Is Biden About To Help Make The Case For A Self-Pardon?

Authored by Jonathan Turley,

With the nomination of California Attorney General Xavier Becerra for Secretary of the Department of Health and Human Services, the list of presumed front-runners for Attorney General is narrowing. One name remains prominently at top: former Associate Attorney General Sally Yates. 

Yates’ appointment would be one of the most controversial for Biden and would likely lead to an intense confirmation fight over her standoff with President Donald Trump at the start of his Administration as well as her role in the Russian investigation. However, in a strange way, Yates’ controversy could be exactly what both President Trump and President-Elect Joe Biden need if they are looking a basis for a self-pardon.

The short list for Attorney General contains some notable and less controversial figures like Judge Merrick Garland and former Homeland Security Secretary Jeh Johnson. However, Sally Yates is one of the most astute political operatives in Washington.  She went from relative obscurity to legendary status in one of the most cynical and successful calculations in history.  She engineered her own firing at the hands of Trump – a virtual canonizing act for the media and many liberals.

When Trump was inaugurated, Yates had only a few days left in government. She became acting attorney general in January 2017, following the departure of Attorney General Loretta Lynch. Yates had already been instrumental in signing off on secret surveillance of Trump associate Carter Page during the Obama Administration and had pushed for the investigation of incoming National Security Adviser Michael Flynn. Both investigations of possible Russian collusion were found to be without merit and Yates recently said that she would not have signed off on the surveillance if she knew then what she knows today.

Yates had just become acting Attorney General when she was given the opportunity of a lifetime.  Trump was about to sign his travel ban and had sent the draft to the Justice Department’s Office of Legal Counsel, an office ordinarily given considerable deference on the legality of policies and orders.  The career staff at the OLC had found that the order was legal and within Trump’s authority.  Yates however quickly sent out an unprecedented order to the entire department not to assist the White House on the executive order. The move thrilled commentators and media figures who had long accused Trump of religious and racial bigotry. I was (and remain) critical of her action on the travel ban.

For the record, I was one of the earliest critics of the order both on policy and drafting grounds. The order failed to address such groups as green-card holders and others legally present in the United States (those errors would later be addressed in subsequent orders). However, Yates did not say that the order was illegal.  Rather, she declared that she was not convinced the order was “wise or just” or “lawful.” It was a bizarre order since it is not the job of Justice Department attorneys to decide if a president is acting in a “wise or just.” Former Justice official and Harvard professor Jack Goldsmith pointed out that Yates neither determined the immigration order to be unconstitutional nor cited any basis for refusing to defend it. Accordingly, he said, Yates left the impression of “insubordination that invites the president to fire her.”

Of course, if Yates felt the order was morally or legally wrong, Yates could have resigned like Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus in the infamous “Saturday Night Massacre” under President Nixon. Why didn’t she?

The reason seems obvious.  An official resigning a few days before she was scheduled to resign is hardly news. Yates appeared to want to be fired. She knew that such an order would make her termination virtually inevitable. Since ancient times, the only path to instant glory other than slaying a great tyrant is to fall by his hand. Trump fired Yates and she immediately entered the Pantheon of fallen heroes for the left.

Notably, while the order would be expanded and altered in later superseding orders, the core of the travel ban remained the same. Indeed, the challengers went to the Supreme Court and said that it was essentially the same order with the same underlying discriminatory impact. Yates later explained that she considered the order discriminatory for the same reason. Yet, the Supreme Court ruled that she was wrong and the OLC was right. The order was constitutional.  It was not struck down but expanded. That does not mean that reasonable people could not have disagreed on that point. As I mentioned, I was a critic of the order. However, as I also noted, the existing case law favored Trump and, at best, this was a close matter for the courts to decide (not Sally Yates).

It did not matter. The legend was made. She spoke at the Democratic National Convention and declared:

“I was fired for refusing to defend Trump’s shameful and unlawful Muslim travel ban.”

It did not matter that the order was not unlawful but upheld by the Supreme Court.

It seems odd that Biden would even consider the addition of another controversial nomination to his Cabinet while arguing that he wants to heal and unify the country. Yates is clearly an intelligent person and her nomination would be very popular with many on the left. Yet, there is also an interesting dynamic to the nomination as it relates to the controversy over the self-pardon. This may not be the impetus behind the push for Yates but it could be an unexpected benefit. This could be a case where two controversies (like two negatives in mathematics) make a positive.

There has been much discussion over the possibility that Trump could grant himself a self-pardon before leaving office. While this question has bedeviled law professors for years, I have long held the view (before the Trump Administration) that a president can grant a self-pardon but should not do so.  Judge Richard Posner discussed the issue in commentary and also concluded that “it has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.”

Others disagree (including an excellent piece by Michael Luttig today which is the subject of a response on this blog).  Recently, Professor Larry Tribe insisted that Trump cannot constitutionally grant himself a pardon and noted that, if that were the case, Trump’s joke about shooting someone on Fifth Avenue, would “would make that literally true.” (In truth, it would not. Murder is first and foremost a state offense which is not in any way limited by federal pardon power). While I honestly doubt the courts would ultimately uphold Tribe’s view, we may be moving to resolve this interesting question.

On a political level, a Trump self-pardon would might be quietly welcomed by Biden. The President-elect is already getting increasing demands from the left to carry out proposals ranging from packing the Supreme Court to free college tuition to major tax increases to D.C. statehood. There are also rising calls for the prosecution of Trump and many in his inner circle. Biden needs those prosecutions like another election recount. It will continue divisions and discord into his Administration.

So why would Yates help? Because her nomination would be the ultimate argument for Trump to use for a self-pardon. Yates would rekindle far-right deep state conspiracies and confirm for many that the same biased, anti-Trump officials were being returned to the Justice Department. I would hope that Yates would not act in such a predatorial fashion but Biden could not pick anyone (short of James Comey) who would be more triggering for the right.

So everyone might win in a strange way with a Yates confirmation. 

  • Yates would pull off the most dramatic staged demise since Romeo and Juliet.

  • Biden would have an excuse not to investigate and prosecute Trump.

  • Trump would reduce his exposure to only state prosecutions while claiming that he had no choice but to self-pardon.

Everyone was left no choice and politics again triumphs over principle. To paraphrase the move “The Bronx Tale,” “you can ask anybody from my neighborhood, and they’ll just tell you this is just another [Beltway] tale.”