the-cuff remarks, let alone the comments of people who claim to be advising him?

Transitions between parties are a double pirouette in the dance of democracy. They require agents of the outgoing administration to cooperate with the incoming one.  Yates’s behavior damages the trust needed for smooth transitions.  Some have called her a hero. But she has eroded an important republican virtue: following traditional civic norms built up over decades even when they go against the passions of the moment. To be sure, as I have suggested before, this President has himself flouted civic norms, but that should not immunize from criticism egregious violations by his opponents posing as subordinates.

Reader Discussion

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on February 01, 2017 at 11:31:18 am

With all due respect, despite the fact that it is a self evident truth that what separates marriage from every other Loving relationship, is the ability and desire to exist in relationship as husband and wife, and thus be married to each other, and despite the self evident truth that marriage cannot in essence be, existing in relationship as husband and wife and not existing in relationship as husband and wife, simultaneously, The Obama Justice Department, by relinquishing their fiduciary duty to defend and uphold the law, has, in essence, contributed to the invalidatilon of every valid marriage contract. Removing that necessary requirement for a marriage contract to be valid, which is the ability and desire to exist in relationship as husband and wife, thus changing the letter and the spirit of the law, makes it now possible for any relationship to be defined as marriage if one so desires.
Truth will not contradict truth.

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Nancy D.
on February 03, 2017 at 16:35:35 pm

And then there is this evidence a marked decline in political norms and the Left's obstinate refusal to accpet the fact that THEY LOST:


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on February 07, 2017 at 15:50:09 pm

General Yates Version: 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," she said in a letter. "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 How funny......

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Steve Daniel
on March 20, 2017 at 13:25:49 pm

Nice Information

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James Carafano

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.