On October 20th, 1973, President Richard Nixon ordered Attorney General Elliot Richardson to fire special prosecutor Archibald Cox, the independent investigator assigned to examine possible presidential impropriety. Richardson refused and then resigned.
President Nixon went through another Attorney General before Robert Bork, who was Solicitor General, was sworn in as Acting Attorney General and promptly fired Archibald Cox. These events are now referred to as the Saturday Night Massacre and, although no blood was shed, careers were ended and our faith in government was irreparably damaged.
On the evening of Monday, January 30th, 2017, President Donald Trump fired Acting Attorney General Sally Yates, an Obama appointee who was asked to serve in the position until a new Attorney General is confirmed by the Senate.
Mrs. Yates had declined to defend President Trump's executive order that halted the admittance of refugees from seven countries in courts and instructed the Justice Department to do the same. President Trump relieved Mrs. Yates of her duties and appointed Dana Boente, a federal attorney in Northern Virginia, to fill the position until Sen. Jeff Sessions (R-AL) is confirmed.
In a statement, the White House claimed that Mrs. Yates "betrayed the Department of Justice" and that she was weak on issues of immigration and domestic security. An interesting statement to make of someone who has served in the Justice Department for decades and was the lead prosecutor against Eric Rudolph, the Centennial Olympic Park bomber.
In examining the President's ability to remove officials, in the case Myers v. United States, Chief Justice Taft argued that the President had the power of removal and did not need the consent of the Senate as he does when appointing executive officials and judges, so President Trump does have the authority to fire department heads, such as the attorney general, if the President believes they aren't doing their job.
Therein lies a controversy: what is the role of the Attorney General? Of course, they are the head of the Justice Department, the nation's top law enforcement official and are appointed by the President. But are they to serve as an independent, legal counsel to the President and offer him advice in accordance with statutes and the Constitution, or are they there to ultimately serve him? Most would say that the Attorney General should be a mixture of both. They should advise the President and then carry out his decision. As we saw in 1973, if the Attorney General doesn't want to carry out their orders, they resign.
The part of the Justice Department that provides advice to the executive branch, the Office of Legal Counsel (OLC), is said to not have participated in the process of drafting and implementing the executive order, a traditional step. The White House disputes this claim. Mrs. Yates, before she was relieved, sent a statement to Justice Department officials that included her belief that she wasn't convinced the order was legal. The New York Times reported that Mrs. Yates was informed of her firing 15 minutes after Boente was sworn in.
When all the dust settles and Senator Sessions takes the helm at the Justice Department, the executive order will be front and center instead of the legality of Mrs. Yates' removal. How history remembers the events of the past weekend is less certain and largely dependent on the outcome of the court battle over the executive order. If the executive order is upheld, we may forget this snafu or else remember the recalcitrant holdover from the last administration. However, if the courts disagree with President Trump, we may remember Mrs. Yates how we remember Richardson: as someone who chose not to be a puppet to a President.
