If MSNBC reported that Joe Biden was considering appointing a colleague of the Trump Organization’s “ethics lawyer” to lead the next Justice Department, it would be an outrage. If MSNBC explained that this would-be attorney general has spent the last two years teaching lawbreakers how to dodge or undermine DOJ investigations, it would be disturbing. If MSNBC finally showed that this would-be AG deliberately undermined Barack Obama’s late-term clemency initiative, keeping tens of thousands of wrongfully imprisoned people behind bars, viewers would take to the streets — or at the very least, to Twitter.
All of these things are true. Sally Yates, an anti-Trump #Resistance icon, spent her last year in Obama’s Justice department refusing to act on a high-profile clemency initiative, prompting a furious resignation letter from Obama’s pardon attorney. After her famous firing in the early Trump days, Yates went to work for BigLaw firm King & Spalding’s “Special Matters and Government Investigations” practice, which is BigLawspeak for “teaching corporate America which laws they can violate without DOJ filing suit, and how to tamp down on suits which they do file.” One of Yates’ fellow King & Spalding partners is Bobby Burchfield, a regular litigator on behalf of both the Trump Organization and the President himself — most recently, Burchfield argued at the Supreme Court to keep North Carolina mail-in ballot voters from exercising their constitutional rights.
These facts about the possible next attorney general speak to systemic problems baked into how justice is administered in this country at the highest levels — and how we do and don’t talk about those problems. It was, after all, of her own free volition that Yates deprioritized clemency, chose to rejoin King & Spalding, and specifically chose to enter its “Special Matters and Government Investigations” practice.
Yates is a deep DOJ institutionalist, and that seemingly includes DOJ’s institutional problems.
Ignoring the Innocent: Yates on Sentencing
As a bipartisan consensus has emerged around sentencing reform in recent years (amazing how some Koch money changes Republicans’ minds), Yates has come to toe the newly-uncontroversial line. It was a different story in 2015, when she said at her confirmation hearing to be deputy attorney general “Senator, I believe that mandatory minimum sentences are an important tool for prosecutors.”
She went on to support modest reform to the policy for an unusual reason: “we have a serious fiscal reality that we are facing now, and that is that our prison population is exploding. And as a result of that, resources that would go to prosecutors and federal agents to be able to investigate and prosecute crimes, are being diverted to the Bureau of Prisons. The Bureau of Prisons now takes up almost two-thirds of the department’s budget. That’s really untenable and unsustainable.”
In this formulation, the problem with mandatory minimum sentences is one of budgets and national deficits — we have to stop ripping drug users from their families not because it’s wrong to do so, but because they cost too much money, darn it. Yates reiterated this stance in a 2017 interview with The Hill: “For some people, it’s purely fiscal that even if we wanted to keep incarcerating people at the same levels we just simply can’t afford to do this. Some folks come at it from a faith or a redemption perspective, some from a social justice perspective. … I don’t really care what your motivation is or what gets you there the important thing is that we get there.” That’s perhaps a practical political strategy on this one, narrow policy question. It is not a philosophy of justice which most Americans, let alone Democrats, support.
The limits of that philosophy rear their head when looking at another aspect of the mass incarceration crisis: pardons. In 2014, the Obama administration undertook an ambitious project to pardon 10,000 wrongfully incarcerated individuals — and by March 2016, only 186 had actually been freed, less than 2 percent of the stated goal. Obama’s pardon attorney Deborah Leff wrote a letter to Yates all but directly blaming her. “[T]he Department has not fulfilled its commitment to provide the resources needed for my office to make timely and thoughtful recommendations on clemency to the President,” Leff wrote, adding that “I have been instructed to set aside thousands of petitions for pardons and traditional commutations[.]” Yates would have been the one sending those instructions — as Deputy Attorney General, she ran the day-to-day operations of the Justice Department, including deciding which DOJ documents got to the President’s desk.
Judging by Yates’ own actions when she wielded power, she seems to fear embarrassing the DOJ lawyers who imprisoned wrongfully incarcerated people more than she believes their imprisonment is an injustice. Better to uphold the Department’s image than to enact the Department’s namesake.
Protecting the Guilty: Yates and BigLaw
It is clearly wrong to prosecute the innocent, but what about protecting the guilty — specifically, the wealthy corporate executives guilty of white-collar crimes like tax evasion, corporate pollution, corruption, and more? Within DOJ culture, it is seen somehow as honorable and justified to teach C-Suiters how to undermine Justice’s own work. Yates herself did so shortly after her government career came to a high-profile end.
It’s important to remember that Yates chose to join King & Spalding’s “Special Matters and Government Investigations” practice — surely, no shortage of civil rights firms, plaintiff-side firms, non-profits, universities, or other organizations would have leapt at the chance to employ a former acting attorney general. We likely wouldn’t have had the time to bemoan Yates some well-compensated speeches to a few fat cats if in the meantime she were teaching law or helping seek justice. But instead, she decamped to a firm which describes its line of work as “leveraging bipartisan relationships to ensure clients maximize their exposure and influence in Washington.”
This is critical in understanding the difference between normal private sector and revolving-door private sector work. Had Yates joined a firm which wasn’t selling her to clients as an expert at understanding Main Justice, that would have been completely fine. But Yates’ practice apparently “focuses on counseling clients in complex and sensitive matters, including government enforcement and regulatory matters, congressional investigations, compliance, […] and crisis management.” [emphasis added]
Moreover, we won’t know the list of clients with whom she’s consulted until she is nominated, or in other words, until Biden has a strong stake of pride and legitimacy in seeing her confirmation through to the end. King & Spalding clients include Google, which the DOJ is currently seeking to end as we know it (Yates is refusing to say whether she helped advise Google and parent company Alphabet before an antitrust hearing earlier this year); Chevron, which contributed to K&S’s failing grade by Law Students for Climate Accountability (check out this jaw-dropping K&S webpage painting themselves as the heroes for, before Yates’ time, filing arbitration proceedings against Ecuador on Chevron’s behalf); and Equifax, including representing the firm against a class-action suit by consumers exposed in their massive data breach. In the absence of hard confirmation otherwise, one should assume that Yates has consulted for these and other firms.
Normal litigating is hardly the same as counseling clients about the Justice Department’s enforcement strategies — which units have the funding and morale to conduct extensive investigations, which division heads are most likely to accept an under-the-radar settlement, and so on. This is much of what BigLaw firms with shops called things like “Government Advocacy and Public Policy” provide.
Moreover, the specific firm to which she revolved out (where Yates’ career started decades ago) is now facing open protests by law students and anti-Trump activists for its willingness to pursue facially anti-democratic lawsuits.
One of Yates’ fellow partners at King & Spalding is Bobby Burchfield, who has served as the ethics adviser to the Trump Organization across all of the last four years, including “scrutinizing potential deals and business partners.” The Trump Organization, of course, has been famously unethical across all four years of the Trump presidency. Just one example of its routinized conflicts of interest is Burchfield himself — while advising the President’s business, he has also acted as the President’s personal lawyer in legal efforts to allow as few North Carolinians as possible to vote.
Take a second and let the Orwellian ethics of King & Spalding wash over you. Yates’ partner is Trump’s “Ethics lawyer.” What sort of self-respecting officer of the court could provide Trump with permission to, among so many conspicuous violations of law, blatantly accept emoluments both foreign and domestic?
Currently, the People’s Parity Project is mobilizing law students to refuse jobs at King & Spalding, among other firms, in protest of their ties to Trump’s anti-democratic actions. The rage even prompted street protests in Washington, D.C. It’s a testament to BigLaw’s sway over, and ability to profit from, all sides of our political discourse that one of the firm’s partners may be the next attorney general even as it is spat upon for a different partner’s ties to Trump.
Biden has the power to take meaningful action against Big Oil, Big Pharma, and more as soon as he becomes president — but many of those powers run through the Justice Department. At the same time that Yates has become a CNN fixture, she’s been part of a firm advising, defending, and abetting many of these industries’ worst abuses. Moreover, she’s rubbed shoulders with the very Trumpists her public persona is built on bravely defying.
Her time in power, moreover, reveals an institutional interest in defending the Justice Department’s image more than correcting its grave past errors. Sure, there is now bipartisan interest in a few narrow tweaks to American carceral policies. But do we want an attorney general only willing to do the right thing when it is politically palatable? Take policing. For two-and-a-half decades, the Justice Department has failed to perform its legal duty to gather and release data on police use of force, openly defying a law passed in 1994. This is clearly wrong. It is also the institutional policy of the Department, and was throughout Yates’ DOJ career. It will be politically thorny, but clearly morally right, for Yates to begin enforcing this law and holding her own prosecutors and the nation’s police accountable. Will she?
Refusing to deport Muslim travelers, while undeniably just and admirable, is not in itself a sufficient qualification to become attorney general. One should hope that the next AG will not shy away from necessary reforms merely because they are controversial, and will be able to demonstrate independence from the powerful forces — both Trumpian and corporate — that they will need to pursue in order to protect the public and enact its will for justice. Yates’ record at DOJ and King & Spalding should call these qualities into question as the Biden team weighs its options for AG.