Byko: Yates chose political martyrdom, deliberately

Private Prisons
Deputy Attorney General Sally Yates was fired Monday night.

It seemed like a replay of the nightmare Nixon years when the president fired the Watergate independent special prosecutor after Attorney General Elliot Richardson and Deputy A.G. William Ruckelshaus resigned rather than do it. 

On Monday, President Trump fired acting Attorney General Sally Yates for insubordination.

It was like he was re-creating his starring role in “The Apprentice” -- “You’re fired!” -- but he was within his rights  because the attorney general is the government’s lawyer.

Like Richardson and Ruckelshaus, Yates defied the president, who is her client.

Unlike Richardson and Ruckelshaus, who resigned rather than take action they thought was illegal, Yates -- an Obama political appointee who agreed to stay on -- deliberately chose political martyrdom. She ordered the Department of Justice to not defend Trump’s order temporarily closing the nation’s borders to refugees and people from seven predominantly Muslim countries.

Trump did not seek Yates’ advice before issuing his order, and maybe he should have. Acting like the whirling dervish  CEO he always was, Trump didn’t even share it with some of his top advisors, but he did get a favorable opinion from Justice’s office of legal counsel, which approved it for “form and legality.” Yates took it upon herself to overrule that office.  

Yates’ directive to her staff was based partly on law, but also on her   personal  sense of “what is right.” Deciding “right” is not in her job description.  

The courts eventually will  decide on the legality of Trump’s order and courts already have stayed portions of it. That should hearten those quaking with the fear they are living in a Trump fascist dictatorship.

Yates’ elevation of her personal morality over the law reminded me of former Pennsylvania Attorney General Kathleen Kane’s edict in 2013 that her office would not defend the Pennsylvania law banning gay marriage.

Her  personal  belief was that the law was unconstitutional, which would matter only if she were a judge.  That it later was knocked down by the Supreme Court is immaterial. It could have just as easily been upheld.

As attorney general, Kane’s sworn duty was to defend her client -- the Commonwealth of Pennsylvania -- whether she liked its law or not. Criminal defense attorneys, for example, must provide the best defense for their clients whether they believe them to be innocent or not.

It’s the way the system works. You are hired to do a job, you do it. SEPTA drivers drive the routes they are given. If they don’t like the route, they can quit. They can’t decide to simply pick another route or not drive at all.

Inserting personal morality over the law leads to a snake pit because morality is subjective.

When Pennsylvania’s marriage law was being challenged, Montgomery County Register of Wills Bruce Hanes started handing out marriage licenses to gay couples because his personal morality told him it was the right thing to do.  

The gay community and others hailed him as a hero, even though he was breaking the law.

I asked his supporters how they would feel if an elected official who felt the opposite acted on personal morality.

It didn’t take long for exactly that to happen.

Kim Davis, clerk of Rowan County, Kentucky, after gay marriage was the law of the land, refused to issue marriage licenses to gay couples because it conflicted with her personal religious principles. She was hailed as a hero by religious fundamentalists and others.

The difference between Davis and Hanes was that he stopped when ordered to. Davis went to jail for her beliefs.

Both Hanes and Davis were wrong for the same reason -- they nullified the law.

Civil society, orderly society, is based on a collective agreement that the law is impartial and protects us all. When a law fails to do that, we have the means to change it in the courts.

The law is not an ala carte buffet where you get to select only what you like -- yes to the kung pao chicken, no to the garlic beef.

When each of us is a law unto ourselves, the concept of “law” becomes meaningless.