US trial attorney Reuben Guttman shares his reflections on President Donald Trump's dismissal of acting US Attorney General Sally Yates.
I was sitting at dinner several years ago next to Sally Yates when she was the United States Attorney for the Northern District of Georgia. I listened intently as she talked about her background as a one-time lawyer with Atlanta's old-line law firm, King & Spalding, her work as an Assistant United States Attorney, and her prosecution of Olympic Park bomber, Eric Rudolph. Sally Yates is impressive, and it was no surprise that, sometime later, President Obama nominated her to the position of Deputy Attorney General of the United States, the second highest post in the Justice Department.
Until yesterday, Yates was known mostly for the Rudolph prosecution and a September 9, 2015, memo -- the 'Yates Memo' -- directing Justice Department prosecutors, investigating corporate crime, to pursue those individuals within the corporation who charted the wrongdoing. 'One of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing,' wrote Yates. Among other directives, the memo stated that 'to be eligible for any cooperation credit, corporations must provide to the Justice Department all relevant facts about the individuals involved in corporate misconduct.' For line prosecutors and investigators, the Yates Memo meant more work. But for Yates, it was the right thing to do in an era where corporate criminal pleas are commonplace. Consider, for example, that we now depend on a host of convicted criminals -- the big pharmaceutical companies -- to provide life-saving drugs. And, of course, corporations can only engage in wrongful conduct because of the actions of individuals. This is what Sally Yates knew.
The 'Yates Memo' may now be just a mere footnote in the biography of Sally Yates. On January 20, 2017, Yates -- an Obama holdover -- became the Acting Attorney General until the Senate confirmed a full-time appointment. Now, just ten days into her acting position, on January 30, 2017, President Trump fired her after she directed the Justice Department not to defend the President's Executive Order restricting immigration from seven predominantly Muslim countries. Yates wrote: 'I am responsible for ensuring that the positions we take in court remain consistent with the institution's solemn obligation to always seek justice and to stand for what is right. 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.' And Yates continued: 'Consequently, for as long as I am the acting attorney general, the Department of Justice will not present arguments in defense of the executive order, unless and until I am convinced that it is appropriate to do so.'
For Yates, the tone was not surprising. Career DOJ prosecutors and DOJ civil defense lawyers are trained only to make arguments that have been vetted and have merit. Rather than meet the Acting Attorney General's challenge to convince her why the executive order is lawful, President Trump fired her. No surprise either; he became a television personality by firing people. News of the firing hit the internet quickly, but little attention was paid to the carefully crafted words of Yates -- a 'lawyer's lawyer' -- who wrote, 'unless and until I am convinced that it is appropriate to do so.'
Sometime over the next ten days, five Federal Judges who are hearing challenges to the President's Order will be issuing the same challenge posed by the Acting Attorney General: 'convince me why this order is lawful?' At that point, lawyers for the President will have to do some convincing. This time, the President will not have the option of firing the person who posed the challenge. Mr. Trump -- who seems short on appreciation for the rule of law -- will learn that the office of the President is not the same as a reality TV show and that Federal Judges are lifetime appointments who cannot simply be fired.