Jurisprudence

Sally Yates Deserves Serious Consideration for Attorney General

Yates speaks, standing in front of an American flag.
Sally Yates addressing the virtual Democratic National Convention on Aug. 18. Handout/DNCC via Getty Images

Sidney Powell’s public implosion last week ended with the Trump legal team disowning her and her rabid conspiracy theories about election theft.

Unfortunately, the now-widespread recognition that Powell is a crank and conspiracy theorist may have come a little too late for Sally Yates. The former acting attorney general is among the many people whose names Powell has dragged through the mud as she has worked with Trump’s Justice Department to vacate the conviction of Michael Flynn.

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With thanks to Powell among others, Yates’ involvement in the Flynn investigation in the waning days of the Obama administration now seems to be perhaps her greatest weakness in the heated competition to become President-elect Joe Biden’s attorney general. The Wall Street Journal, NPR, and Bloomberg have all recently confirmed that she is on Biden’s short list for the position. Bloomberg, however, cautioned that Yates’ “history of tussling with the Trump White House might make [her] approval harder if the Senate is still controlled by Republicans,” and earlier this month Axios noted that Yates “could face resistance because of her role in the Justice Department’s investigation into Trump’s national security adviser Michael Flynn.”

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Yates is one of many sterling options available to Biden. She devoted virtually her entire career to the Justice Department, beginning in the U.S. Attorney’s Office in Atlanta in 1989 and eventually rising to the position of U.S. attorney itself in 2010. She was confirmed by the Senate as Obama’s deputy attorney general in May 2015 and, among other things, instituted a policy that directed prosecutors to prioritize charging individuals in cases involving corporate misconduct. Yates’ experience over the course of nearly 30 years in the department means that she knows its internal workings as well as just about anyone—a particularly attractive qualification at a moment when the department is in desperate need of a broad and concerted internal reform effort in the wake of Jeff Sessions’ and William Barr’s disastrous mismanagement.

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Among many conservatives, however, all of this has been overshadowed by Yates’ brief involvement in the Flynn investigation. Powell and others have cited Yates’ presence at a meeting in the Oval Office on Jan. 5, 2017, as evidence of Yates’ involvement in a plot to steamroll Flynn based on his conversations with Russian Ambassador Sergey Kislyak—even though, as Powell has dishonestly put it, “they all knew those conversations were perfectly legitimate.” Powell also lit into Yates for trying “to get Gen. Flynn fired” after his fateful interview with FBI agents, which resulted in his guilty plea to lying about his conversation with Kislyak. When Yates appeared before the Senate Judiciary Committee in August to testify about all this, Sen. John Kennedy suggested that she hated Trump and told her, “I think you and your colleagues have tarnished the reputation of the FBI.”

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The case against Yates is structurally not that different from Powell’s voter fraud theory—a mishmash of supposed facts strung together by unhinged rhetoric that is invulnerable to reality, context, or reason. In fact, Yates may have comported herself better than any of the other key players in the Flynn saga.

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As Yates told both the FBI and the Senate Judiciary Committee, she first learned about Flynn’s calls with Kislyak—during which the two discussed sanctions that the Obama administration had imposed in response to Russian interference in the 2016 election—from Obama himself, at a meeting with him and then–FBI Director James Comey in the Oval Office on Jan. 5. Comey knew about the calls but had not told Yates about them.

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Yates has said that, once she familiarized herself with the calls, she was skeptical about the idea of prosecuting Flynn under the Logan Act. She nevertheless viewed them as problematic—both because she believed that Flynn was undercutting a critical foreign policy objective, and also because she believed that Flynn was open to Russian blackmail, particularly since Vice President Mike Pence and other officials were inaccurately telling the public that the calls were perfunctory and congratulatory in nature. Yates convened a series of discussions with other officials in the following weeks and finally planned to tell the incoming White House about the actual contents of the calls shortly after the inauguration, on Jan. 24, 2017.

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When she reached Comey that day to tell him what she planned to do, he told her that FBI agents were already on their way to the White House to interview Flynn. Comey has acknowledged that, in the ordinary course, an interview like that—of a senior White House official—would have been coordinated through the White House counsel’s office, but he believed (correctly, as it turned out) that it was early enough in the administration that nobody would stop them. Yates told the Senate Judiciary Committee that she was “upset that Director Comey didn’t coordinate that with us and acted unilaterally.” It is no defense of Flynn’s conduct to observe that Yates was right to be upset and that, if Comey had consulted with her and she had stopped the interview from going forward, subsequent events would likely have played out in a dramatically different fashion.

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Yates offered the White House a simple way out of this mess two days later, when she met with White House counsel Don McGahn to discuss what she had told him was “a very sensitive matter.” Yates informed him that Pence and others had been publicly saying things about the Flynn-Kislyak calls “that we knew not to be the truth”—perhaps because Flynn had lied to them. McGahn asked Yates if Flynn should be fired, but she told him that was not her decision to make.

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A day later, after briefing Trump, McGahn called Yates back to his office, where she recalled that he asked her, “Why does it matter to DOJ if one White House official lies to another?” McGahn also asked if he could see the evidence that Flynn had lied to the FBI, but Yates was fired for her refusal to defend the travel ban before she could finalize those arrangements with him. The dominoes continued to fall after she left: Flynn was eventually forced to resign a couple of weeks later after news reports about what had actually happened on the calls, Trump then met with Comey privately to ask him to “see your way clear to letting this go, to letting Flynn go,” and on, and on, and on. The government’s motion earlier this year to dismiss Flynn’s charges remains pending.

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Biden fortunately has many very qualified people that he could select as his attorney general, but if Yates is passed over because conservative senators claim to be unhappy with her conduct during the Flynn investigation, that would be deeply unfortunate. Indeed, Sen. Lindsey Graham—no fan of the Obama Justice Department—opened the hearing where Yates recently testified by telling her that he believed she had “exercised good caution and legal judgment in January of 2017” and that “if people had followed her advice, things might be different today”—all of which is true. As a result, any decision to hold Yates back because of these events means that she will have suffered not because she did anything wrong, but because of the decisions of Flynn and Comey—two men whose recklessness and arrogance have already done more than enough damage to this country.

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