The Deep Constitutional Thinking Of Sally Yates

Sally Yates was the high-ranking hold-over Justice Department official who briefly became Acting Attorney General in January while Jeff Sessions was awaiting confirmation.  Yates then used that perch to issue an order to Department lawyers not to defend new President Trump's Executive Order on immigration in court.  She quickly (and appropriately) found herself a private citizen.  I covered that situation in a February 1 post titled "The Bureaucrats Think That They Don't Answer To The President."  Now Yates returns with an op-ed in the New York Times over the weekend, setting forth her deep constitutional thought on the independence of the Justice Department from presidential control.  The headline is "Protect the Justice Department From President Trump."  

As I have pointed out multiple times, there is nothing complicated about the constitutional law on presidential control of the Justice Department.  Article II, Section 1 of the Constitution places all of the executive power of the federal government in the President:  "The executive power shall be vested in a President of the United States of America."  The Justice Department is an executive agency, and therefore reports to the President in every respect.  That of course does not mean that it is a good idea for the President to get personally involved in day-to-day prosecutorial decisions; but he is perfectly entitled to do so if he wants.  And he certainly has final say on all policies of the Department.

Yates has a different view.  Here are a few key quotes from her op-ed:

The president is attempting to dismantle the rule of law, destroy the time-honored independence of the Justice Department, and undermine the career men and women who are devoted to seeking justice day in and day out, regardless of which political party is in power. . . .  

The Justice Department is not just another federal agency. It is charged with fulfilling our country’s promise of equal and impartial justice for all. As an agency with the authority to deprive citizens of their liberty, its investigations and prosecutions must be conducted free from any political interference or influence, and decisions must be made based solely on the facts and the law.  To fulfill this weighty responsibility, past administrations, both Democratic and Republican, have jealously guarded a strict separation between the Justice Department and the White House when it comes to investigations and prosecutions. While there may be interaction on broad policies, any White House involvement in cases or investigations, including whom or what to investigate, has been flatly forbidden.

Yates doesn't trouble herself to give us a citation of something in the Constitution that supports her position.  Nor does Yates inform us of the origin of what she calls the "time honored" "strict separation between the Justice Department and the White House" that has supposedly been followed by "past administrations, both Democratic and Republican."  (According to this February 2017 post from Jane Chong at Lawfare, the existence of this separation as anything rising to a formal policy only goes back to the Jimmie Carter administration, and has always been riddled with exceptions.)  If we're going to talk about "dismantl[ing] the rule of law," how about the rule that says that every four years the people get to elect a new guy, with policies different from the prior guy, and the new guy gets to implement his policies?  

Sally's view, of course, is that Justice Department activities are completely neutral and apolitical, so the mere President has no legitimate interest in what is going on.  The dedicated career people are just "seeking justice"!  Can we really let this crude boor meddle in that sacred task?

Just in case you have the exceedingly naive impression that the lawyers at the Department of Justice really are neutral and apolitical, and just "seeking justice," perhaps it is time for a brief history lesson focusing on the years of the Obama administration.  Here goes:

  • First, Jonathan Swan at The Hill on October 26, 2016, helpfully did a comprehensive analysis of political contributions made by bureaucrats in the various federal agencies in the 2016 election cycle.  Here's the result for the Justice Department:  “Employees of the Department of Justice, which investigated Clinton’s use of a private email server while she was secretary of State, gave Clinton 97 percent of their donations. Trump received $8,756 from DOJ employees compared with $286,797 for Clinton."
  • The IRS scandal came to light just over four years ago, in May 2013, shortly after Barack Obama's re-election.  If you're not remembering it, that's the one where it was revealed that the IRS had been systematically stalling the tax-exempt status of conservative and tea party groups during the 2012 election cycle, thereby hampering the ability of those groups to oppose the President's agenda.  The head of the IRS group in the middle of the scandal, one Lois Lerner, took the Fifth before Congress, and then retired.  The Justice Department investigation?  I can't seem to find anything about it.  I also can't seem to locate Yates's op-ed calling for a Special Prosecutor in the matter.
  • How about the series of ridiculous phony prosecutions of the big banks in the aftermath of the financial crisis?  For a couple of my representative posts, see here and here.  Do you think there may have been anything real to these?  Things like:  blaming Citi and BofA for Fannie's and Freddie's losses on mortgages; criminally prosecuting JP Morgan for failing to catch Bernie Madoff, when the SEC had far more information and still completely missed it; criminally prosecuting JP Morgan for not catching its "London whale" trader; and so on and on.  Of course, none of the cases ever went to trial, and the banks agreed to one multi-billion dollar settlement after the next.  The total collected in fines and settlements?  About $110 billion.  But here was the ultimate point, from Kimberly Strassel in the Wall Street Journal, December 3, 2015 (quoted at, which is not behind paywall):

[T]he Justice Department . . . for 16 months has engaged in a scheme to undermine Congress’s spending authority by independently transferring dollars to President Obama’s political allies. The department is in the process of funneling more than half-a-billion dollars to liberal activist groups, at least some of which will actively support Democrats in the coming election.  It works likes this: The Justice Department prosecutes cases against supposed corporate bad actors. Those companies agree to settlements that include financial penalties. Then Justice mandates that at least some of that penalty money be paid in the form of “donations” to nonprofits that supposedly aid consumers and bolster neighborhoods.

The Justice Department maintains a list of government-approved nonprofit beneficiaries. And surprise, surprise: Many of them are liberal activist groups. The National Council of La Raza. The National Urban League. The National Community Reinvestment Coalition. NeighborWorks America (which awards grants to left-leaning community organization groups, and has been compared with Acorn).  This strategy kicked off with the $13 billion J.P. Morgan settlement in late 2013, though in that case the bank was simply offered credit for donations to nonprofits. That changed with the Citigroup and Bank of America settlements, which outright required $150 million in donations. The BofA agreement contains a provision that potentially tees up nonprofit groups for another $490 million.

If they were right-leaning groups, they couldn't even have gotten a tax exemption!  This is what "seeking justice" means to Yates.  Again, I can't seem to find her op-ed calling for a Special Prosecutor.

  •  Regular readers here are surely familiar with my now-sixteen-part series, "The Greatest Scientific Fraud Of All Time," which focuses on tampering with world temperature records by federal agencies NASA and NOAA.  You might ask, why doesn't Congress just subpoena the records from those agencies and subject them to independent audit?  You must be forgetting Part XIII, where I pointed out that in October 2015 the House Committee on Science, Space and Technology did indeed subpoena these very records.  And NOAA flatly refused to produce anything.  And then, the Justice Department flatly refused to enforce the subpoena.  Yup, they're just neutral, apolitical lawyers "seeking justice."
  • As an example of one of those neutral apolitical Justice Department prosecutors, consider the recent ex-U.S. Attorney for the Southern District of New York, Preet Bharara.  His prior job was chief counsel to Senator Chuck Schumer -- you can't get much more apolitical than that!  I have previously covered some of Bharara's efforts, including at this post titled "Good Riddance To Preet Bharara."  His tenure as U.S. Attorney is fairly characterized as extreme grandstanding with a strong political tint.  As examples, Bharara made it a priority to take down the Republican Majority Leader of the New York State Senate, Dean Skelos, for the alleged crime of leaning on friends to give his son a little-work job.  (Skelos was convicted, but that conviction is on appeal, and on extremely thin ice in light of the Supreme Court's reversal in the McDonnell case.)  Meanwhile Bharara could not have been less interested in the fact that Chelsea Clinton got a little-work job paying about ten times as much at NBC News, while her mother was Secretary of State.
  • And you could go on with this literally all day.  Fast and Furious?  The New Black Panther Party?  Whatever!

For reasons I have previously stated, I agree that it is generally a good idea for the President to keep out of decisions on whom to prosecute and not to prosecute.  I am also not standing up for President Trump's recent attacks on Attorney General Jeff Sessions.  However, it is absolutely clear that the Justice Department was thoroughly politicized under Barack Obama, and President Trump has every right to take it back.  The career lawyers are completely an arm of the Democratic party and its agenda, and if most or all of them were fired, that would be a good thing as far as I'm concerned.