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In the USA, acting attorney general Sally Yates was fired, apparently because she considered that an executive order by the President was unlawful and instructed staff not to defend the order in court.

Are there any offices in the USA that where there is a requirement (such as by law, by oath of office, by employment contract) such that loyalty to the President has precedence over loyalty to the law?

In other words; are there any positions in which a person has to follow what the President instructs, even if he or she believes this order to be against the law? What if the President orders something illegal? Could anyone be shielded from legal liability if they can prove that they were carrying out direct (illegal) orders from the President, or would they be legally required to refuse to implement illegal orders?

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    "require" by law, or by whim of the dude who's your direct manager (aka President), who has the power to fire you because of that relationship? – user4012 Feb 3 '17 at 11:37
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    FYI, some offices explicitly require oaths similar to the one President takes (and that is explicitly about loyalty to US/Constitution) – user4012 Feb 3 '17 at 12:01
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    In the context of this question, would you consider the constitution separate from the law or a part of it? US soldiers, for example, swear to be loyal to the constitution first and loyal to the president second. – Philipp Feb 3 '17 at 12:20
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    @gerrit I was wrong, though. US soldiers swear to obey the president according to regulations and the Uniform Code of Military Justice, so it also puts the law above the word of the POTUS – Philipp Feb 3 '17 at 12:30
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    @Phillipp: as a former US Navy officer allow me to clarify: the oath is: I, [name], do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter. So help me God. Allegiance is sworn to the Constitution, as it and only it is the supreme law of the land. Politics are never involved. – Bob Jarvis Feb 4 '17 at 3:07
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The constitution of the united states is the ultimate law of the land, not the presidency. Therefore there is no such office that is shielded from the law due to loyalty to the presidency.

This is pretty similar to the Nuremberg trials, where a common defense was 'I was just following orders'. That didn't fly then and it wouldn't fly now. In fact, a theoretical situation similar to this came up during Trump's candidacy when he claimed his military officers would torture people if he ordered them to. By law the soldiers would have to refuse the order, and many military people came out as saying so.

So while many federal employees serve at the pleasure of the president and swear an oath to office (not the person) of the presidency, none are shielded from the law for their actions.

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    The law didn't stop soldiers of Abu Ghraib from torturing detainees, though. But to be fair, the soldiers took the fall for it and didn't even try a "just following orders" defense, even though the orders likely came from Donald Rumsfeld. – Philipp Feb 3 '17 at 12:46
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    @Philipp Yes,my answer is all based on paper theory. In reality the constitution is just a piece of paper and the oath is just words, so people can end up doing whatever. – David Grinberg Feb 3 '17 at 12:47
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    @gerrit This is getting into the scope of a new question, but no they would not be liable. Its a bit of a grey area, but simply speaking at this point the executive order is presumed to be legal until the courts say otherwise (which they have for some parts). Until then, its legally fine for employees to enforce it and the president to punish those who don't – David Grinberg Feb 3 '17 at 12:50
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    I know it's a movie but A Few Good Men illustrates this type of situation – ford prefect Feb 3 '17 at 14:53
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    "Infact" is not a word. I can't do an edit to insert just a space, but I believe the OP can. – Monty Harder Feb 3 '17 at 16:57
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Lets attempt to get at the root of your question: There is no legal protection preventing an appointed official from being fired for disobeying their superiors. Since that office is not elected (It is appointed by the President) they serve at his whim (within relevant employment laws I assume; please confirm that if you can).

This is basically similar to any hired employee being fired for insubordination. Yates's only recourse might be a lawsuit for wrongful termination.

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    So if they get an illegal order, they have the choice between risking trial and getting fired? Ah well. I suppose it's the same for a company employee ordered to dump toxic waste into the river. – gerrit Feb 3 '17 at 18:24
  • Indeed, it's the same unfortunate situation, although in extreme cases like this the legality of the orders could improves the chances of successfully suing I suppose. – user10303 Feb 3 '17 at 19:20
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    She can't be wrongfully terminated. She works at the President's pleasure and may be fired at his will without cause. It's not about loyalty. He can pick who is NOT allowed to work for him in the same manner as he picks which shoe store not to visit. There are restrictions on who is allowed to work for him. But the choice of who isn't allowed to work for the President is entirely his. – Dmitry Rubanovich Feb 3 '17 at 20:21
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    Employment law in the USA is really not that simple. – user10303 Feb 4 '17 at 2:37
  • @gerrit, as an AG, Yates wasn't facing the choice between getting fired or being tried. Lawyers representing their clients positions are not responsible for the clients' actions. A lawyer has to provide the best proper representation of his client's legal position. If she didn't want to defend a policy in court, the ethical thing for her to do was to quit. – Dmitry Rubanovich Apr 28 '17 at 22:55
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The answer is no.

Particularly relevant is Article VI, Clause 3 of the United States Constitution:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Note that this applies to state as well as federal officials, and that in this context within the U.S. Constitution, the term "state" means "state and local" (although not necessarily tribal government) officials.

Arguably, state officials with a legislative role who are not members of the state legislature aren't covered, but this does not reflect common practice and this hole is often filled by a state constitutional provision or a state law or a local government charter. Likewise, tribal constitutions, tribal laws and federal laws often fill the gap in the case of tribal officials.

The oath of members of the U.S. military is in accord with this principle. Even lawyers, since they are, in principle, officers of the court as well as members of a private profession, swear or affirm this statement.

A recent thread in the law section of stack exchange is also relevant and spells out the ideas of the qualified and absolute immunity of officials acting to carry out an unconstitutional order from a superior.

The upshot of that thread is a small number officials (mostly the President, legislators, judges and district attorneys) have absolutely immunity from civil or criminal liability for certain kinds of discretionary official acts. (No public officials in the U.S., even the President, have immunity for unofficial acts in violation of the law.)

But, most executive branch officials have, at most, "qualified immunity". This means that they are only subject to personal liability for money damages in cases where the meaning of the law with respect to the situation in question is "clearly established" which usually means that it involves a legal issue that has been resolved in a binding case law precedent. In cases where the law is not "clearly established" a subordinate may generally defer to his superior's interpretation of the law and the constitution without fear of civil liability in money damages to someone harmed as a result.

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Yes and no. There is no office which requires loyalty to the President above all else. The oath of office is always to support the Constitution (the document which authorizes all government actions as such). That having been said, many government positions make government employees President's direct employees. Anyone working in the executive branch of the government (with the possible exception of Vice President and any special prosecutors) work directly for the President because that is what the Constitution makes them. It makes them President's employees. And he may fire them at will.

  • Federal employees are not currently at-will employees. In fact, Trump is considering trying to change that, but currently that is not correct. – user10303 Feb 4 '17 at 3:13
  • mspb.gov/msp/msp8.htm – user10303 Feb 4 '17 at 3:38
  • @DoritoStyle, they don't need to be at-will employees for the President to be able to fire them at will. If they were at-will employees, anyone up the chain of command would be able to fire them at will. MSPB only governs actions which may not be taken by employees of the Federal Government acting in supervisory capacity. MSPB does not claim to have authority to review the President's actions. Nor is it clear whether a President fits the description of "supervising employee" for the purposes of such review even if such establishing of MSPB authority does not violate separation of powers. – Dmitry Rubanovich Feb 4 '17 at 8:20
  • @DoritoStyle, (cont.) MSPB only has authority if a dismissed employee has affirmative defense. This makes the question of whether her termination was subject to MSPB review moot. MSPB specifically does not have any authority in the absence of an affirmative defense. As an attorney, Yates had an obligation to argue the government's case to the best of her abilities in the face of any legal challenge. She explicitly directed DOJ staff to not argue government's case in certain situations. So she may have gone further than insubordination. She may have denied her client a proper representation. – Dmitry Rubanovich Feb 4 '17 at 9:39
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    While most employees of the federal government are not employees at will, generally speaking attorney employees in governments that otherwise have civil service protections are employees at will (at least at the senior level) on the theory that attorneys have a special duty of loyalty to their employer not shared by other civil servants. – ohwilleke Feb 4 '17 at 17:03

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