On January 30, 2017, President Donald Trump fired acting United States Attorney General Sally Yates. The reason? She sent a letter to Justice Department lawyers instructing them not to enforce the executive order that President Trump signed on January 27, 2017, titled “Protecting the Nation From Foreign Terrorist Entry Into the United States” (commonly referred to as the “Muslim ban”; the full text of the order can be found here). Yates wrote, “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.” Not surprisingly, many conservatives cheered the dismissal; one comment on an article on foxnews.com concerning the matter reads, “SHE SWORE TO UPHOLD THE LAW & CONSTITUTION AND TOOK AN OATH… at a minimum, she is in breach of oral contract, and should be subject to the pains and penalties of perjury.”
The whole event brings to mind the story of Kim Davis, the county clerk of Rowan County, Kentucky.
Ms. Davis gained international notoriety in August of 2015 when she refused to issue marriage licenses to same-sex couples following a Supreme Court decision in June of that year that paved the way for same-sex marriage, saying she was acting, “under God’s authority.” Several prominent conservative politicians, including Mike Huckabee and Senator Ted Cruz, both running for president at the time, lauded Davis’s action; on her release from jail after being sent there for contempt of court for failing to comply with a court order, Huckabee even offered to go to jail in her place, should she be sent back (sadly, we never got to see if he would have been true to his word; I wonder if he would have made the same offer if the clerk had been a Muslim woman who had decided that her religious faith precluded her from granting marriage licenses to Christian couples? Scratch that, no wondering needed). At the time, liberal opposition to Davis’s stand looked remarkably similar to what we’re seeing now from conservatives in response to Yates’s stand: outcry over the fact that she swore an oath that she was breaking, and calls for her ouster. So… is there a difference? You bet.
In 2015, Kim Davis used her personal religious faith in deciding to ignore a court order. Rights had been granted to a group of people, and because of her religious beliefs, she decided that those rights should not have been granted. And in her official capacity as a county clerk, she was able to prevent people from exercising rights that had been granted to them, because one of her duties was to sign off on marriage licenses.
In the case of Sally Yates, we have to first dig a bit deeper: what, exactly, is the United States Attorney General responsible for? According to The Judiciary Act of 1789: “to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his or her advice and opinion upon questions of law when required by the president of the United States, or when requested by the heads of any of the departments.” So weighing in on the legality of any of President Trump’s executive orders is absolutely appropriate — and, should they be found lacking, it would be prudent for the Attorney General to communicate this fact to Justice Department employees.
So on the one hand, we have someone defying a court order to allow people to exercise rights that had been granted to them, because of her religious beliefs; on the other hand, we have someone whose official capacity demands that they comment on issues of legality, and instruct those who are in the employ of the Justice Department to not pursue cases where the legality of the government’s position might be in question; indeed, the oath of office for the Attorney General is an oath to uphold the Constitution, not an oath to “do whatever the President says.” Both sides can cry, “She took an oath!” But the situations are worlds apart.
Interestingly, Senator Jeff Sessions — President Trump’s pick for Attorney General, currently going through the Senate confirmation process — grilled Sally Yates on the topic of “saying no to the president” back in 2015 during her own Senate confirmation hearing:
It appears that Sally Yates means what she says.