In a swift and remarkable assertion of their constitutional power, Justice Department lawyers and a host of state attorneys general defiantly opposed President Trump’s order to deny sanctuary to refugees and bar travelers from seven designated Muslim countries.
The refusal of acting U.S. Attorney General Sally Yates, an Obama carry-over, to defend the Trump executive order triggered Mr. Trump to fire her Monday night, reminiscent of the stormy "Saturday Night Massacre" of 1973, in which President Richard Nixon forced the removal of his own attorney general and his deputy in a scandal that eventually led to Nixon’s own resignation.
Mr. Trump’s steamroller of executive orders signaled his intent to fulfill his campaign pledge to change how Washington works. Instead, he fomented resistance from state attorneys general across the country, who filed stays to the Trump anti-Muslim refugee order.
Mr. Trump quickly replaced Ms. Yates with a more compliant federal judge, Dana Boente of the Eastern District of Virginia, just as the U.S. Senate was resuming the confirmation hearing of Sen. Jeff Sessions of Alabama to be his attorney general, turning it into an open battleground over the controversy.
Whatever the ultimate outcome of the Trump ban, which he and his spokesmen stoutly deny violates the Constitution, it has fired up public dissent, which has spilled out in city streets and at airports across the country.
Brooklyn federal Judge Ann M. Donnelly placed a hold on Mr. Trump’s executive order Sunday night on grounds it imposed "irreparable harm" on travelers to the United States holding valid visas or refugee status. Federal Judge Leonie M. Brinkema of Virginia did likewise, protecting travelers at Dulles International Airport outside Washington, D.C.
Sixteen state and District of Columbia attorneys general joined in a statement saying that, as "the chief legal officials for over 130 million Americans and foreign residents, we condemn President Trump’s unconstitutional, un-American, unlawful executive order." As for the alleged Muslim ban, they said: "Religious liberty has been, and always will be, a bedrock principle of our country, and no president can change that truth."
The Trump administration has denied that the order is a Muslim ban, noting that Muslims in countries other than the seven targeted by the order are not prohibited from coming to the United States. But New York Attorney General Eric Schneiderman tweeted on behalf of the state AGs: "We’ll work together to fight it," signing with the hashtag "#No Ban, No Wall."
Many of the signees are women, possibly an indication of the political ramifications of last week’s huge Women’s March on Washington that followed and was much larger than the crowd that attended Mr. Trump’s inauguration on the previous day. Numerous press reports to that effect caused the president to rant, reflecting his vulnerability in the realm of self-aggrandizement.
Mr. Trump’s dismissal of Ms. Yates as the acting U.S. attorney general recalled the infamous episode in 1973 when Nixon ordered his Justice Department chief, Elliot Richardson, to fire Watergate Special Prosecutor Archibald Cox, a highly esteemed Harvard law professor. Richardson refused to obey Nixon and resigned. So did his deputy, William Ruckelshaus.
Cox had petitioned the U.S. Supreme Court to order Nixon to release the tapes he had made in the White House that contained evidence of his cover-up of the huge corruption and criminal scandal, the disclosure of which would force the president’s resignation in the summer of 1974.
When Richardson and Ruckelshaus refused to fire Cox, Solicitor General Robert Bork, the third in command at Justice, complied. Later, when Bork was nominated for the Supreme Court by President Ronald Reagan, he was rejected in stormy confirmation hearings chaired by then-Sen. Joseph Biden of Delaware.
Whatever the outcome of the confirmation hearings on Sen. Jeff Sessions, Mr. Trump’s firing of Sally Yates will be recalled long afterward as another memorable challenge and rebuke of presidential power from another Department of Justice leadership.
For Donald Trump, the episode has eroded his seeming control of the nation’s affairs from the White House, bolstered by Republican majorities in both houses of Congress, and undermined the notion that he would have his way for the duration of his surprise presidency.
Jules Witcover is a syndicated columnist and former long-time writer for The Baltimore Sun. His latest book is "The American Vice Presidency: From Irrelevance to Power" (Smithsonian Books). His email is juleswitcover@comcast.net.
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