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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