The Legend of Sally Yates Will Never Die
Sally Q. Yates is an unlikely celebrity. A few months ago she was, in the eyes of the general public, little more than an anonymous government bureaucrat. But then, on Jan. 30, Donald Trump fired her for ordering Justice Department lawyers not to defend his travel ban in court. Overnight, the former prosecutor from Georgia turned into an icon of the resistance.
Praise for Yates came from some major figures on the left, like Obama-era attorneys general Loretta Lynch and Eric Holder. It also came from the internet, where hashtags like #ThankYouSally proliferated alongside memes that positioned Yates as a savior of the republic. (Here’s one comparing her to Katniss Everdeen from The Hunger Games.) Since then, the Yates legend has grown steadily, and will reach a milestone of sorts on Monday, when she is scheduled to testify before a Senate subcommittee investigating Russian interference in the 2016 election. Her appearance marks the first time that Yates will speak publicly about the Russia scandal—another fraught storyline she became central to when it was reported in February that, shortly before her firing, she informed the White House that Trump’s national security adviser, retired Lt. Gen. Michael Flynn, had engaged in improper discussions about sanctions with the Russian ambassador to the U.S. before Trump took office.
Many members of Yates’ new fan club will be cheering her on as she answers the senators’ questions on Monday. But there will be skeptics watching as well, including some prominent figures in the legal community who reacted to Yates’ move against Trump in January with ambivalence and unease. Indeed, even as Yates received vocal support from DOJ allies for her defiance of Trump—former Solicitor General Donald Verrilli said her decision had served to protect “the integrity of the Department of Justice”—she also provoked criticism from legal thinkers who viewed her refusal as an ineffective, unprofessional tantrum at best and a politically inflected act of insubordination at worst. “[N]otwithstanding my sympathy for Yates’s moral and policy position,” wrote Brookings Institution senior fellow Benjamin Wittes on the Lawfare blog, “her action is simply not defensible and not in keeping with the traditions of the Justice Department.”
One key question, now that Yates is poised to play a decisive role in the Russia investigation, is whether her credibility as a neutral source of intelligence has been undermined in the eyes of conservatives by her newfound status as a darling of the left. If it has, that point of view has yet to gain any traction among her admirers, who have integrated Yates’ rebuke of the president into the founding myth of the anti-Trump opposition.
To understand why Yates became the sensation that she is today, it’s worth remembering that on Jan. 30, the new administration had been in power for 10 extremely tumultuous days. Trump’s executive order banning travel from seven majority-Muslim countries had just been implemented, and passengers flying from the Middle East—even American green card holders—were being interrogated in airports and forced to take return-flights to their countries of origin. And while lawsuits against the travel ban had been filed and protests were taking place at major airports, the courts had yet to weigh in, and it was unclear what, if anything, could be done to stop Trump’s executive order from continuing to disrupt people’s lives.
This was the environment Yates stepped into as the acting head of the Justice Department, when she sent a one-page letter to department lawyers indicating that she did not believe the executive order was “wise or just.” In the letter, Yates said she wasn’t “convinced” that the ban was lawful, and declared that the Justice Department would therefore not stand behind it as long as she was in charge. Hours after the letter became public, Yates was fired. In a statement, the White House accused her of having “betrayed” the Justice Department and announced that she would be replaced by a (presumably more docile) U.S. attorney from Virginia.
The visceral rush of seeing someone—especially a woman—telling Trump “no” gave worn-out and frightened liberals one of the first moments of hope that Trump’s young, chaotic presidency had offered them. That Yates’ act of rebellion had been punished with immediate dismissal only heightened liberal excitement. As soon as news of the firing broke, commentators were comparing it to the “Saturday Night Massacre” of 1973, when Richard Nixon’s attorney general and deputy attorney general both resigned rather than fire the Watergate special prosecutor.
The reaction online was instantaneous. On Twitter, users called Yates “bae” and hailed her as a “goddamn American hero.” Celebrity blogger Perez Hilton wrote, “Sally is on the right side of history; and we have a feeling she’ll come out of this hot mess on top.” People called on her to run for governor. Before long, there was merch: coffee mugs with Yates’ face on them, T-shirts endorsing her for president, dorm-room posters that command, “In a World Full of Paul Ryans Be a Sally Yates.” At least one person named a cat after her.
Yates’ rapid rise as a public figure received a turbo-boost on Feb. 13, when the Washington Post revealed that, in her capacity as acting attorney general, she had warned the White House about improper contacts during the campaign between Gen. Flynn and the Russian ambassador to the U.S. According to the Post, Yates informed White House Counsel Don McGahn that Flynn had been deceptive about his communications with the ambassador and was therefore vulnerable to being blackmailed by the Russians. Despite this conversation, Flynn had been allowed to retain his position as national security adviser; it wasn’t until nearly three weeks later, after the Post published its report, that the Trump administration felt compelled to push Flynn out.
Yates was originally scheduled to break her silence on Flynn and Russia in March, when she was invited to testify before a House Intelligence Committee investigating the scandal. When her appearance was abruptly canceled by the committee’s then-chairman Devin Nunes, many concluded that the White House was trying to block Yates from telling the world what she knew. Her cheerleaders—many of whom worked in the Capitol—called on Congress to “let her speak.” Esquire’s Charlie Pierce wrote a widely circulated piece titled, “Do Not F*ck With Sally Yates.”
The fervor with which Yates has been embraced since her firing has represented a remarkable turn of events for a government lawyer who had been unknown on the national stage for most of her 27-year career in the Justice Department. During that time, Yates cultivated a reputation as a disciplined and tough prosecutor who did not let politics influence her professional decision-making. Though it has never been a secret that she is a Democrat—not only was she an Obama appointee, but her husband, Comer Yates, ran unsuccessfully for Congress as a Democrat twice—her career in Washington has been built upon a solidly nonpartisan record.
As a U.S. attorney in Georgia, Yates was best known for her work on two cases: One sent Olympic Park bomber Eric Rudolph to prison for life, while the other was a years-long bribery investigation involving top Atlanta politicians and businessmen. The bribery investigation resulted in a dozen people going to prison, including two councilmen and the city’s long-serving Democratic mayor, Bill Campbell. And while it did not come without political complications—the case became racially charged because some of the bribery accusations centered on a program aimed at increasing the number of minority-owned businesses in Atlanta’s Hartsfield-Jackson airport—the tenacious work Yates put into the case established her as a respected litigator and helped propel her to become the first female U.S. attorney for the Northern District of Georgia.
Yates was confirmed easily as the deputy attorney general under Loretta Lynch in January 2015, receiving a set of warm bipartisan endorsements at her confirmation hearing from Democratic Rep. John Lewis and Republican Sen. Johnny Isakson. For the next two years, Yates made her views known on a range of law enforcement issues. She testified in support of criminal justice reform and shorter sentences for nonviolent drug offenders. Later, she signed a memo directing the federal government to phase out the use of private prisons. She argued that technology companies that manufacture devices protected with digital encryption shouldn’t be allowed to simply ignore government warrants.
None of the positions Yates took was splashy enough to make her into a household name. Indeed, were it not for her explosive final day serving under Trump, her primary legacy would likely be what’s known in legal circles as the 2015 “Yates memo,” in which she instructed federal prosecutors working on corporate criminal cases to pursue not just companies but also individuals who might be responsible for wrongdoing. As Law360 explained, the Yates memo “was issued after numerous commentators criticized the DOJ for failure to bring individual prosecutions in the wake of the 2008–2009 financial crisis,” and was intended to put pressure on “companies to provide all the facts about individual misconduct” when under investigation. The memo was controversial among lawyers, because it seemed to demand that companies reveal privileged communications in order to receive credit for cooperating with the Justice Department.
It’s safe to say that most if not all of what Yates did before her Jan. 30 letter has now become a footnote in the story of her career. And yet, for all the public adoration she has been showered with, Yates has also been hit with some stinging rebukes for the way in which she ended her Justice Department career. Alan Dershowitz wrote that if Yates didn’t agree with the order, “she should have resigned in protest” instead of forcing the president to dismiss her. Jack Goldsmith, who served in George W. Bush’s Office of Legal Counsel, pointed out in an essay for Lawfare that the letter made it sound like Yates hadn’t definitively concluded that the travel ban was illegal—only that she wasn’t sure. Goldsmith argued that this was good enough to resign over; but it didn’t give Yates the right to pit the agency under her command against a president she had agreed to serve.
Goldsmith and Dershowitz do not necessarily represent the mainstream view in the legal field, and there are plenty of lawyers who believe her actions were consistent with her duties as attorney general. For Yates’ supporters, objecting to her actions on the basis of somewhat abstract—if important—legal principles is akin to criticizing Captain Sully for potentially violating FAA protocol by landing his plane on the East River. By confronting Trump with a moral objection—if not an airtight legal argument—Yates became one of the first people in American government to try to thwart him. And in doing something some legal experts have condemned as a violation of norms and tradition, she validated the idea that Trump was not a normal or traditional president and could not be interacted with as if he were.
The fact that, up until her moment in the spotlight, Yates was known as a politically restrained career civil servant—as opposed to an ideological firebrand—is a reminder that, under the Trump presidency, one needn’t be a radical to feel driven to dissent in an extreme and arguably unprecedented way. And while Yates’ testimony on Monday is unlikely to live up to the liberal fantasy that has sprouted up around her, it’s safe to say that her legacy—of delivering hope to an utterly terrified progressive movement at a point when Trump looked like he might actually deliver on fears of a dictatorship—is already secure. The cat’s name is not going to change.
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