“Who appointed you to the United States Supreme Court?” Louisiana Senator John Kennedy asked her, implying that she was required to obey Trump unless the Court voided he order. But the attorney general is not an executive flunky; she is the nation’s highest executive law officer. It is peculiarly her duty to make independent judgments about law.
The order had been approved as to “form and legality” by the Department of Justice’s Legal Counsel; nonetheless, on the night it was issued, Yates ordered DOJ lawyers to stand down, saying that she was not “convinced that the executive order is lawful.”
Texas Senator Ted Cruz asked, “In the over 200 years of the Department of Justice history, are you aware of any instance in which the Department of Justice has formally approved the legality of a policy, and three days later, the attorney general has directed the department not to follow that policy, and to defy that policy?”
“I'm not,” Yates admitted. “But I'm also not aware of a situation where the Office of Legal Counsel was advised not to tell the attorney general about it until after it was over.”
The White House had instructed low-level officials not to tell the chief law officer what they were up to.
In fact, said Yates, “not only was department leadership not consulted here and beyond department leadership, really the subject matter experts, the national-security experts, not only was the department not consulted, we weren't even told about it. I learned about this from media reports.”
The picture of the early days of the administration is of a tiny, toxic cabal, fundamentally dismissive of constitutional or legal constraint. Congressional security statutes, the established procedures of the executive branch, the legal responsibilities of cabinet secretaries, the legal duties of military and intelligence officials, were cobwebs to be brushed aside.
It’s not that, to the White House, law didn’t matter.
It’s that it didn’t exist.
The same is true with the Flynn matter. Yates learned that Flynn had lied to White House officials, including Vice President Mike Pence, about his contacts with Russian Ambassador Sergey Kislyak. When she brought this to the attention of White House Counsel Donald McGahn, she said, his response was to ask, “why does it matter to DOJ if one White House official lies to another White House official?”
Yates said she had to explain that lying about foreign contacts was a public matter: “We explained to him, it was a whole lot more than that and went back over the same concerns that we had raised with them the prior day, that the concern first about the underlying conduct itself, that he had lied to the vice president and others, the American public had been misled. And then importantly, that every time this lie was repeated and the misrepresentations were getting more and more specific, they were coming out. Every time that happened, it increased the compromise and to state the obvious, you don't want your national-security adviser compromised with the Russians.”