Who can forget January 30. That was the night that the Acting Attorney General, Sally Yates, announced that the Justice Department would not defend Donald Trump’s executive order banning travelers from seven nations with a terrorism problem because she didn’t like it. Shortly after that announcement Trump fired her. What happened then was really unusual, though in the wake of what had just happened it didn’t gain any attention. The new acting attorney general had to be a Justice Department official who had been confirmed by the Senate. That meant, by default, it had to go to one of the US Attorneys as all other political appointees had been terminated on January 20.
The original order of succession established by Obama in Executive Order 13557 was
United States Attorney for the Eastern District of Virginia
United States Attorney for the District of Minnesota
United States Attorney for the District of Arizona
However, on January 13, just seven days before he left office Obama changed the order of succession inasmuch as it pertained to the US Attorneys.
United States Attorney for the District of Columbia
United States Attorney for the Northern District of Illinois
United States Attorney for the Central District of California.
Why would he do this? When USA Today reporter Gregory Korte was asked he was told that it was at the request of the incoming Trump administration. If that was the case, then why did Trump choose to elevate Dana Boente, the U.S. attorney for the Eastern District of Virginia, to acting attorney general? Boente, as you can see, was cut out of succession by the January 13 change.
The Weekly Standard’s Mark Hemingway offers some insight?
The man Obama placed at the head of the line of succession is D.C.’s U.S. Attorney Channing Phillips, who is quite cozy with President Obama and his attorney general, Eric Holder. He is a former senior adviser to Holder, and he stayed on to work under Obama’s next AG Loretta Lynch before Obama appointed Phillips D.C.’s U.S. attorney in 2015. But Phillips goes way back with Holder—Holder first hired Philips in the D.C. U.S. Attorney’s Office in 1994. It’s also safe to say that the AG offices in the Northern District of Illinois and the Central District of California are not hotbeds of Trump supporters.
I think Hemingway goes too far in connecting the dots to Sessions’s recusal. That requires much more planning and tactical acumen than the Obama administration ever showed while it was in office. What I do think is reasonable is this: The Obama administration knew that there would be a blast of Trump executive orders, some dealing with immigration and some with other lightning rod issues. Inevitably, one of them was going to be challenged in court. (Given that the Trump travel executive order had been drafted on Capitol Hill, where gossip is the coin of the kingdom, it is not impossible that the contents of that order were already known to the Obama administration.) But the orders were going to be challenged and inevitably one of them would require Justice to defend it. What better way for a political appointee, like Sally Yates, to leave than in a fiery cloud of martyrdom?
And what if her successor also refused to obey the order? Suddenly you are in Nixon-esque Saturday Night Massacre territory. That, if you recall, is the October 20, 1973 incident that effectively ended Nixon’s presidency. He ordered the attorney general, Elliott Richardson, to fire the Watergate special prosecutor. Richardson refused and resigned. When his deputy, William Ruckelshaus, was order to fire the prosecutor, he, too resigned. And what if his successor also refused?
It is becoming more clear every day that the Obama administration left a series of stink bombs for the Trump administration. They imposed sanctions on Russia, there was a spate of last minute executive orders and rules. It’s clear that Ben Rhodes has orchestrated the public protest resignations of two of his flunkies, Ned Price and Ruman Ahmed. The resignation of Sally Yates fit in well with the narrative they were trying to build of an administration that was so repulsive that no one would obey its orders or even work for it.
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