Without reviewing the statements in question, I would guess that he also understands that the Attorney General would likely resign or be fired in such a situation. How else do you imagine that it could possibly work? Do you think that any President would do otherwise? Especially when the acting A.G. was a holdover from a previous administration who was going to be out the door in a couple of days anyway?
That's not really where the consequences stop flowing though. Yes, the President has a right to fire an AG that refuses to implement a President's policy. At the same time, the public may draw certain inferences from that decision. If a big oil company fired its top lawyer for refusing to do something she though violated environmental laws, very reasonable inferences could be made about the leadership.
The US Attorney thing under Clinton is totally different. Nobody made a peep when Trump dismissed the previous AG. It is understood that these political appointees will be replaced as a matter of course. This criticism is in response to him dismissing Yates after asking her to stay on board as acting AG, in response to her exercising her legal judgment.
Also it seems everyone here is ignoring the fact that the WH wrote this ignorant EO without talking to the OLC, has already gone 0/5 in the court challenges thus far. But still fired her for not doing his bidding.
The criticism also hinges on the rather unbelievably public statement of "betrayal", particularly as that dovetails with Spicer's statement that people should "get with the program or get out". This makes political purge a rather inevitable conclusion, and we aren't even 2 weeks in.
In that field very low level jobs are entirely professional and very high level jobs are entirely political, which makes the oil lawyer analogy invalid. There is no professional insight in a political act and vice versa.
In this specific example she made a highly public political act containing no professional content, naturally that results in firing.
Even low level federal officials have an independent duty not to violate peoples' constitutional rights. They can be held personally liable for violating clearly established constitutional law, and following administration policy is not a defense. Usually the "clearly established" part protects the low level folks, but here you could see CBP line agents being held personally liable for excluding green card holders.
On top of that, the AG has additional obligations as an attorney. An attorney must sign her name to every legal argument she makes to the court. She may not permit a non-attorney to override her legal judgment. Here, the AG did not hold a press release discussing the politics of immigration. She told her subordinates not to make legal arguments defending the order--arguments she would have had to sign her name to. It is absolutely an exercise of professional judgment, not policymaking.
Of course Trump can fire her for any reason. But the public is also entitled to draw reasonable inferences from those actions.
I think her legal objection was overbroad, in that there is some subset of the order that could have been defended in good faith. And, in general, the right thing for a lawyer to do when she cannot proceed on ethical grounds is to resign quietly so as to not prejudice the client.
But I think Dershowitz ignores crucial situational context. He says: "A responsible attorney general would seek to analyze these complex issues before jumping into the political fire with a blanket refusal to defend any part of the order." That's fine and good in theory, but this order was implemented over a weekend with apparently no vetting by the DOJ. It was almost certainly unconstitutional as applied in many situations. And Yates would have to send attorneys into courts to defend the order right now. She did not have the luxury of taking time to figure out what "parts of [the order] are legally defensible."
Remember, contemporaneously with firing Yates, the White House did a 180 on one of the key legal interpretations: that the order applied to green card holders. You do not go into court and advance a legal argument, and then tell the court sometime later "oh, now that we have had a chance to actually analyze these complex legal issues, we were wrong on A, B, and C." As a supervising lawyer, Yates could not tell her subordinates "defend the order for now, but we may have to walk some of this stuff back once we figure out what is actually legal."
