Last January, after Sally Q. Yates decided that she couldn’t defend President Trump’s first executive order on travel and immigration, she faced another difficult choice. Should she resign her post as Acting Attorney General—or stay and refuse the president?
The order, which banned entry for 90 days for citizens of seven Muslim-majority countries and indefinitely blocked Syrian refugees, took Yates by surprise. But once she’d had a chance to think it through with her team, she knew she couldn’t ask Justice Department lawyers to go into court and argue that the order had nothing to do with religion—there was evidence, she concluded, that it did.
“I remembered in my confirmation hearing (being asked) repeatedly: ‘If the president asks you to do something unlawful or unconstitutional, will you say no?’” Yates told the University of Chicago Law School community last week. “They didn’t ask me, ‘Would you resign?’—they asked me, ‘Would you say no?’”
And so she stayed, refused to defend the order—and was almost immediately fired by the president.
Sitting before a packed Law School classroom nearly 10 months later, Yates recounted the experience, describing how her team learned about the order from a newspaper story just a week after Trump’s inauguration and how she felt when the hand-delivered termination letter arrived from the White House Office of Presidential Personnel three days later. “I certainly was not surprised,” Yates said of her dismissal. “But I’d be less than honest if I didn’t say that it still felt like a punch in the gut.”
Yates’ November 20 appearance as the Ulysses and Marguerite Schwartz Memorial Lecturer was structured as a conversation with Geoffrey R. Stone, the Edward H. Levi Distinguished Professor of Law. During the event, she advocated for criminal justice reform, offered advice to future lawyers, and discussed her career as a federal prosecutor. But much of the discussion focused on her well-publicized concerns that Trump has been attempting to destroy America’s rule of law, with Yates carefully distinguishing typical partisan debate from what she sees as “significant” threats to the norms undergirding America’s legal system.
“I’m not talking about policy differences,” Yates said. “You have to anticipate that there will be policy changes from one administration to the next. And while I certainly disagree with a number of the policy positions in the Department of Justice now, I’m not talking about those. What I’m talking about is the independence of the Department of Justice.”
Every administration since the Watergate era has allowed the Justice Department to work largely free from presidential interference, said Yates, a 27-year DOJ veteran who spent much of her career in the US attorney’s office in the Northern District of Georgia before becoming Deputy Attorney General in 2015. The White House might discuss broad policy, she said, but it has been widely understood that the justice system relies on its independence from political interference in specific cases and investigations—both to ensure fairness and to maintain public trust.
“Our whole system falls apart when the citizens of our country lose confidence in the justice system and the Department of Justice,” Yates said. “But almost from the very beginning [of the Trump administration] we’ve seen breaches of these rules and norms from the White House.” She cited a list of concerns, including Trump’s “relentless calls” that the FBI investigate his former opponent Hillary Rodham Clinton, his tweets calling for the death penalty for a New York City terror suspect who hadn’t yet been charged, and allegations that Trump pushed then-FBI Director James B. Comey to drop the investigation of ex-national security adviser Michael Flynn and asked Attorney General Jeff Sessions to consider dropping charges against former Arizona sheriff Joe Arpaio, whom Trump later pardoned.
“After the first time I thought, well, maybe he doesn’t know, and maybe people will explain to him that there’s this important norm that the White House, and specifically the president, does not get involved in these things,” she said, noting that attempts to influence the DOJ are damaging even when they aren’t successful. “But it’s happened repeatedly.”
Our rule of law, she told students, is what “separates us from authoritarian regimes where … executives … use the law to go after political enemies or to protect themselves or friends.”
During the event, Yates shared thoughts about Special Counsel Robert Mueller, whom she has known for years. “He won’t be influenced by pressure [from the White House],” she said, “but he won’t try to drum up a case that doesn’t exist either.” She also told listeners that, while she didn’t want to “overinflate” her influence, she hopes to make the most of the attention she’s received this year. That includes advocating for issues like sentencing reform for drug offenses, she said.
“Our prison population has exploded 800 percent just since the 1980s, and we’re spending between a fourth and a third of the entire DOJ budget on [the Bureau of Prisons],” she said. “This is … drawing resources away from the most serious crimes and [from our ability to] invest in prevention and prisoner re-entry, which is essential for safe communities. We’re also undermining the public’s perception of the fairness of our criminal justice system by having too many people in prison who are serving sentences that are longer than necessary … and [we’re having a disproportionate impact] on African Americans in our country.”
She also encouraged students to take their own roles as future lawyers seriously, cautioning them not to reject public service even if they disagree with the current administration— “Your government needs you,” she said—and urging them to help educate the general public.
“If you’re not a lawyer, or not steeped in DOJ (practices), you might not know that the president shouldn’t be directing the Department of Justice whom to prosecute or whom not to prosecute,” she said after a student asked what can be done to “repair what has frayed.”
There are many ways to speak out, too, she told another student, who asked for guidance on knowing when to “stand up and when to go with the flow.” Sometimes it can mean reaching out to others who can help think through a problem or bring something to light, she said.
“When you see something happening that you [think] is wrong—and that’s different from something that you just don’t think will be effective—I encourage you to speak up,” she said. New lawyers, she added, should show some deference to those with more experience and information. “But (even then), you have a strong gut and a compass and that fresh perspective can be really helpful.” In the end, she encouraged students to be courageous in standing up for what they think is right.