Why the Attorney General Can Refuse to Defend the President (or Governor)

In my interview with Ryan Winkler, who hopes to be the next Minnesota Attorney General, we spent a fair amount of time talking about what an attorney general does and the attorney general’s unusual position in the executive branch. This is particularly interesting in light of recent events.

After President Trump issued his executive order on border security and immigration, it was almost immediately challenged in court. But the acting US Attorney General, Sally Yates, refused to defend the executive order (which meant the Department of Justice would not defend the order). She explained that she was “not convinced that the defense of the executive order is consistent with [her] responsibilities, nor [was she] convinced that the executive order is lawful.”

Some condemned Yates for her decision while others lauded her for it. In any case she was quickly fired. However, Yates’s decision was not all that unusual.

For one thing, attorneys are not bound to do whatever their client wants. As Ryan explained, attorneys general represent the public interest, not the president:

The office itself is interesting for a lawyer … because its authority does not just come from the state constitution or state statute, unlike other offices. The attorney general actually was an office in colonial times and had standing in the common law to represent the public interest. That common law foundation for the authority of the office to represent the public interest—parens patriae—is still recognized in the courts.

For another thing, an attorney general has the same professional obligations as any other lawyer, like Rule 3.1 of the Model Rules of Professional Conduct:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

In other words, if Yates did not believe the executive order was constitutional, Rule 3.1 says she should not defend it. Now, as a practical matter you can usually come up with a non-frivolous argument for just about anything, even if it isn’t a very good argument. That is pretty much what the Department of Justice has been doing since Yates was fired.

Many people have also criticized President Trump’s for his decision to fire Yates, while others have lauded him for it. This is where there is a difference between the US Attorney General and the Minnesota Attorney General. The president gets to appoint the US Attorney General, but the Minnesota Attorney General is elected. That means the governor can’t fire the Minnesota Attorney General. Only the public can do that, by voting.