Deconstructing St. Sally

REUTERS/Kevin Lamarque

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Kevin Daley Supreme Court correspondent
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White House press secretary Sean Spicer characterized former acting Attorney General Sally Yates as a political opponent of President Donald Trump and strong supporter of Hillary Clinton during Tuesday’s briefing, prompting skeptical responses from the assembled press.

During several exchanges in the briefing, Spicer suggested the administration evaluated Yates’ conclusions concerning former National Security Advisor Lt. Gen. Michael Flynn with greater scrutiny, because she was “appointed by the Obama administration and a strong supporter of Clinton.”

There’s little evidence to suggest Yates is a hard partisan. She served in the U.S. Department of Justice under Democratic and Republican presidents, and prosecuted former Atlanta Mayor Bill Campbell, a prominent Georgia Democrat, during her tenure in the U.S. attorney’s office. What’s more, Georgia Republicans have been effusive in their praise of her career in the recent past, and most of the Senate GOP caucus voted for her confirmation as deputy AG.

Nonetheless, it’s naive to suggest Yates is immune to the political passions of the moment, especially during the intense civic unrest that attended Trump’s inauguration. And Yates’ long association with the Democratic party (no sin for a political appointee) should put to rest the notion that she is a perfectly neutral arbiter of facts.

In the first place, Yates is the product of an old line political family. Her father and grandfather were each appointed by Georgia governors to lengthy terms on the Georgia Court of Appeals. Her husband Comer joined that political tradition and stood as a Democratic candidate for Congress twice in the 1990s. Though Yates has not put herself forward as a political figure, that may soon change. Politico reports Georgia Democrats are lobbying her to run for governor in 2018.

“I don’t think you can think of any possible candidates in Georgia and not mention Sally Yates’ name right now,” said Tharon Johnson, southern regional director for former President Barack Obama’s 2012 campaign.

None of this is to suggest Yates is a political operative, but she can’t be cleaved from the Democratic party as easily as some suggest.

Her handling of the president’s first executive order should also give her boosters pause. As Marty Lederman, a veteran of the Obama Justice Department, explained, the Justice Department always gives an executive order the presumption of legality, and will always defend it in court.

“As long as the president’s view is that it’s lawful, of course the Department of Justice will defend its legality in court because the president gets the final word on [what position] the executive branch and the Department in particular … take in court,” he said.

Yates failed to abide by best practice. Her views were irrelevant to the Department’s obligation to defend the order. One wonders why the acting AG, a seasoned DOJ veteran, would chose to eschew this tradition and force the president to fire her.

And as Lawfare’s Jack Goldsmith notes, her story with respect to the order has changed since her dismissal in January. After reviewing the first order on Jan 30, Yates told Justice Department officials that she was “not convinced” of the order’s legality. During her testimony before a Senate committee this week, she adopted a definitive stance, and told senators she believed the order was unlawful.

This distinction is small, but it matters. It may be explained by any number of factors, but these divergent conclusions suggest Yates is adopting different postures as facts unfold — in other words, politicking.

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