Opinion: Yates cinched the case against Trump, which is why she may not be the best choice for AG

Former Deputy Atty. Gen. Sally Yates addresses the Democratic National Convention.
(Brian Snyder / Associated Press)

Former Deputy Atty. Gen. Sally Yates delivered a searing indictment of the Trump administration’s subversion of democracy and the rule of law at Tuesday night’s session of the virtual Democratic National Convention.

Yates said that “from the moment President Trump took office, he’s used his position to benefit himself rather than our country. He’s trampled the rule of law, trying to weaponize our Justice Department to attack his enemies and protect his friends.”

For the record:

8:57 a.m. Aug. 20, 2020This has been corrected to make clear that the author is advocating that Joe Biden if elected would follow Gerard Ford’s example in appointing a nonpolitical attorney general.

8:57 a.m. Aug. 20, 2020

Yates said that Trump’s attacks on the FBI, the free press, inspectors general, military officers and federal judges all have one purpose: “to remove any check on his abuse of power.”


Yates’ speech was less a stem-winder than a succinct summing-up of the prosecutor’s case. But if this had been a real, pre-COVID convention, there would have been cheers on the floor (though not, we can hope, cries of “Lock him up”).

What we can expect are calls for Joe Biden, assuming he’s elected, to give Yates the top position in the Justice Department. She briefly occupied that post on an acting basis at the dawn of the Trump administration before being fired for refusing to defend an early version of Trump’s travel ban.

Which is why Biden probably shouldn’t give her the job.

Yates certainly has the professional qualifications, having served as a career prosecutor and U.S. attorney. Unlike former AGs John Ashcroft and Jeff Sessions, she’s not a politician, though some Democrats wanted her to run for a Georgia Senate seat this year.

But, as I argued here, Trump’s politicization of the Justice Department — which included a thwarted attempt to get rid of special counsel Robert S. Mueller III (according to Mueller’s report, though Trump denied it) — calls for a different kind of attorney general after the debris is cleared away. Biden should follow the example of the late President Gerald Ford, who in the aftermath of the Watergate scandal appointed Edward H. Levi, a legal scholar and the president of the University of Chicago, as his AG.

Of course Yates could serve as an ethical attorney general despite having endorsed Biden for president. And the attorney general is not only the federal government’s top prosecutor; she is also a member of the president’s Cabinet expected to champion the administration’s legal agenda in Congress and in the public arena.

Still, the way for a President Biden to distinguish himself from Trump would be to appoint an attorney general who wasn’t a prominent supporter of his campaign. That means no Atty. Gen. Yates and no Atty. Gen. Doug Jones, in case the Democratic senator from Alabama fails in his reelection bid.


Biden has already suggested that he would leave to his attorney general the decision about whether to prosecute Trump after the 45th president left office.

Asked earlier this month if he could envision a prosecution of Trump, Biden said: “Look, the Justice Department is not the president’s private law firm. The attorney general is not the president’s private lawyer. I will not interfere with the Justice Department’s judgment of whether or not they think they should pursue the prosecution of anyone that they think has violated the law.”

(Contrast that comment with what Sen. Kamala Harris, who last year said that if elected president, her administration’s Department of Justice would “have no choice” but to bring criminal charges against Trump.)

Of course, if Yates were attorney general her role at the convention would probably lead her to recuse herself from supervising any investigation of Trump, just as Sessions rightly withdrew from the Russia investigation because of his role in Trump’s campaign. Still, Biden would not be disrespecting Yates or Jones or any other supporter by choosing an attorney general who was doing something else during this convention.