By Stephen Winham
“Senator, I believe the attorney general or the deputy attorney general has an obligation to follow the law and the Constitution and to give their independent legal advice to the president.” [Sally Yates in reply to current U. S. Attorney General Jeff Sessions during her Senate confirmation hearing as Deputy U. S. Attorney General, March 24, 2015].
“My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts,” … “At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities, nor am I convinced that the executive order is lawful.” [memo to her staff before Sally Yates was fired as Acting Attorney General, January 30, 2017]
Shortly after he was sworn in, on January 30, 2017, new Acting Attorney General Dana Boente released a statement rescinding Yates’ order and vowing to “defend the lawful orders of our president.”
(emphasis mine)
I’m not an attorney, nor do I play one on TV (though there is an attorney named Stephen Winham in St. Augustine, Florida), but I firmly believe the roles of both the U S. and our state’s attorneys general are often misunderstood and, sometimes, misrepresented. We repeatedly hear the attorney general is the “people’s attorney” – and, to a large extent, that is true. However, notwithstanding anything else they may or may not do, attorneys general are, primarily, the government’s attorneys.
In addition to upholding the constitution and statutory laws, AGs are sworn to represent and defend the government. They are, in other words, government’s in-house law firms.
So how can any attorney represent any entity and not also represent its sitting chief executive?
It is important to remember that we have a judicial branch of government. Attorney General opinions are just that—opinions. Only through the judicial system are legal disputes ultimately resolved. While justice departments can and do provide legal guidance, they are not the final arbiters on questions of the law, itself. In a true legal sense, the judicial branch of government is designed to be a direct servant of the people.
Departments of justice, both state and federal, are executive, not judicial branch departments. We have sometimes allowed the U. S Justice Department and our own attorney general to assume judicial powers they don’t have. Attorney general opinions are often treated as if they are judicial rulings. They clearly are not. To the extent departments of justice enforce the law, they are subject to the court system in the judicial branch like everybody else.
In the first quote above, Yates answered correctly. It is certainly the responsibility of the attorney general to give independent advice to the president. If I hire an attorney, I certainly expect that person to give me “independent” legal advice. What value do I get from an attorney if I expect him or her to simply validate everything I say or do? That would hardly constitute sound legal representation. And, even if I have been charged with committing an illegal act, don’t I still deserve the best representation possible to ensure justice is served?
I firmly believe Yates was wrong in the second case – the memo to her staff.
Though he artfully hedged on the issue, Acting Attorney General Boente’s position is also correct.
What should Jeff Sessions, now confirmed as Attorney General, do now with regard to presidential executive orders? He has reportedly recently indicated he will defend the President’s travel ban order. However, during his confirmation hearings he voiced opposition to denying U. S. entry to Muslims on the grounds of religion.
I’m in no position to advise AG Sessions, but if I was I would suggest he tell Trump he will effectively defend any part of the order that is lawful, but make clear that he will have great difficulty defending anything in it that appears to be clearly unlawful. He should defend any ambiguities in favor of the President to the extent possible, of course, since he is our government’s attorney.
If Sessions and the President cannot come to an agreement, and assuming the President is unwilling to rescind and perhaps issue a modified order, the Attorney General should resign. He should certainly not air any disagreements with the President publicly, as Ms. Yates did. Regardless of her personal motive, she weakened her client’s (the government’s) case.
Like 42 other states, Louisiana elects its attorney general. Recent events lead me to believe it may be time to reconsider that. Our state attorney general has gone out of his way to take legal positions counter to those of our governor. Would he do so if the governor appointed him?
Again, how can our state’s attorney defend our state, but not its chief executive?
Jeff Landry’s motivation for constant bickering with the Gov. Edwards doesn’t really matter. What matters is whether he can effectively represent the state’s (and, to that extent, the people’s) best interests while doing so. Notwithstanding his laudable efforts in consumer protection and Medicaid fraud prosecutions, he does the state and its people a disservice by not providing legal representation to our governor and, even more so, by openly defying him.
For the good of our state, isn’t it time for Landry to tone it down?
Louisiana Voice 
I would rather have an AG who is the people’s attorney and who defends the state’s constitution rather than an appointed political hack.
But, but Sidwit, when the attorney general has a political agenda of his own (as Landry obviously does), where does that leave us? With an elected political hack.
But if the President/Governor issues an Executive Order without first consulting with the Attorney General as to its legality/constitutionality, that would negate the Attorney General’s obligation to “blindly” defend such Orders. This would be especially so in matters of Constitutionality. As the “People’s” Attorney, the AG is obligated to represent the People and NOT a bumbling Chief Executive.
John, I do not disagree.
Like him or not, he will be your next governor. Bank on it.
You got it!! The ONLY way Landry can be stopped is if he has a prostitute skeleton of his own in his closet, and he CLEARLY does NOT or else Caldwell’s opposition research would have uncovered that fact!
I remember the same statements about Vitter. I confidently predict that people of all stripes will be so sick of Trump’s personal idiocracy that anyone still clinging to those viewpoints (Landry) won’t possess a snowballs chance in Hades (Jindal) of ant elective office of substance.
Let’s make it interesting! I assume you probably like boiled crawfish (I have a platter as my profile picture on F/B).
If Edwards wins re-election, I have to treat you to 30 pounds of boiled crawfish at the restaurant of your choice (guidance: Sammy’s has GREAT boiled crawfish). If Landry wins, you have to treat me to three pounds (I’ll let you know now I choose Sammy’s).
If you don’t like boiled crawfish, I’ll get you a gift card for Sammy’s for $150 such that you can order whatever you’d like from their menu.
Any other candidate wins, we just consider it all a wash.
That’s the 10-to-1 odds I suggested? You willing?
I do indeed like crawfish but I don’t like Edwards chances in 3 years either. In fact trying to predict the next governor that far out is like picking the Super Bowl 3 years away. Can’t be done. Let’s at least wait until we know the field. The only thing I’ll book that far away is death and taxes.
Fair enough, Bob. We’ll stay in touch and see what the field looks like around mid-April of 2019.
I have great respect for you, Stephen, but on this topic, I totally disagree. I want to vote for the AG of my choice based on what he or she indicates his or her stands are on the issues.
As the two previous comments reference, to do otherwise is to essentially bundle the two positions into one. It was bad enough all the problems I endured in reporting illegal activities like payroll fraud to Caldwell’s office (including having the Terrorism Unit of LSP called to my home on the advice of Assistant AG Rick McGimsey: http://www.auctioneer-la.org/LSP_report.pdf). I don’t even want to think of how much worse it would have been to have a Jindal hack as AG.
I’m being blunt here, but friction between an AG and Governor is inevitable when one official is pretty conservative on social policies and likely much more representative of the people’s will and who won on campaigning on those stands and the other was elected SOLELY on being able to beat the drum beat (with $5.5 million in trial lawyer money) that “Vitter met with prostitutes” over and over and over again.
I FULLY support Jeff Landry challenging Edwards on his insistence that Louisiana’s women be subject to biologically-born men sharing their public restrooms, and I was in court when Chester Caedars (AG Landry staff attorney) said to Judge Hernandez, “All Gov. Edwards has to do is remove the words ‘gender identity’ from his EO and we can all go home.” It’s Edwards’ own fault if he wants to go to the wall defending those two words.
I am also proud of Landry for voicing his sentiments that JBE’s buddy, Larry S. Bankston, has no business holding state contracts with Louisiana boards and commissions. Hell, Edwards would likely appoint him AG.
Again, I respect you very much, Stephen, but we’re not even close to being on the same page in terms of letting a governor appoint the AG for the state.
I try never to look at that LSP report linked above for the bad memories it brings back (particularly the stress it inflicted on my then-80-year-old mother, who resides with me), but the “totally reliable” source, Sandy Edmonds, is the very one who was the subject of a payroll fraud investigation by the Legislative Auditor’s Office at the time. As I state in the report, I was NOT at the LALB office but in a conference room of the building after having gotten the permission of Karen Kennedy, the then-CEO of the Arthritis Association of Louisiana (and who opened the locked door to let me in the building) to use the room for videotaping purposes for promoting an upcoming high school reunion.
At the time, I had no idea what a cluster f— LSP’s so-called management is. Otherwise, I guess I could have written off their visit as par for the course. To Bart Morris’ credit, he apologized to both me and my mom as he left and I think felt frustrated at the waste of his and his partner’s time.
Robert, differing opinions are important to a healthy society and help people on each side of issues grow one way or the other.. Thanks for your honest comments.
The AG’s office, Mr. Burns, is not supposed to be “based on what he or she indicates his or her stands are on the issues,” as you propose. It’s supposed to be based on the law. His or her stance on issues is beside the point. If I were an attorney, I could run for AG on a platform of hanging defendants without a trial but that certainly would comply with the law.
That’s an extreme example, but it illustrates the weakness of your argument.
Buck, do you suggest the law is fully static and not subject to change? If so, I guess I just dreamed up the fact that gay marriage is now the law of the land. I am very liberal on social issues and fully support gay rights (including marriage), but I draw the line on infringing on females’ right to expect only other females in their public restrooms. I would therefore submit that it is your argument which is weak based on your apparent belief that the law is totally static and not subject to alteration based on societal evolutions of acceptance (or disdain) over time.
JBE was elected on the backlash to Jindal’s horribly failed conservative policies. I don’t anticipate Trump’s doing any better and think we are do for a national pendulum swing to the left next election cycle.
No question there was (and will be again if he chooses to run in 2019) a Jindal backlash. I think that’s attributable to his plastic, phony persona and blind ambition. Also, Vitter and Jindal couldn’t tolerate one another because Jindal was ANYTHING BUT a fiscal conservative!! He went on an unsustainable spending spree of Federal dollars like there was no tomorrow! He would push corruption under the rug or, worse yet, use his lapdog Inspector Street to go after those seeking to block fraud and law violations. It’s a BIG mistake to think Louisiana’s fundamental conservative values aren’t still solidly in place and, were that not the case, we’d have a U. S. Senator Foster Campbell representing us in Washington today. Nope, Edwards’ victory is a function of two word “Vitter, prostitutes” combined with $5.5 million in trial lawyer money to cement those two words in voters’ minds. Common sense tells you tons of voters voted for Edwards then only a year later those same voters voted for Kennedy,
Trump is already keeping his promises and people are noticing. All the crazy fringe liberal protestors will majorly turn off voters. He wins the midwestern states “bigley” next go around.
Meanwhile, Jindal remains the biggest letdown of all time.
Stephen I wholeheartedly agree with your viewpoint and am disappointed we have an AG more bent on pushing his personal agenda than representing our government, ALL members of government, and the people. BTW, the media doesn’t need to hear every action, no matter how minor or PETTY, the AG’s office takes. Blatant self aggrandizing is self deprecating. Landry, like Vitter, hopefully will disappear from the public’s eye. We don’t need a Trump at the state level.
There is no AG who will occupy that office, Democrat or Republican, who isn’t going to put out press releases of what he or she deems worthy of such. It’s up to the media to decide whether or not they deem it newsworthy, but it’s unrealistic to think that any governor, attorney general, insurance commissioner, lieutenant governor, or treasurer isn’t going to have a media operations contact to dissiminate out press releases to the media of whatever they deem important.
Don’t bet any meaningful money on Landry fading away, Bob. Also, Vitter may not hold office, but don’t think for a second he’s gone from politics completely. Over half the Republicans in the Legislature owe their seats to his efforts and have great respect for him. That’s one reason Edwards with his “Prostitutes over Patriots” ad now finds that the way he won isn’t helping him at all in gaining their trust or support for his initiatives.
The people of Louisiana elected a pig in a poke in Jeff Landry. He’s been campaigning for governor since his first day in office, which I think is shameful. We pay him to do his job. I’m undecided about whether electing or appointing the AG is the way to go, but Landry is not serving either the governor or the people of the state well.
Stephen, I’m not sure I understand what you’ve said about your disagreement with ex-Acting-Attorney General Sally Yates. I look upon her as a hero. Should she have gone on to defend the travel ban if she believed that parts of the executive order were illegal?
I would have given her precisely the same advice I would have given Sessions. As I said in my piece, she erred when she made her disagreement with the order a public matter. As John Sachs said above, Trump (or his executive counsel) could have run it by her before releasing, but since he didn’t and since she did not subsequently confer with him (or apparently his counsel), before issuing the directive to her stafff, she had no alternative but to resign. All of this, in my opinion, of course, which has even even less weight than those of an actual attorney or attorney general. 🙂
Thanks for explaining, Stephen. You have a point, but Yates is still my hero. Trump (or his executive counsel) SHOULD have run the travel ban by her. How could they be so stupid? On the other hand, perhaps Team Trump suspected she would not approve of the EO, so they plunged ahead.
Sally Yates is no hero. She is a blatant political hack.