The Trump administration signals it is moving against opposition within the government bureaucracy
Today, resistance to Trump’s attempt to govern by degree began to meet resistance from within the US government itself. First, this morning, members of the US State Department leaked news that they were preparing a ‘dissent memo’ on the Administration’s executive orders concerning foreign relations, and most particularly the intensely controversial ‘extreme vetting’ order. Then this evening, Acting Attorney General, Sally Yates publicly announced that she would be instructing the Justice Department’s lawyers to not defend the President’s executive order from Friday that has caused such chaos at US airports, because of her fears that Trump’s order was not in fact legal. In both cases, these government officials were not being especially partisan, but fulfilling the obligations of their jobs. Its just been reported that Yates has just lost her job, and from statements made by Trump’s press secretary the hundreds of State Department officials who have signed the dissent memo have put their jobs at risk.
First the dissent memo. As first reported this morning by the legal affairs website Lawfare, a large number of Foreign Service officers and other diplomats drafted a dissent memo expressing absolute opposition to Trump’s executive order banning refugees and immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen from entering the United States. The State Department’s Dissent Channel, to which the memo was to be posted, is a mechanism for government experts on foreign policy to confidentially express policy disagreement. It was established in 1971 in response to problems identified in communication during the Vietnam War. The authors of a memo submitted through the Channel, which is open to all regular employees of the State Department and USAID, are supposed to be immune from any penalty or disciplinary action in response. Once a memo has been filed, the Secretary of State’s Policy Planning Staff must acknowledge its receipt within two working days and responded to within 60 days.
Here is a copy of the draft memo. Apparently, hundreds of foreign service officers were planning to be party to the dissent memo, but it is unclear how many actually signed on. The memo was assembled extraordinarily quickly which suggests that the State Department has become a centre of the resistance to Mr. Trump’s order.
However, later today, as reported by the New York Times, White House press secretary Sean Spicer told reporters: “These career bureaucrats have a problem with it? They should either get with the program or they can go.” Asked if he was suggesting that people resign, Mr. Spicer said, “If somebody has a problem with that agenda, that does call into question whether or not they should continue in that post.”
Spicer’s warning creates a dilemma for those officials who prepared the memo. They can go through with the memo, which will end up on the desk of Trump’s appointee at State, Rex Tillerson, or they can rely on the leak of the memo to make their point and hope their identities are not compromised. For there is seems likely, given recent events, that whatever Tillerson’s own proclivities, the White House will be seeking to root out such dissenters. The case of Acting Attorney General Sally Yates points directly to this.
Yates sent the following letter to Justice Department employees today:
On January 27, 2017, the President signed an Executive Order regarding immigrants and refugees from certain Muslim-majority countries. The order has now been challenged in a number of jurisdictions. As the Acting Attorney General, it is my ultimate responsibility to determine the position of the Department of Justice in these actions.
My role is different from that of the Office of Legal Counsel (OLC), which, through administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted. Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just.
Similarly, in litigation, DOJ Civil Division lawyers are charged with advancing reasonable legal arguments that can be made supporting an Executive Order. But my role as leader of this institution is different and broader. My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.
Consequently, for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.
In response to this Trump tweeted about Yates being an Obama appointee pursuing obstructionist tactics. Barely a couple of hours later she was removed from her position. Here is the text of the White House statement that removed Yates:
The acting Attorney General, Sally Yates, has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. This order was approved as to form and legality by the Department of Justice Office of Legal Counsel.
Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration.
It is time to get serious about protecting our country. Calling for tougher vetting for individuals travelling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country.
Tonight, President Trump relieved Ms. Yates of her duties and subsequently named Dana Boente, U.S. Attorney for the Eastern District of Virginia, to serve as Acting Attorney General until Senator Jeff Sessions is finally confirmed by the Senate, where he is being wrongly held up by Democrat senators for strictly political reasons.
“I am honored to serve President Trump in this role until Senator Sessions is confirmed. I will defend and enforce the laws of our country to ensure that our people and our nation are protected,” said Dana Boente, Acting Attorney General.
The language of the statement – of betrayal and weakness – demonize Yates in the same way that the Trump White House has tried to demonize all dissenters to their edicts. They are not expressing lawful and reasonable dissenting opinion: instead, they are traitors and ‘weak’ on the security of the state. This is not at all surprising, nor even outrage worthy. It is the entirely predictable response of an administration bent on autocratic control over the state, and by extension (at least in the minds of Trump’s inner circle) American society. The purges have begun.