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Let me start by saying that I share the moral sentiment behind Sally Yates’s order to the Justice Department not to defend Trump’s Executive Order. Indeed, given everything I have said on the subject of the order, I should be—as Jack Goldsmith notes that many commentators will be—“cheering wildly for Yates” and her stand against Trump, as she rides off into the sunset on the back of a White House statement that reads like it was written by a petulant three-year old.
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The problem is that Jack is right. And notwithstanding my sympathy for Yates’s moral and policy position, her action is simply not defensible and not in keeping with the traditions of the Justice Department. What’s more, she had at her disposal a means of giving voice to her (quite correct) view that Trump’s order is neither right nor just, was born in some very sinful original sins, and undoubtedly has a great many unlawful applications. This proper means of expressing these sentiments would have been fully in keeping with the traditions of the department and would have left Yates no more unemployed than the evening has, in fact, done.
Yates should have resigned.
Everything she said in her statement amounts to the following: I disagree with what the president did, I don’t trust his motives for doing it, and I think opposing litigants may have some very strong arguments. I agree with all of those points. And they would have made up just as rip-roaring a letter of resignation—one that would have done her and the department honor—as they made up an unconvincing order to the department. Instead, she took a step that amounted to frank insubordination and amply justified, indeed necessitated, her removal, a step which actually muddied the moral waters of our current situation. And she emerged with no more job protection than had she orchestrated her own exit in a fashion that kept her on the right side of propriety.
Yates had a bad hand, yes, but she also played it badly.
Score one for Trump.