Last night our country bore witness to the “Monday Night Massacre”, a reprise of events similar to the “Saturday Night Massacre” of October 23, 1973. We now seem to be on the road toward a Constitutional crisis. History might very be repeating itself before our very eyes.
The new President might have embarked down the road traveled by President Nixon, when Mr. Trump fired Acting Attorney General, Sally Q. Yates. The Acting Attorney General had announced that she was instructing the Department of Justice not to defend the Executive Order banning entry into the United States of travelers from seven predominantly Islamic countries. Yates was fired and replaced with Dana Boente.
The United States Department of Justice is the chief law enforcement officer of the United States, not the legal representative of the President. The President cannot order the Attorney General or the Acting Attorney General to uphold an Executive Order. The chief law enforcement officer of the United States has the right and the duty to refuse to defend orders deemed to be illegal or unconstitutional.
Clear evidence exists that the purpose of the travel ban is the targeting of Muslims from certain countries, while not targeting Muslims from countries where the new President has business interests. In a January 28, 2017 interview on the Fox News Channel, former New York City Mayor, and Trump confidant, Rudy Giuliani, confirmed that he had been asked to find a way to legally achieve the new President’s desire for a Muslim ban. There are seven predominantly Islamic countries targeted by the ban, while Islamic countries where the new President has extensive business interests are not included. The new President has also expressed a desire to favor Christians seeking to enter the United States.
White House Chief Strategist, Steve Bannon, and Senior Advisor, Stephen Miller, are believed to be the authors of this Executive Order. It is also believed that Bannon and Miller were assisted by certain House staffers working in secret with the administration after having signed non-disclosure agreements.
The States, through their Attorneys General, are able to challenge these Executive Orders, as they did under the Obama Administration, where States allege injury to their residences. Attorney General Bob Ferguson of Washington State is challenging the order on behalf of the businesses believing that they will be harmed by the travel ban. There are also individual claims being brought by real people harmed by the Executive Orders represented by public interest groups, such as the American Civil Liberties Union, as well as by private lawyers working on their behalf.
The actual work of representing the position of the United States in defense of a poorly written Executive Order, which many legal scholars believe to be unconstitutional, will be done by the rank and file career Department of Justice lawyers. Attempting to defend that which is unconstitutional or contrary to existing law, is a tough and often an impossible task. The Democratic Attorneys General from 16 states have already vowed to fight against the administration’s order. Four Federal Judges have already granted temporary injunctions blocking enforcement of the order.
The President does have the authority to fire the AG or the acting AG, but that is usually done by asking for and getting a resignation. History shows this happening back on October 23, 1973, when Nixon Attorney General Elliott Richardson refused to fired the Special Watergate Prosecutor, Archibald Cox, so Richardson resigned. The Deputy Attorney General, William Ruckelshaus, also refused to fire Cox, so he too resigned. Nixon then turned to The Solicitor General, Robert Bork, appointing him Acting AG, and it was Bork who fired Cox.
The “Saturday Night Massacre” of 1973 became the nails that finally began to close Nixon’s coffin, as the evidence had already been developed as to his illegal activities. The American people, including Republicans, had begun to see who and what the President really was. This solidified the mantra Nixon earned as the “Imperial President”.
President Nixon’s purpose was to prevent the release of the tapes, the existence of which had become known on July 16, 1973 during questioning by the Senate Watergate Committee of Nixon’s Special Assistant, Alexander Butterfield. The “Saturday Night Massacre” only delayed the release of the tapes. On July 24, 1973, the Supreme Court ruled to uphold a subpoena ordering that the tapes had to be turned over to the office of the Special Prosecutor.
We can expect the new President to continue to issue Executive Orders pushing the limits of the Constitution. We can also expect him to resist the boundaries that have limited previous Presidents. The road this President is traveling does not bode well for America or for the world.