But this has it wrong. If Yates truly felt this way, she should have told the president her conclusions in confidence. If he disagreed, she had one option: resign. Instead, she made herself a political martyr and refused to comply. Trump obliged, and replaced her with the U.S. attorney for the Eastern District of Virginia, Dana Boente. While this late‐night termination may bring to mind President Richard Nixon’s infamous “Saturday Night Massacre,” the analogy is inapt. This is a textbook case of insubordination, and the president was well within his constitutional powers to fire her. Call it the Monday Night Layoff instead.
Let’s review the facts. In 1973, Attorney General Elliot Richardson appointed Archibald Cox as an independent special prosecutor to investigate the break‐in at the Watergate Hotel. Cox, a former solicitor general, issued subpoenas to President Nixon for taped Oval Office conversations. Nixon refused. Under the law in effect at the time, the president could not fire the special prosecutor directly. Rather, the attorney general could fire Cox, but only “for cause,” which required some neglect of duty. In other words, the prosecutor could not be fired because his investigation came too close to the Watergate cover‐up.
After ignoring the subpoena, on Saturday, Oct. 20, 1973, President Nixon ordered Attorney General Richardson to fire Cox. However, the prosecutor had not engaged in any malfeasance, and there was no “cause” to terminate him. Thus, the president’s order was against the law. Richardson refused to comply, and instead resigned. Shortly thereafter, Deputy Attorney General William Ruckelshaus assumed the position of acting attorney general. He too refused to fire Cox, and instead resigned. Third in line was Robert Bork. The solicitor general, now the acting attorney general, believed the president’s order was constitutional and appropriate. Bork complied, and fired the special prosecutor. It was a dramatic episode in constitutional history that gave rise to the independent counsel statute, and two decades later, President Bill Clinton’s impeachment.
Here’s why the feverish comparisons to Yates’ firing are off mark. First, the independent special prosecutor could only be removed for neglect of duty. Nixon had not demonstrated that Cox did anything wrong; rather, he was trying to shield his own cover‐up. In contrast, Yates, as acting attorney general, could be removed at will. Firing her in no way violated any statutory prohibitions. Rather, the president could fire her merely because of a disagreement in policy—which is precisely what happened here. That is perfectly lawful.