Tuesday, May 16, 2017

Sally Yates: In over her Head



Vincent J. Curtis

16 May 2017


Sally Yates is a do-gooding busy-body who never wonders whether what she is doing might be wrong.  Yates was in over her head in the position of (Acting) Attorney General while Senator Jeff Sessions was being delayed in his confirmation by Senate Democrats.

Yates is famous for three things: that she brought up the issue of Lt-Gen Michael Flynn, Trump’s incoming National Security Advisor, having allegedly lied about the contents of a conversation he had with Russian Ambassador Sergey Kislyak; for refusing to defend in court Trump’s first Executive Order concerning refugees, as was her responsibility to do; and then she failed to honorably resign in protest over an Executive Order, but instead engaged in insubordination towards the new president.

Now a couple of weeks ago, Senators Lindsey Graham (R-SC) and Sheldon Whitehouse (D-RI) under the aegis of the sub-committee on Crime and Terrorism of the Senate Judiciary Committee, held hearings that featured retired Director of National Intelligence James Clapper and Sally Yates.  It was in the course of her testimony that the inadequacies of Yates became manifest.

Both Clapper and Yates declared under oath before the committee that they were not the source of the leak that revealed an apparent discrepancy between what Lt-Gen Flynn told Vice-President Mike Pence about his December 29th, 2016 discussion with Ambassador Kislyak and what Pence was saying to the public about it.  Yates, apparently, had been circulated the transcript of that conversation which had been intercepted by the National Security Agency and in which Flynn’s name was “unmasked.” 

Normally, conversations of this type would have identified Flynn as “American No. 1”; but through the diligence of Obama National Security Advisor Susan Rice, Trump official’s names were being routinely unmasked in Rice’s vain search for evidence that would embarrass the incoming administration.  To ensure that embarrassing information leaked to the media, President Obama authorized wide circulation throughout the intelligence community of information of this type.

Having read the transcript, and in her breathy style of outrage, Yates testified that Mike Flynn had lied to Mike Pence, and that made Flynn a security risk.  So, she decided to report her thinking to White House Council Don McGahn.  Playing devil’s advocate, McGahn inquired as to the Department of Justice’s interest in the matter: what does it matter to Justice that one White House official lies to another White House official?  Yates replied in her characteristic breathy manner that it was the Vice-President that was being lied to.  Since the Russians undoubtedly have a transcript of their own, they could hold that as blackmail over Mike Flynn.  With the Vice-President saying one thing, and an alleged Russian transcript saying another, somebody could get mighty embarrassed, she feared.  Flynn was therefore subject to blackmail, she argued.

McGahn appeared unmoved, but pressure was building in the media concerning Flynn’s conversation and Flynn eventually resigned.

In this matter, Yates was raising matters of concern that were outside her domain of responsibility and expertise.  That Flynn would be subject to blackmail on account of some theoretical conditions that were not yet prevalent is not her judgement to make.  Nevertheless, being the good girl-scout she is, Yates got herself all exercised over Mike Flynn, with who knows what consequences among those around her.

The second realm of inquiry of Sally Yates concerned her refusal to defend in court Trump’s Executive Order concerning refugees from six countries.  As a result, the EO went undefended and was stayed.  The EO had been vetted for form and legality by the Office of Legal Council, a department of subject matter experts within the Department of Justice.  Thus, Sally Yates’s own experts held that the EO was at least legal and constitutional, and certainly arguable in court.

Yates disagreed.  She believed that looking beyond “the face of the order” there was a violation of the constitution concerning religious discrimination.  She held that because Trump had said certain things on the campaign trail, they must be read into the EO.  This sort of reasoning, called “legislative history,” is a school of legal thinking that the late Justice Antonin Scalia warned against.  This is how Sally Yates’s reasoning is refuted easily:

The law only has a “face.”  What is written on the page is what the law is.  If on the campaign trail Donald Trump promised to do ‘A’ and in issuing the Executive Order, he orders that ‘B’ be done, then ‘B’ is what is actually ordered, not ‘A’  Trump may have an issue with his supporters, but not with the lawyers, who have been ordered to do ‘B’.  Yates argues that, no, that ‘B’ on the page ought to be read as ‘A’ because that is what Trump allegedly promised on the campaign.  ‘B’ is ‘A’ according to Yates because Trump said he would do ‘A’, not ‘B’.

Clearly this form of reasoning cannot long stand scrutiny, but Yates clearly believed it in this case.  If a court reads ‘B’ on the page, it cannot rightfully rule on anything other than that ‘B’ on the page.  If a court rules against ‘B’ on the basis that the page really contains ‘A’ then you have to wonder at the sanity of the judge.

The second fallacy Yates labored under concerned the constitutionality of discriminating on the basis of religion.  Yates believed that the EO was intended to exclude Muslims from immigrating to America, despite the fact that the EO referred to countries and not religions, nor that about fifty other Muslim majority countries were not on the list.  Anyhow, Yates feels that these refugees had rights under the Constitution not to be discriminated against on the basis of their religion.

Here is how Yates is easily refuted again:  Only American citizens living in America enjoy the full panoply of rights in America.  Aliens resident in America enjoy some, but not all legal rights.  Aliens have a right of due process, not to be subject to cruel and unusual punishment, and so forth.  They do not have a right to vote, or to keep and bear arms, for example.  Aliens not resident in the United States have no legal rights at all under the Constitution because they are not Americans and, not being present in US territory, they are not subject to US law or to the jurisdiction of US courts.  This reasoning is not hard to follow, but Yates didn’t follow it.

Yates decided that her reasoning was superior to those of her subject matter experts, and on the basis of her fallacious reasoning refuted above she then declined to defend the EO in court, though there was a case to be made and decided - by judges.

Now we come to her third, and for her legal career, fatal mistake.  She ought to have informed President Trump of her feelings and resigned.  That was the proper, honorable, and righteous thing to do.  But she did not. Instead she preened the entire weekend about her defiance of Trump, basking in the glow of favorable media attention; and he fired her for insubordination, as he ought.

Clearly, Yates was in way over her head as (acting) Attorney-General.  She was incompetent, misguided, and entirely at sea as to her responsibilities.  Now, she is a Democrat heroine.
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