Yates could not be reached for comment on Trump’s attack, but a person close to her called the criticism from the White House absurd.
“That’s preposterous. Everyone knows she’s a career prosecutor for nearly three decades, well-respected by serious members of both parties,” said the Yates associate, who asked not to be named. “That dog won’t hunt.”
A Trump aide accused Yates of seeking attention.
“She knew what she was doing and she knew she’d be fired. She just wanted the publicity,” said the aide, who spoke on condition of anonymity.
Despite sharp criticism of the wisdom of Trump’s move, there appears to be little doubt that under federal law Trump has legal authority to install any Senate-confirmed member of the Justice Department as the acting attorney general.
Yates, who was the No. 2 official at the department before Trump’s swearing-in and has been running the department since that time at Trump’s request, sent a memo Monday saying she doubts the wisdom and the legality of the directive blocking immigration from seven majority-Muslim countries.
“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,” Yates wrote in a memo released by the department earlier Monday.
“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,” the acting Justice Department head said. “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.”
Some lawyers warned removing Yates could disrupt other department operations, including surveillance aimed at suspected terrorists. However, two officials said Monday night that as a Senate-confirmed official Boente could sign such orders.
Trump’s first reaction to Yates’ move came in a tweet earlier Monday evening.
“The Democrats are delaying my Cabinet picks for purely political reasons. They have nothing going but to obstruct. Now have an Obama A.G.,” Trump wrote, apparently accusing Yates of blocking his agenda. He did not complete the thought.
Trump’s removal of Yates had echoes of the so-called “Saturday Night Massacre” in 1973, when Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus both resigned rather than comply with President Richard Nixon’s order to fire Watergate Special Prosecutor Archibald Cox. Solicitor General Robert Bork assumed the role of acting attorney general and complied with Nixon’s demand. The dismissal of someone who was investigating Nixon further undermined his credibility amid the burgeoning Watergate scandal.͝
Speaking on the Senate floor Monday night, Senate Minority Leader Chuck Schumer hailed Yates and dubbed her firing a “Monday night massacre.”
“She was fired because she would not enact, pursue the executive order on the belief that it was illegal, perhaps unconstitutional,” the New York Democrat said. “It was a profile in courage. It was a brave act and a right act.”
Schumer blasted the executive order as “evil” and faulted Trump aides for failing to clear the directive with relevant government agencies and top Cabinet officials. He also warned darkly of danger for the the country if the Trump continues to act rashly.
“You just can’t sit down, Twitter something out, then think, ‘OK, let’s enact it.’ This is a complicated country, and when you do something as major as what the president proposed in his executive order, you got to think it through. You got to talk to people,” Schumer said. “How can you run a country like this? … If this continues, this country has big trouble.”
The top Democrat on the House Judicial Committee, Rep. John Conyers of Michigan, also drew parallels to Nixon’s actions more than four decades ago.
“President Trump has commenced a course of conduct that is Nixonian in its design and execution and threatens the long-vaunted independence of the Justice Department,” Conyers said in a statement. “If dedicated government officials deem his directives to be unlawful and unconstitutional, he will simply fire them as if government is a reality show. I call on my colleagues, regardless of party, to condemn this executive order and the reckless firing of our chief law enforcement officer. “
There was little reaction from Republican lawmakers Monday night , but Sen. Ted Cruz of Texas made it clear he backed Trump’s move.
“It is fitting–and sad–that the very last act of the Obama DOJ is for the acting AG to defy the newly elected POTUS,” Cruz wrote on Twitter.
Boente was sworn in at about 9 p.m. Monday, according to a White House official who did not immediately provide details on who carried out the ceremony.
Boente quickly reversed Yates’ DOJ memo Monday night on Trump’s executive order on immigration, saying the order was on solid ground.
“Based upon the Office of Legal Counsel’s analysis, which found the Executive Order both lawful on its face and properly drafted, I hereby rescind former Acting Attorney General Sally Q. Yates January 30, 2017, guidance and direct the men and women of the Department of Justice to do our sworn duty and to defend the lawful orders of our President,” Boente said in a statement.
Boente, who has served as a Justice Department attorney for more than 30 years, was nominated by President Barack Obama as the U.S. Attorney for the Eastern District of Virginia in 2015 and confirmed later that year. He has embraced his new role leading the department, according to a statement issued by the White House.
“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,” Boente said. His statement did not address what stance he plans to take on Trump’s executive order.
Boente had led a number of prosecutions of political figures, including former Virginia Gov. Bob McDonnell and his wife. McDonnell’s bribery conviction was subsequently overturned by the U.S. Supreme Court.
Boente may not be in the position for long. Trump’s nominee for attorney general, Sen. Jeff Sessions (R-Ala.), is scheduled for a vote Tuesday in the Senate Judiciary Committee. A floor vote on his nomination is expected in the following days, but the exact timing remains unclear.
Yates’ firing seems certain to prompt fiery rhetoric at Tuesday’s committee vote, which had been expected to go Sessions’ way without too much drama. However, there was no immediate indication the dramatic episode caused Sessions to shed any support.
Sessions’ past comments to Yates at her confirmation hearing in 2015 also started getting attention overnight. The senator at the time pressed Yates about whether should would be willing to stand up to the president if he pushes the Justice Department to pursue policies or actions that don’t appear lawful.
“You have to watch out because people will be asking you to do things and you need to say no. You think the attorney general has the responsibility to say no to the president if he asks for something that’s improper?” Sessions asked, adding, “But if the views the president wants to execute are unlawful, should the attorney general or the deputy attorney general say no?”
Yates did not hesitate in her response, saying, “Senator, I believe the attorney general or the deputy attorney general has an obligation to follow the law and the Constitution and to give their independent legal advice to the president.”
The executive order Trump signed Friday temporarily halts travel to the U.S. by residents of seven countries, suspends new refugee approvals for 120 days and indefinitely shuts down the admission of Syrian refugees to the U.S. Another provision in the order gives Christians and other religious minorities in largely Muslim countries priority to immigrate to the United States.
Yates memo suggested she viewed the order as legally suspect not solely because of its wording but also because of statements Trump and others have made about it. Trump indicated in an interview last week that the order was intended to give Christians an advantage in the immigration process. An outside adviser to Trump, former New York Mayor Rudy Giuliani, has said the order grew out of Trump’s effort to find a “legal” way to follow through on his campaign trail promise to ban Muslims from entering the U.S.
Yates’ order would have left the government with no authorized courtroom representation in several lawsuits and dozens of other court actions challenging Trump’s order and the way it was carried out by immigration authorities. At least one of the suits is currently seeking a broad restraining order against Trump’s directive.
Some lawyers criticized Yates’ memo, saying she had a legal duty to defend Trump’s executive order unless she decided there was no reasonable argument for its legality. Her statement stops short of saying that, indicating that she had not been convinced the order was lawful.
“The typical standard for the Attorney General to defend an EO of the President is not whether she is convinced of its legality. Rather, the standard is something closer to the idea that she should defend the EO unless she is convinced of its illegality,” Harvard Law Professor and former George W. Bush Justice Department official Jack Goldsmith wrote on the Lawfare blog.
Goldsmith called her statement “unpersuasive” and said the better course for her would have been to resign over her disagreement with the policy laid out in the order.
Yates spent more than a decade as a career prosecutor in Atlanta, before being appointed as the U.S. Attorney there by President Barack Obama in 2010. Obama nominated her as deputy attorney general in 2014 and she assumed the role early the following year.
Most political appointees resigned or offered to resign with the change in administration, including Attorney General Loretta Lynch. However, the Justice Department announced a few days before Trump’s inauguration that he asked Yates to stay on as acting head of the department until a new attorney general was confirmed.
Josh Dawsey contributed to this article.