Article 3 of the Constitution:
"The judicial Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the
supreme and inferior Courts, shall hold their Offices during good Behavior, and
shall, at stated Times, receive for their Services a Compensation which shall
not be diminished during their Continuance in Office."
The Judiciary Act 1789 established the structure and jurisdiction of the system of Federal Courts and the Act also created the Office of Attorney General of the United States. At the present day, the Attorney General is head of the Department of Justice.
Dismissal of Sally Yates:
On 30th January 2017, Dana J. Boente was appointed Acting Attorney General to replace Sally Q. Yates who was dismissed by President Trump - New York Times 30th January. A Statement issued on behalf of the President said:
"The acting Attorney General, Sally Yates, has betrayed the Department
of Justice by refusing to enforce a legal order designed to protect the
citizens of the United States. This order was approved as to form and
legality by the Department of Justice Office of Legal Counsel.
Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration.
It is time to get serious about protecting our country. Calling for
tougher vetting for individuals travelling from seven dangerous places
is not extreme. It is reasonable and necessary to protect our country."
This previous post looked at Executive Orders issued by President Trump. It is an understatement to say that a number of these have been immensely controversial and none more so than the Order of 27th January - Protecting the Nation from Foreign Terrorist Entry into the United States
So, just what had Sally Yates done to deserve this condemnation? In short, she had set out her view, as Acting Attorney General, as to how the Department of Justice should handle the Presidents' Executive Order of 27th January. The Los Angeles Times published her memorandum to the Department. Yates was not convinced that the Executive Order was not lawful and she directed the Department not to present arguments in its defence - "unless and until she became convinced that it is appropriate to do so."
The role of Attorney General:
It must be the role of any Attorney General to issue legal opinion which is as accurate and well-considered as possible and there are certainly grounds for arguing that aspects of the Executive Order may be either unconstitutional or, at least, in breach of international obligations undertaken by the United States (e.g. the Refugee Convention) - see The Guardian 4th February 2017. No Attorney General should be dismissed or censured for raising such questions. However, it does seem another matter to issue a memorandum of the type issued by Sally Yates. Given that she did not agree with the Order, her proper course was to resign and say why. Nevertheless, she did not deserve the uncompromising form of censure issued by the White House. The White House statement smacks of authoritarian and unreasonable government.
The role of Attorney General in the United Kingdom differs in detail from the US counterpart. The UK Attorney General is the principal legal adviser to government and, in that capacity, has to be free to give independent legal advice to Ministers. The Constitutional Affairs Committee of the House of Commons reported on the Attorney General's Constitutional Role - 5th Report 2006-7. The UK Attorney General appears to have considerable independence with regard to advice offered to government though concern was raised when Mr Dominic Grieve QC was replaced by the Prime Minister. However, that was done as part of a Ministerial "reshuffle" though it was widely thought that Mr Grieve's views on the European Convention on Human Rights conflicted with the direction in which, at the time, the government wished to go - BBC News 15th July 2014.
The role of the USA Attorney General is described on the Department of Justice website - HERE - where it is stated that the role includes - "Furnish advice and opinions, formal and informal, on legal matters to
the President and the Cabinet and to the heads of the executive
departments and agencies of the government, as provided by law."
The Memorandum of Sally Q Yates was rescinded by Dana Boente.