By Cameron Erickson, Contributing Writer
With a constitutional republic, there is always risk of administrative agencies acting like the fourth branch. This concept traces back to Nixon/Watergate. A special prosecutor was appointed by the executive branch, but given independent power to investigate the crimes. For Trump, at first glance, it sounds like he’s firing interim Attorney General Sally Yates for bad cause. She was an Obama appointee who we had never heard about until now, when she directed her Justice Department to not enforce Trump’s ban on refugees and immigrants from 7 countries. The refugee ban in-and-of-itself is not the focus of this article, but rather the issue of potential administrative overreach.
There are instances where a quasi-independent branch of an agency is valid, such as in the case of Nixon’s special prosecutor. However, only the Executive Branch has the authority to appoint such a sub-agency. In the case of Nixon, the independent prosecutor was in a sub-agency of the Department of Justice (DOJ), and their attempted strong-arming was without merit. On the other hand, Yates’ firing was entirely justifiable because the DOJ is the chief arm of the executive branch, and she did not have any authority – especially as an acting prosecutor – to be insubordinate before Jeff Sessions is confirmed. Before liberals cry foul, think about how this could cut the other way. FBI Director James Comey, for example, had his job, but had Hillary won the election he would have almost certainly been terminated for the perceived (or actual) slight to her campaign.
The Saturday Night Massacre is a term you’ve probably heard thrown around a lot, referring to President Richard Nixon’s termination of independent special prosecutor Archibald Cox after he asked for copies of taped conversations recorded in the Oval Office. After mounting pressure and charges of corruption against associates of President Nixon, Attorney General Richardson had little choice but to appoint Cox. After Cox’s investigations of Watergate led him directly to the Oval Office, Nixon at first ordered Attorney General Elliot Richardson to fire Cox. After Richardson refused and resigned in protest, Nixon ordered Deputy Attorney General William Ruckelshaus to fire Cox. He refused, as well, and resigned in protest. In the case of the Saturday Night Massacre, it was a clear issue of administrative overreach of an independent prosecutor within an agency.
Not Above the Law by James Doyle defines a Special Prosecutor as a “quasi-constitutional element in the American system,” usually an attorney from outside the government selected by the Attorney General or Congress to investigate and possibly prosecute a federal government official for any wrongdoing in office. The idea behind appointing one is to mitigate any potential conflict of interest between the Department of Justice and officials who may have political connections within the department. Contrast this with the role of the Attorney General, or Interim Attorney General in the case of Sally Yates, who is considered to be the chief law enforcement officer of the U.S. Government, and serves at the pleasure of the president and can be removed by the president at any time.
It is important to acknowledge the nature in which Yates left the department. If this were truly in the spirit of the Saturday Night Massacre, she could have followed in the footsteps of Richardson or Ruckelshaus and easily resigned in protest, thus avoiding the termination. Instead, she opted for the optics of getting fired. She must have known that the course of action she decided to take would result in her termination. Therefore, it is important to examine the motivation behind her decision. She must have been defying President Trump not as a matter of constitutional right, but as a means to elevate her name.
There will now be loud calls for her to go further into the public spotlight. The progressive left’s donor base will certainly bankroll her campaign for public office, and she will have a prosperous career in politics. You have not seen the last of Sally Yates, and it’s only fair Donald Trump gets a percentage of royalties from her upcoming book release.