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The president versus the attorney-general

10 February 2017

Donald Trump’s sacking of Sally Yates raises broader questions about how best to respond to the new administration

Right:

Taking responsibility: former acting US attorney-general Sally Yates. US Department of Labor/Wikimedia

Taking responsibility: former acting US attorney-general Sally Yates. US Department of Labor/Wikimedia


Donald Trump had been president for less than two weeks when the words “constitutional crisis” were first uttered. Following the tumultuous first ten days of his presidency, the acting US attorney-general, Sally Yates, issued a letter to all justice department lawyers instructing them not to defend Trump’s executive order on immigration, which blocked migrants from seven majority-Muslim countries from entering the United States.

Yates’s actions followed widespread public outrage over the order. Thousands were protesting at airports across the country, international condemnation was mounting, and a string of federal court judges had temporarily halted deportations (with more cases challenging the order to follow). As we began writing this article, a federal court judge issued a restraining order against the carrying out of Trump’s directive. The new president tweeted with evident anger about the decision of the “so-called judge,” and the White House issued a press release referring to the judgement as “outrageous” (a word deleted in a reissued version), the justice department, now under the leadership of a new acting attorney-general, Dana J. Boente, and the homeland security department reacted in the manner required of them. The justice department filed an urgent appeal to stay the judges’ decision, which was unsuccessful; a further appeal is expected. Homeland security has returned to the procedures in place before the executive order was issued.

Yates’s letter is not entirely clear about the basis for her refusal to defend the executive order. She emphasised her distinct role as attorney-general:

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. 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.

Defending Trump’s order was not consistent with these responsibilities, she argued, “nor am I convinced that the executive order is lawful.” But her position also appeared to be at least partly informed by her judgement that the order was not wise or just. The Office of Legal Counsel had reviewed the order for legality before it was issued, and had found it lawful, she said, but such a review doesn’t take account of “statements made by an administration or its surrogates close in time to the issuance of an executive order that may bear on the order’s purpose.” Nor does it address “whether any policy choice embodied in an executive order is wise or just.” Her role “as leader of this institution” is different, she said. Within hours, the White House had removed her from office, labelling her actions a “betrayal.”

A number of distinguished academics and former government lawyers took the view that Yates had refused to defend Trump’s order on ideological grounds, and was thus acting improperly. No matter how sincerely such views are held, and no matter how widely they are supported, an appointed official can’t justify acting against the orders of an elected president for that reason. While some of these experts have indicated their sympathy for Yates’s dilemma, they nevertheless claim she made an error of judgement.

Less sympathetic critics have labelled Yates’s actions a blatant act of political partisanship. (She was an Obama appointment who had worked in the justice department for twenty-seven years.) But her defenders argue that she acted in accordance with her overarching obligations to the Constitution, the rule of law and justice. According to this view, her actions were the courageous act of a lawyer of integrity attempting to protect basic legal institutions.

At issue here is a core question: how should government officials, and particularly government lawyers, respond to actions they believe to directly threaten the constitutional order? And what are the risks of getting it wrong? There is no simple or even single answer. Perhaps more importantly, though, Yates’s actions offer insights into how we all should respond to Trump and the populism he represents.

These questions are raised acutely in the US context by the clash between Yates and Trump, but they also have strong resonance in Australia, and not just as we work out how governments and individuals should respond to Trump’s style of politics. As we were reminded by the Australian government’s recent attacks on the independence of the solicitor-general and his subsequent resignation, these are day-to-day questions for any government lawyer or official. During that controversy, it was alleged that solicitor-general Justin Gleeson had refused to comply with the instructions of the attorney-general in a controversial constitutional case, raising the very questions that erupted in Washington.

The orthodox view of the attorney-general

The proper role of the US attorney-general, and of two offices he or she oversees – the Office of the Solicitor General and the Office of Legal Counsel –­ is the subject of rich academic debate. The issues first came to widespread public attention in 1987, when Lincoln Caplan claimed, in his explosive book The Tenth Justice: The Solicitor General and the Rule of Law, that president Ronald Reagan’s solicitors-general had abused their position, sacrificing independence and commitment to the rule of law in the pursuit of Reagan’s political agenda. Caplan’s argument that the solicitor-general is, and should be, entirely independent was heavily criticised, and an orthodox view emerged that the office has no separate mandate and must act on the instructions of the executive.

According to this view, if there is a legally defensible, or plausible, argument available to defend an action taken by the US administration, the solicitor-general must use it. If he or she has a strong moral objection to the action, he or she must act, or refuse to act and suffer the consequences, or resign (and make a public statement as to why). If, however, the government lawyer believes there is no legally defensible argument, and is asked nonetheless to defend an executive action despite having offered this view, the lawyer’s obligations to the law dictate that he or she must refuse to act (and suffer any consequences) or must resign.

A renewed public and academic debate was triggered by the release of the Office of Legal Counsel’s “torture memos.” A number of former lawyers at the office subsequently issued a memorandum of guiding principles asserting that lawyers in the office have a constitutional obligation to advise the government based on their best view of what the law requires, in order to assist the president to fulfil his constitutional duty to uphold the laws. According to the memo, “When providing legal advice to guide contemplated executive branch action, OLC [the Office of Legal Counsel] should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies.”

No one could argue that, as an adviser, the government lawyer is acting without a proper mandate. The administration can, of course, choose whether to act in accordance with that advice. This may lead to a government lawyer choosing to resign rather than keep working for an administration that he or she believes is acting unlawfully. But the government lawyer can’t take matters into his or her own hands.

The memorandum very clearly emphasised the distinction between the ethical framework governing an adviser and that applying to an advocate. The adviser is free to differ, in the interests of ensuring the government is properly informed. The advocate defends government actions after the event “as long as a reasonable argument can be made in its defence (even if that argument is not the best view of the law).”

So where do Yates’s actions sit against this orthodox view of the attorney-general’s role and distinct functions?

What was Yates saying?

Sally Yates’s thinking is not made altogether clear in her letter. Some observers suggest that her argument amounted to a rejection of the order in terms of immigration policy (bringing the justice/fairness concern to centrestage), and others that it was a rejection of the order’s legality. It may have been both.

If Yates believed that a plausible legal defence of the executive order existed, but didn’t think, overall, that the action was lawful, then she might have acted beyond the orthodox role described above. Her actions would become defensible only if there was an emergency-type exception that she could draw on in times of constitutional crisis. But if Yates believed there was no legally plausible argument, then she was justified in refusing to act, and in instructing the lawyers in her department not to act (although she must have known that the likely consequences of her doing so was that the president would fire her, as he duly did).

Much has been made of the view Yates expressed in her confirmation hearing as deputy attorney-general in 2015. When she was asked how she would respond if a president wanted to do something unlawful, she replied that an attorney’s obligation was “to follow the law and the Constitution, and to give their independent legal advice to the president.” But that statement doesn’t actually take the debate about her current action very far: there, she was referring to her obligation to give independent legal advice to the president; in her letter early this month she was talking about defending the executive order in her role as the government’s advocate in court.

Jeff Sessions, Trump’s now confirmed nominee for attorney-general, discussed the dilemma more directly during his own confirmation hearing, espousing a version of the orthodox view: “If an attorney general is asked to do something that’s plainly unlawful, that person would have to resign ultimately before agreeing to execute a policy that the attorney-general believes would be unlawful or unconstitutional.”

Invoking the attorney-general oath to “support and defend the Constitution” doesn’t greatly advance the debate either. According to the orthodox view, the role of the attorney-general as advocate is to defend the executive’s position where there are plausible arguments for its legality. This is entirely consistent with support for and defence of the Constitution. When the executive’s position doesn’t even cross that threshold of legality, defending the Constitution is arguably best done by resigning.

Here, we don’t need to resolve the question of the legality of Trump’s executive order, which turns on complex questions of statutory interpretation, and administrative, international and constitutional law. And, without knowing for certain whether Yates believed that the order was plainly unconstitutional or unlawful (in the sense that there was no plausible argument that could be made in its defence), it is hard to determine whether she was acting within an orthodox view of the role of attorney-general.

But the suggestion that the acting attorney-general might have departed from orthodoxy leads to a far more interesting, and potentially disturbing, question: why would she act in this way? One easy answer – that she is a partisan hack overreaching her powers to advance the Democratic Party’s agenda – doesn’t accord with the evidence. And the argument that she simply misunderstood the limits of her office doesn’t accord with her history as a highly respected and long-serving legal officer whose appointment to her current role was approved, less than two years ago, by 84–12 in the Senate. The more difficult answer may be that the actions of the Trump administration led her to worry that basic constitutional norms were threatened, and she felt compelled to act to defend them.

Extraordinary circumstances, precautionary approach

This brings us to the argument that Yates’s position can be justified, even if it falls outside the orthodox view of the attorney-general’s role that ought to persist in times of constitutional normalcy, because these are not such times. The administration’s actions have raised genuine concern that constitutionally based institutions in the United States are being imperilled. If Trump and his administration are acting contrary to, or are at best apathetic about, legality and fidelity to the constitutional order and conventions, then there is an argument that standard operating procedures may not apply.

One reading of Yates’s statement is that she acted, at least subjectively, out of such concern. Acting in this way has high constitutional risks. If her position is wrong, and she has made an error of judgement about the depth of the crisis, she risks undermining the impartiality of the constitutionally based office of the attorney-general. If correct, her position may be justifiable by reference to very deep constitutional ideals, including principles of legality and the need to defend the rule of law and prevent a slide into tyranny.

While the constitutional foundations of the United States are still standing, there are worrying signs that the administration doesn’t share the commitment to their preservation that has generally been taken for granted among previous administrations. A heavy reliance on executive orders (which intensified under the Obama administration and, before that, the Bush administration) isn’t unprecedented, and nor are temporary suspensions of refugee admissions from certain regions (notably from Iraq, again under Obama). But Trump is governing in an unconventional manner, and it remains to be seen how far he is willing or able to push the boundaries of traditional democratic governance.

In a hyper-partisan and increasingly heterogeneous nation, traditional safeguards of congressional oversight also appear weak. It has been suggested that Trump is testing the boundaries of what will be tolerated, that this is the first step in a descent that may quickly challenge constitutional norms. Where the United States currently sits on the spectrum – at the point of hysterical grandstanding, legitimate concern, abstract speculation, indifference or wilful blindness – may only be judged by history.

Given all these caveats, an approach akin to the precautionary principle might be justified: that any risk of harm to the office of attorney-general is outweighed by the potential harm to the constitutional order. Such an argument may justify Yates’s approach.

The inescapable conclusion, though, is that the weighing of factors is a subjective exercise. It requires individual judgement, not only of the legality of the executive’s actions but also of the level of threat to constitutional institutions. The risk that individuals run in exercising that judgement is extraordinary: they will be lionised or condemned. And if they fail to exercise appropriate judgement, they can be subject to the criticism levelled at bureaucrats and officials who complacently continued their roles in regimes as they slipped into totalitarianism.

Lessons from history

The government lawyer is both an officer of the court and a public official. Following the abuses of the second world war, some of the fiercest debates among legal theorists concerned how judges, lawyers and public officials should respond to wicked legal regimes. Is there an obligation to obey immoral law? Should morally repugnant law even be regarded as law? The greatest theorists of the time – H.L.A. Hart, Lon Fuller, Ronald Dworkin – grappled with these questions for decades, with no clear resolution. Some problems are irreducibly complex, and it can be better to recognise such complexity. In hard cases, the law rarely provides neat answers; rather than search for certainty, we should recognise that difficult choices must be made.

The political theorist Hannah Arendt reaches such a position in her stinging critique of Adolf Eichmann, a senior bureaucrat in Hitler’s government, whose actions she labelled a complacent, banal evil. Arendt’s conceptualisation of Eichmann’s evil was that he was “thoughtless,” that he failed to exercise his own individual judgement about the wider impact of the orders he was given. Eichmann’s overriding ambition to further his own career blinded him to the evils of the government’s agenda. As Eichmann claimed during his trial, “The subject of a good government is lucky, the subject of a bad government is unlucky. I had no luck.”

Arendt refused to accept this excuse. The individual has a responsibility to exercise his or her own agency: to put aside his or her immediate career aspirations, to judge the orders of his or her government and, where necessary, to act accordingly. It is precisely when choices are difficult, when all possible paths are beset with brambles, that this responsibility to exercise agency matters most.

Of course, the sort of judgement that Arendt calls for has its own dangers. It can encourage – and provide a defence for – subjective, ideologically driven action. It can lead to serious consequences for those who misjudge and endanger the very constitutional system that they are seeking to save.

In this last respect, a danger exists beyond the possible damage to the impartiality and status of the office of the attorney-general. Public acts like Yates’s may (counterintuitively) strengthen Trump’s position, both in terms of his political position and, if it is correct that he has designs to undermine the constitutional system, in that respect as well.

During the campaign, Trump was highly effective in marginalising the concerns of critics by portraying them as an out-of-touch, establishment elite. Sally Yates, as an Obama appointment to the position of deputy attorney-general, straddles two elites, the law and the Washington bureaucracy. Venezuelan economist Andrés Miguel Rondón has argued that attempts to marginalise populists such as Trump and, in Venezuela, Hugo Chávez, may further polarise opinion and harden the views of those who elected them. He argues that even resistance founded on democratic principles is likely to backfire because it fails to recognise the polarisation that was the root cause of the democratic and constitutional threat. “In Venezuela, we fell into this trap in a bad way,” he writes. “We wrote again and again about principles, about separation of powers, civil liberties, the role of the military in politics, corruption and economic policy.”

In a similar vein, cultural historian Griselda Pollock, an expert on Arendt, warns that “although it looks wonderful that people are demonstrating, it’s actually rather frightening, because it’s generating a crisis situation in which, ultimately, the protection of law and order justifies the government in extreme measures. For some of us, it’s repeating the proto-fascist scenario.”

Whether Yates made the wrong choice, or should be applauded for a decision she felt integrity demanded, is not at issue here. What matters is that her choice has consequences, and will not necessarily lead to the outcome Yates desired. The more fully we understand those consequences, the better. Hard choices demand courage and responsibility, precisely because some consequences, while unknowable, are unpalatable. As the writer Ta-Nehisi Coates observed in a letter to his adolescent black son about the struggle that black people have fought for centuries in America, “And still you are called to struggle, not because it assures you victory but because it assures you an honourable and sane life.”

The responsibility to act

It is tempting at times like this to reach bold, clear conclusions – to lionise the martyr, to condemn the activist zealot, to decry the ideologue. The first instinct of lawyers is often to provide a clean answer to the question of whether a course of conduct was justified, to give a definitive view about what the law demands. An analysis of the orthodox understanding of the attorney-general’s role may well indicate that Yates fell into error. But an analysis of orthodoxy never tells the whole story. Law is alive; it changes and responds to the demands of the dynamic society it serves. In his very essence, Trump is a challenge to orthodoxy, and that challenge involves unpicking old certainties and assumptions. Where certainties fail, we must abandon the quest for clear answers, and applaud instead the embrace of responsibility.

We began by asking how we should expect those holding high government office, such as the attorney-general, to act when the stakes are so high. The answer is deeply complicated and necessarily involves subjective judgement on the part of our officials. It is their burden to judge and to decide, based on that judgement, the best course of action. That judgement needs to be informed by the orthodox understanding of their role in ordinary times, but should also recognise that orthodoxy must, in extraordinary times, sometimes give way. Ultimately, this will be a personal judgement, the cost of which will be borne by not only the individual but also the wider society. These realities should influence how we each act, and react, when faced with such challenges.

Perhaps the lesson to take from history is that there are risks challenging orthodoxy – but also risks in refusing to challenge. The greater threat is the denial of complexity. Yates was in an invidious position, balancing a respect for her office (and its inherent constraints) with concerns as to the integrity of constitutional norms and an understandable repugnance at an order at odds with the foundational aspirations of her nation. Her response may have polarised opinion, even strengthened Trump’s hand. But she took responsibility. It is not the rightness or wrongness that matters, but that embrace of agency.

Ultimately, the greatest strength of any populist is simplicity of message, the single absolute answer. Abandon responsibility, believe my truth and all shall be well. We shall be great (again). As Rondón shows, such an approach can’t be countered effectively by demonisation. The shouting right is not defeated by a shouting left. The only response to radicalism is moderatism, which demands of us all a personal responsibility to critique, reflect and listen. Yates’s actions challenge us in our own reaction to the Trump presidency, and remind us that it is the systemic embrace of diversity, complexity and personal responsibility that is the true foundation of a liberal democracy.

The next four years will not only challenge officials to think about how they fill their roles, but also challenge us to consider how we should best act. In Men in Dark Times, Arendt wrote of the promise of such action:

 Even in the darkest of times we have the right to expect some illumination, and that such illumination may well come less from theories and concepts than from the uncertain, flickering, and often weak light that some men and women, in their lives and their works, will kindle under almost all circumstances and shed over the time span that was given them on earth. •

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Uncomfortable times: prime minister Malcolm Turnbull (centre), immigration minister Peter Dutton (top left) and treasurer Scott Morrison leaving the House of Representatives after question time on 22 March. Sam Mooy/AAP Image

Uncomfortable times: prime minister Malcolm Turnbull (centre), immigration minister Peter Dutton (top left) and treasurer Scott Morrison leaving the House of Representatives after question time on 22 March. Sam Mooy/AAP Image