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The Don and the Constitution

with John Yoo,
hosted by Richard M. Reinsch II

Richard Reinsch:

Welcome to Liberty Law Talk. I’m Richard Reinsch. Today, we’re talking with John Yoo about his new book, Defender in Chief: Donald Trump’s Fight for Presidential Power, that’s just been released. John Yoo is the Emanuel S. Heller Professor of Law at the University of California, Berkeley. He’s a visiting fellow at the Hoover Institution and at the American Enterprise Institute. He worked in the Department of Justice under President George W. Bush and was General Counsel to the US Senate Judiciary Committee and has written and published numerous other books. He’s been on Liberty Law Talk to discuss them a few times, and he’s widely cited and published in a number of other forums. So, John, we’re glad to have you to discuss your slightly controversial book today.

John Yoo:

Richard, thanks a lot. Thanks so much for having me on, and like people always say, long-time listener, rare guest. So I’m really-

Richard Reinsch:

Well, we’d have you on more often, but you’re always on Ricochet with Richard Epstein. I don’t want to tax your podcast abilities there, too many appearances.

John Yoo:

Well, Richard and I should come on and be guests with you, which you and I would both talk 5% of the time.

Richard Reinsch:

Yeah, I know. That would be great. No, I’ve interviewed him before, and I got maybe 5% of the comments in to his 95%. I haven’t forgotten that. So, John, thinking about this book, Defender in Chief, now, something of a change for you. I don’t recall you being a supporter of Trump first time around and I’m not necessarily saying that you are now, but you do argue in this book, in myriad ways, Donald Trump’s presidency has been in defense of the Constitution. So maybe tell us why you wrote this book.

John Yoo:

Thanks a lot for having me on, and I really care what the listeners of this podcast think about the book because, as I said, I regularly listen to all the episodes and this is the podcast that, to me, is the most originalist in a way, the most deeply engaged with political theory, constitutional law, history, all the stuff I care about. Sometimes I say this book is a trick. It’s an effort to get people interested in Trump to actually learn stuff about the presidency. And as you know, my analysis is primarily originalist but with a lot of Constitutional history. So the reason I wrote the book. Look, four years ago, I was not a supporter of President Trump. I wasn’t the Never Trumper, I suppose, because I didn’t sign any of the many letters circulating, but I wrote op-eds very critical of him.

And four years later, I find myself in the position of agreeing more with his defenders than his critics, and for this reason. If you care most about the Constitution, four years ago, you might’ve thought and I worried that Trump would be a populist. And populists, we’ve seen over the years, are the ones who most strain against Constitutional understandings and traditional limits on their powers. They’re the ones who think they have a broad popular mandate to achieve something, and old things like the Constitution or tradition get in the way. So that’s why I was worried four years ago. But now, take a look in 2020 after Trump’s first time, what do we see?

We see his critics are the ones who are proposing radical Constitutional change, it seems to me. His critics are the ones who are proposing to abolish the Electoral College, to start manipulating the size of the Supreme Court just because you don’t like the outcomes and add six justices to the Court, to make independent counsels permanent and criminalize our politics again, and nationalize the energy and transport sectors, and you go on and on. So what I found looking back on the last four years is I’ve found Trump was the one who was relying, in my view, on very traditional understandings of presidential power, who was obeying the courts, who was citing congressional delegations’ authority. Now, I think politically he’s been a disruptor, and you’ve had a lot of guests on who’ve talked about the way the presidency has operated the last four years as a political matter. But when it came to the Constitution, I thought Trump actually was mostly defending himself and the constitutional traditions we have from a left that really wants to overturn the way we’ve run for the last 220 years.

Richard Reinsch:

On this point, you say in the book … I didn’t know what to expect as I was going to read it. It’s not so much affirmative steps Donald Trump is taking as a president. It’s more of things he’s reacting to. He has policies, they are vehemently opposed by his opponents, and then as they’re coming at him in various ways, we can go through those. It’s more of what he has to do to defend the constitutionality of the policies that you speak about in the book. It’s could he fire James Comey? Was that a violation of the Constitution, or was that corruption? Or on impeachment, you have a discussion of that. You also have a really interesting discussion of the Electoral College and is that a legitimate institution or is it tainted by slavery, which many have argued, and you take that discussion head-on. You also talk about Trump and the wall and the appropriation of funds. So maybe we can go through those things. But I took that to be instructive. It’s this intense opposition, the willingness to defeat Trump, by hook or by crook, and the thing that he has to fall back on is really just the Constitution itself, and then he ends up defending it that way.

John Yoo:

It’s a great point, Richard, because I didn’t think of it that way before, the way you put it. But if you look at many people who are originalist or conservative, their criticism of the modern presidency has been, “Oh, the presidency has become this unconstitutional innovator, someone who’s always trying to change things, he’s radical.” This was actually what the liberal theorists of the presidency in the ’60s and ’70s wanted out of their president. They wanted them to break through and change things. You’re quite right, Richard. If you think about it in the way I look at issue by issue, Trump is actually using presidential power in a more minimalist, I guess you could call it, fashion. He’s trying to defend the core powers of the presidency. He’s not really using those powers to innovate. He’s almost using it to defend. It’s a negative use of the … And if you think about some of these issues, he’s using presidential power actually to try to make the reach of the federal government smaller, not larger. So take foreign policy, for example. We’ll talk about it, too, I assume. He’s withdrawing troops from abroad. He’s terminating agreements. Most of the criticisms of presidents have been, “Oh, you’re sending troops without congressional approval. Oh, you’re entering into international agreements without sending it to the Senate.”

Trump’s doing the reverse with presidential power. So he’s using the constitutional powers of the office not to aggressively expand, but he’s using it just to defend this core. So the two examples you mentioned, I think, are good illustrations. Mueller and impeachment before firing Jim Comey. I think of the first as an effort by Trump to restore elected political control over law enforcement, which is his constitutional authority under Article II. I think of impeachment as a fight over the president’s ability to manage foreign policy, both in the face of these progressive era bureaucracies, in a way, that want to be independent and technical and have judgment and expertise and not be under the thumb of politicians.

His critics said, “We not only have the right to review the legality of what the president did, the executive order on banning entry into the country, we have the right to guess what was in the president’s mind when he issues or she issued that order. And, in doing so, we’re allowed to guess at what the president was thinking before he was even president.”

Richard Reinsch:

Yeah. No, it really is. It occurred to me as I was reading your book an interesting experience last fall at the Georgia Political Science Association on a very nice panel to discuss my book, A Constitution in Full. Then I got invited to be on a Trump panel, and you’d be the only conservative on the panel. Of course, I said, “Well, I’m not really a Trump guy. I’m sort of in-between. I call balls and strikes on the administration to the extent that I write about it.” Soon, I am on the panel, and it’s eight to one, and I’m a point four or something. The level of opposition to everything Trump does or had done on the panel … And I found myself several times responding to questions and just going back over basic points of executive power and the Constitution and then how that had been augmented not by Trump but by progressives in the early twentieth century and enlarged to its present state and how we do have a federal statutory presidency that’s been greatly expanded through delegation of authority discretionary powers as well. It was sort of like, “Has this not dawned on you?” The level of opposition there, it made me think, “Well, this is a micro-experience of what’s going on writ large, I think, in Washington.”

John Yoo:

Come out and spend some time out here in Berkeley. It’s a little different than in Georgia.

Richard Reinsch:

No, I am convinced hell hath no fury like academics in a red state. But, in any event, as I read your book, I thought, “Yeah, these points John are making, this is all just bedrock stuff here,” but it gets buried by the level of opposition to Trump and of course by his tweeting and his personality. But you open with this, the Electoral College, he loses by, what was it, three million votes, the popular vote, to Hillary Clinton. And if he wins in 2020, it may very well be by something like that. So the Electoral College is now under assault. An argument that’s made … I remember hearing it in law school from Michael Gerhardt, who was my professor, that slavery built the Electoral College to protect the interests of the slave states. That’s now common in progressive circles, and then you also quote the scholar Finkelman, and I’ve read his book, where he makes this point. Even Michael Paulsen on this podcast said this, and he says it in that book he wrote with his son on the Federalist Papers. I challenged him on that and he produced a Madison quote, that was it. Let’s talk about that for a minute. Trump’s not really out to defend the Electoral College, although the way he won in 2016 and may win in 2020 brings that up. Was the Electoral College built on the desire to, what, protect Virginia or something like that?

John Yoo:

Trump, he might thank his family, he might thank his friends, his supporters, but his biggest supporter has actually been the framers because he has really benefited from the Electoral College design, the way impeachment’s designed. He’s benefited from the structure of the Constitution maybe more so than a lot of recent presidents. But to answer your question directly on the Electoral College, yeah, a lot of people don’t like the Electoral College. It seems ramshackle. But when you go back and look at the history of it, I think it makes more and more sense, and I think this allegation that it’s somehow racist in intention or was done to protect the slave states is wrong, or if it’s right, then the whole Constitution suffers from the same problem. Because, really, what the Electoral College is is not an effort to protect slavery, and I went through in the book, very carefully through-

Richard Reinsch:

Yeah, you do a great job.

John Yoo:

… the Constitutional Convention evidence, and it’s just dependent on basically one sentence said by Madison in the debate that was not public when the Constitution was ratified. This was in the Philadelphia Drafting Convention, and it’s not clear it represents anybody’s view. It’s not even clear it’s representing Madison’s view. But the idea, more importantly, was that the founders were trying to strike a balance because they rejected the idea of direct democracy, and that’s not just the Electoral College. In fact, the Electoral College is one of the weakest restraints on direct democracy. Think about the Senate, for example, or judicial review. Those are much more anti-democratic than the Electoral College. But they didn’t want to go for a direct vote. They also, on the other hand, rejected the idea that Congress should pick the president. They didn’t want us to become like what would be the modern European parliamentary democracies where there was no separation of powers and the executive just worked for Congress or was an agent of Congress. So they used the Electoral College to try to have independence from the legislature but also to mediate democracy through institutions, and that’s very typical of the Constitution throughout, and the Electoral College was just one effort to do that. It only matters, though, in close votes. If you think about it, the Electoral College doesn’t matter when the people are overwhelmingly or clearly of one mind on who they want to elect.

The second part about this racism point was that when they were designing the Electoral College, people observed that if we go to the system we have now, where the votes are allocated by the states but those votes are counted up or allocated by voting population, using the members of the House plus those in the Senate to come up with the number of votes. Then one delegate said, from North Carolina, a guy named Williamson, he said something along the lines of, “Well, the three-fifths rule will benefit Southern states.” So from that one sentence, people think, “Oh, the electoral college was this huge effort by Southern states to give themselves an advantage because of this three-fifths rule.” But when you look at it closely, it doesn’t come out that way. The slave states and the free states did not vote together on the Electoral College. In fact, if you think of it, Southern states would’ve maybe even disfavored that and wanted to have the Senate pick the president or something or just have the states pick the president, which were also mechanisms that were being thrown around at the time. In fact, this method was much more responsive to democracy than a lot of the other choices make. Nonetheless, I’ll just make this … Whatever was going on then in Philadelphia, again, which was not made known to the states during the ratification process, that effect was removed by Reconstruction. You could say the House of Representatives was equally racist and the Senate, too, but when the three-fifth rule was eliminated, slavery was ended, then the Electoral College, if it ever had that kind of taint to it, the Electoral College loses it after the Civil War.

Richard Reinsch:

Yeah. It seems to me, and you pointed this out, South Carolina and North Carolina vote against the Electoral College?

John Yoo:

Yeah, yeah.

Richard Reinsch:

I didn’t-

John Yoo:

They did.

Richard Reinsch:

And if you think about it, South Carolina is one of the key states that probably does not join the Union if they could not bring their slaves.

John Yoo:

This is my small, small contribution to the history. It’s a very small contribution because I saw no one went back and checked how the states had voted.

Richard Reinsch:

No one ever goes back to the three-fifths rule and looks at the Constitutional Convention to see who introduced it. It wasn’t Southerners, it was Northerners who were doing it. You could argue it’s a compromise. You could also argue they’re trying to preserve some element of popular sovereignty as well.

John Yoo:

Exactly.

Richard Reinsch:

But who cares about history? We’ve got the narrative. Thinking about this, though, and it’s also the case with the Electoral College, this is never really considered, it does mean that parts of the country matter outside of large population centers. It means that one has to put together different parts of the country to win that might be disparate and different, and that also seems to get glossed over. Immediately, when Trump comes into office, let’s talk about the travel ban. You spend a lot of time in the book talking about that and how that’s used against Trump. He said that he’s acting on constitutional … You argue the first one was discrimination against Muslims, but then it gets revised two more times, and yet district courts continue to throw it out on the basis of inferring back to things Trump said on the campaign and that becomes a way for them to throw out the travel ban. But talk about that and what’s going on there.

John Yoo:

I think the travel ban is a good example of this dynamic that we’re talking about, and it happened right away, so we should’ve been able to see pretty early on what this dynamic was going to be for the rest of his presidency. Okay, so Trump does put out this travel ban. He doesn’t claim that he has a constitutional power to do it. He doesn’t actually say … He could’ve. There’s some authority for the idea that the president has some power over the borders. But instead part of the immigration law says if the president finds there’s a national security threat posed by immigration from certain countries, then the president can stop it. In fact, no one’s complaining about Trump using that power now with China and the COVID epidemic, right? In fact, people are criticizing him for not doing it earlier. But that’s not a power the president has in his constitutional arsenal. He just claimed he had it … So, okay, so Trump says, “I’m going to do it with these countries,” and then he says, “I’m going to give an exception for Christians coming from these countries.” I think that was the constitutional error, and a district judge, I think, also went over the top and tried to enjoin the whole thing even though he’s just one district judge, I think in Seattle.

Now, if Trump were the dictator that people make him out to be, then what he did next doesn’t make sense, which is he said, “Okay, I was wrong. I’ll change the order.” Then he changed the order and went through the whole process of litigation all the way to the Supreme Court. He didn’t defy any judges, he obeyed every judicial decision, and won at the Supreme Court. And even there, people who were attacking him wanted to introduce, I think, something which would amount to a Constitutional revolution in the treatment of the presidency, which was his critics … And I’m afraid the Supreme Court nodded towards this, although it didn’t weigh on it.

His critics said, “We not only have the right to review the legality of what the president did, the executive order on banning entry into the country, we have the right to guess what was in the president’s mind when he issues or she issued that order. And, in doing so, we’re allowed to guess at what the president was thinking before he was even president.” But the sense in this case and the lower court decisions that tried to stop Trump went through all of the things he had said as a candidate before he was even employed by the United States government as evidence that Trump was a closet racist and was trying to achieve racist objectives with an order which was otherwise, now at this point, facially constitutional, I think, well-rooted in delegated power from Congress. Think about what would happen to the running of the executive branch if someone could sue and just say, “Well, I don’t care what the president’s order says or what this delegation does. I question the motives behind it.” You could tie up every single decision in the government with that kind of rule. People didn’t care, though, because they were out to stop Trump.

I never thought that my former colleagues, and some of them are still friends, who work in those agencies would turn the vast power of government, again, back inwards and surveil the candidate of the other opposition party for president. I’m still stunned by that.

Richard Reinsch:

I remember thinking about that. I don’t understand the nature of or the law around injunctions, of the ability of one judge to basically stop it nationwide. Maybe you can talk more about that. But this notion, too, it’s sort of like just arguing or having an argument with someone. You can easily shortcut having an argument by guessing their motives or throwing their motives, what you think their motives are, back at them. Motives are very easy to use in that way. But what’s hard are principles and ideas and law. That just always seemed to me a poison seeping into the most formal part of the federal government, being the federal courts, where it really can’t be. Then, also, law professors, but you see this constantly even today, referring to this as the Muslim ban by very well-regarded law professors. It just adds, I guess, to what we’re talking about, this inability to think coherently.

John Yoo:

I was going to say, Richard, it’s bigger than that, and actually I wish I had made your point in my book’s discussion of this because I hadn’t thought of that. But what you’re saying, which I think now that I look back is completely true and we’re seeing it amplified right now in the streets and these protests and everything, is this is the way the culture is … A great example, this is the way the political culture has seeped into the law, which is right on campus now. Yeah, I just never thought of it that way, but you’re completely right. On campus, you see people shouted down, you see people canceled, not for what they’re going to say in any speech or article but what they think their racist motives are behind it or just based on their skin color or what they’ve said dozens of years ago or even what they didn’t say at some point. Right? And if you do that, you short-circuit traditional argumentation, rational analysis. And you’re quite right actually, Richard. If you think about what happened in that case and the cases since with Trump, that style of argument is now starting to pop up in Supreme Court opinions, and that’s sad. But I think you’re right. I think you’re exactly right. I just never thought of it that way. And Trump, in a way, is fighting against that, although he may not even realize it. But that’s why-

Richard Reinsch:

He probably doesn’t.

John Yoo:

… probably people say he’s quite popular.

Richard Reinsch:

Yeah.

John Yoo:

People say he’s popular because he’s anti-PC, and maybe in these reactions, that’s how he shows he’s fighting against that cancel culture dynamic.

Richard Reinsch:

What is another defensive maneuver here is the Obama administration during the 2016 campaign, we all now know, opened Operation Crossfire and proceeded to investigate Hillary Clinton’s opponent, their opponent, on, I think Andrew McCarthy argues in Ball of Collusion, a pretty thin pretext, probably violated Justice Department protocol in investigating political campaigns. Their justification was basically two low-level guys they thought had indicated information about possession of Hillary Clinton’s emails and that justified an investigation. It’s not so much that, but it’s the use of the FISA Court, and maybe we can talk about that. The FISA Court itself is an attempt to limit executive power with regard to domestic or counterintelligence and forces the government to come to a court and show some sort of evidence for wiretapping or engaging in counterintelligence. And, of course, the other party doesn’t get to make an appearance. They don’t even know. But what we now know is the memos that the government put forward there were corrupt in some cases and were not fully revealing, shall we say, of where they were getting their evidence. That in itself, I think, has brought to light a discussion about the FISA Court. How do you see it?

John Yoo:

Richard, yeah, you’re too good a interviewer. I’m not coming on your podcast anymore. This was, I think personally, for me, the most difficult part of the book to write, actually. It was because, you and I have discussed this before and I’ve had the pleasure of going to Liberty Fund conferences where I am often one of the sole defenders of the intelligence bureaucracy, but I was involved with this back in my government days. After 9/11, we amended FISA to expand its scope, and I was one of the people who worked on making it easier to get FISA warrants. One of my views was that, look, FISA came out of this worry that Nixon had used the CIA and the FBI to spy on his political enemies. And I always thought, “Well, FISA was overdone because that’s never going to happen again.” I was like, “Everybody knows that’s a red line. You don’t investigate your political enemies using our current espionage and terrorism powers.”

I worked to loosen FISA so that it could be turned more directly and easily at Al-Qaeda, ISIS, our foreign enemies, China and Russia, because it was really hamstringing our ability to do that. What I never thought … And the guys I argued with at the Liberty Fund conference turned out to be right. I never thought that my former colleagues, and some of them are still friends, who work in those agencies would turn the vast power of government, again, back inwards and surveil the candidate of the other opposition party for president. I’m still stunned by that. In part, that’s why … I don’t know if you remember. Throughout the Mueller investigation, I was always saying, “Trump should not fight it. Let Mueller investigate it because from everything I’ve seen, there’s nothing to it, and Mueller clears him, that’ll be the gold standard and everyone will have to believe it.” Because after I saw the early discussions of how FISA was used, I was shocked, and I’m still shocked that they would use it internally that way. Maybe FISA needs to be strengthened when it’s used in this way. I think Attorney General Barr is doing that. I’m still shocked about it.

What was really happening is the 18th century Constitution says the president has this responsibility and the power to take care the laws are faithfully executed. That means everybody who works on law enforcement works to assist the president and should be removable by him. Comey or even Mueller, they think that law enforcement is a professional function or scientific or technical function and, as Woodrow Wilson wanted, they should be insulated and kept as far away from the control of the politicians.

Richard Reinsch:

Andrew McCarthy said the same thing. He also had a significant career as a federal prosecutor, we know.

John Yoo:

Oh yeah, much more than me.

Richard Reinsch:

Yeah, the 1993 World Trade Center bombers, he put those guys away. But he was blown away also by this blatant abuse of power. We know now one of the lawyers has been referred for prosecution or will be prosecuted. He’s been indicted, who just reversed a brief to say that Carter Page was not a CIA asset, which of course made it look like, “Well, why are you investigating him if he’s already cooperating with the government,” and he just lied about it. It’s incredible.

John Yoo:

I think he’ll be the first guy ever prosecuted for lying to the FISA Court. Ever. It’s still quite amazing.

Richard Reinsch:

I guess my feeling on the FISA Court is do away with it because I think it loosens the accountability of the federal government. I think it gives everyone the wrong incentives. What the executive branch should be is just liable in full for what it does on these things instead of this insurance check of a FISA Court. If it wants to surveil, it should have to own up to it in some capacity. But this also assumes, and we’ll get to this, that Congress itself is willing to really monitor the executive branch and use its constitutional powers to discipline it, which it really doesn’t seem willing to do anymore.

John Yoo:

Yeah. Actually, I think there’s a neat and easy solution to this, although people will think I’m doing it just to expand presidential power. I’m not. I’ve actually got just civil liberties in mind, which was the way it was before FISA, which is the president authorizes surveillance for national security concerns. This is because someone’s a real threat to national security, and then the evidence can never be used against you in court. And if it does, if the government tries to introduce it, I would have a blanket rule just saying the surveillance was never started under the Fourth Amendment, never got a warrant or whatever, so you can’t use it in court. But if it is used in court, then the president is on the hook. He’s individually responsible for its use, and he can be punished for it. That’s essentially what happened with Nixon, and I think that sometimes we don’t need a court solution, and all we need is enough for the political actors to tout a remedy, which is what happened then. I thought that was actually a good outcome in terms of the abuse of those powers, and I think that’s superior … As you say, this current system blurs responsibility and … But that’s the species of the whole thing. It’s a very typical, seems to me, progressive idea about government.

That’s also, I thought, the bigger picture of what’s going on with the FBI. You take out the day-to-day fighting with Comey, with Mueller, what was really happening? What was really happening is the 18th century Constitution says the president has this responsibility and the power to take care the laws are faithfully executed. That means everybody who works on law enforcement works to assist the president and should be removable by him. Comey or even Mueller, they think that law enforcement is a professional function or scientific or technical function and, as Woodrow Wilson wanted, they should be insulated and kept as far away from the control of the politicians. So that’s why Comey thinks or Mueller thinks they have the right to decide who’s fit to be the president, not the voters. I tried to figure out the themes that explained at a broader constitutional level these day-to-day fights because in the Trump era, we’re so consumed by the 24-hour news cycle and the latest thing that the House was saying about Trump or vice versa. But the larger constitutional picture, I think, is this is a fight between the 18th century Constitution and this Woodrow Wilson-inspired progressive theory of government that does not map onto our original constitutional structures.

Richard Reinsch:

I agree with you completely. It’s interesting, too. Watergate, the 18th century Constitution actually worked rather well, and yet we still got a series of progressive reforms out of it, which have made things worse in accountability-

John Yoo:

Yeah, it makes things much worse.

Richard Reinsch:

… and competition between the branches. It’s interesting thinking about Comey. Yeah, in a way it was, “Oh, well, the FBI is actually an independent agency,” or something like that.

John Yoo:

They think they are.

Richard Reinsch:

And the way the media covered it, how dare Donald Trump even think of firing Comey?

John Yoo:

Exactly.

Richard Reinsch:

It must be because you’re corrupt. Oh, and by the way, it’s unconstitutional anyway. What Comey had done frequently was lost, but Trump completely had the power to dismiss Comey. That was never in doubt. He had the power to dismiss Mueller as more of a prudential decision. It always is with Mueller. And it is interesting, as you point out, in letting it play out, he did remove that problem once and for all, and yet he lost essentially two years of his presidency, three years of his presidency.

John Yoo:

I actually think that this is a very interesting case study. I can’t think of another presidency that’s been like this, where essentially … Maybe John Quincy Adams maybe is the last time it’s happened, under attack from Andrew Jackson after the corrupt bargain. This president has spent maybe his first term just playing defense of his own legitimacy, and so that’s why people might complain this is more or less the constitutional now, the certain political science aspect of it. People complain what is the Trump agenda? What is the second term? Nobody knows because he never really had a chance to implement a first-term agenda. He never had the benefit of momentum from an election. Even though his party had control of Congress and the presidency, they got very little done because the presidency was consumed with him defending his own legitimacy. The things that he did do, it’s interesting, I think that they were efforts to narrow the federal government. One of the big things I think he’s done that people don’t pay attention to, I put a whole chapter in my book about those, the deregulation, shrinking the size of government, pulling the federal government back out of interference in state matters. These are not things presidents usually do, and they’re very hard to track and it’s not very sexy for the media, but the extent Trump’s been doing anything, he’s been using his constitutional powers to reduce the federal government’s agenda and activism than he’s been expanding it, which is what we usually elect presidents on after their first terms.

Richard Reinsch:

On this, too, I think this is also the progressive Constitution itself predictably has produced its own interests, hard interests in preserving and in using its powers, and I think that’s what has been working, in another area was during the impeachment matter. If you’ll recall, the whistleblower was Vindman, was his last name.

John Yoo:

Career civil servant.

Richard Reinsch:

Career civil servant Vindman. In testimony, and you quote this, he said that Trump’s views on Ukraine were at odds with what we agreed on in the interagency. I’ve heard that term several times, interagency, and the way it was used there is like, “Well, yeah, we’re the interagency.” So the interagency being, I guess, the nexus of defense intelligence groups and the way they formulate foreign policy and try and implement foreign policy. But his position essentially was, even apart from what you thought of what Trump said on the call, that somehow Trump’s views don’t amount or equal their own, and formulating foreign policy in that sense, the executive is not in control of the executive branch, really. It’s some sort of balance or competition between the president and those who serve permanently in the bureaucracy.

John Yoo:

It’s stunning because if you look at what the founders saw, you look at the great thinkers thought, back to Locke and Hobbes, Machiavelli, they would’ve thought foreign affairs and national defense were the most unpredictable, the most political areas of human life where you do need an executive right there to act swiftly and decisively, Hamilton’s phrases, with energy. And yet you have this permanent bureaucracy thinking, “Oh, no, foreign affairs is something that’s subject to scientific, to technical judgment. How can a president disagree with this?” It sounds like the Ten Commandments brought down from the mount. It’s, “Oh, the interagency process.”

You couldn’t find a better example of how extreme this progressive theory of technical government has gone when you would’ve thought if anything was going to be the most political, it would’ve been … Not political in the sense of partisan, but political in the sense of we vote for someone and that person wields our power and we hold them responsible and accountable and they make their own decision. You would’ve thought foreign affairs, diplomacy, national security would be the most political because that arena is so unpredictable. I think that’s an area where, really, you have little claim to some kind of scientific judgment. It’s not like figuring out how much of a certain substance in the water might cause cancer. It’s quite the opposite extreme because it’s really just human nature that you’re dealing with here, not chemical and mathematical properties.

Richard Reinsch:

I had Steven Teles on a couple of weeks ago to talk about his book, which is an assessment of where the Never Trump movement has gone. He walks you through their thinking, and he breaks them out into different groups. It’s the foreign policy group that’s been, not surprisingly I think, the most assertive and determined from the beginning, and Teles makes the point that this is a bipartisan group, and it’s probably the one area left in Washington where people serve in other parties’ administrations if given the opportunity. There’s a consensus that’s been working in foreign policy, as you know, for 30 years, and Trump was the first significant challenge to that other than other more minor figures. So I think they’re using the power of the government to defend their interests. It just so happens that this seems to run up against the Constitution itself.

John Yoo:

Yeah, that’s a nice point. When Trump uses these shorthands, these inflammatory words, there is some truth behind it. I don’t think there’s a deep state in the sense that I think the phrase first came out in the study of Turkey, but there is a permanent bureaucracy that has interests. And I don’t think there’s a swamp, but there are interest groups in Washington which clearly interfere with the workings of the government to get their client’s way, and I think you were probably right. Trump barges into foreign policy and he claims it’s been controlled by these elites who have suffered failures. I think the American track record’s been better than Trump might say, but at the same time, Trump is certainly right to say that he was elected in part to blow up that consensus and introduce a new voice.

And then foreign policy’s very interesting, and we’ve had these constitutional fights about foreign policy and the bureaucracy. As supported somewhat by Congress, the traditional view is to maintain or even expand American deployment and involvement in the world, and Trump is on his own reducing them, withdrawing from the agreements. I actually like to think it proves I was right all along about the war powers debate, right? Because if you thought the declare war clause idea, right, that you have to declare war first in Congress and then the president carries out just like the way Congress passes a law and then the president carries out, then how can the president withdraw troops from Afghanistan, Syria, and Iraq, how can the president terminate all those agreements when Congress is opposed?

To me, it shows, look, I was right all along. The president does have a fair amount of unilateral authority on foreign policy because he should be able to reverse all those things on his own, but yet everyone acknowledges that he can’t. But interesting thing, again, it shows that the president is advancing his agenda not by … It’s almost like, to use a fancy word, it’s like a presidency of abnegation, right? It’s a presidency of reducing power, not claiming and expanding power like Obama had.

Richard Reinsch:

Thinking about the wall, you write about Trump and the wall and the construction of the wall. There’s also this element where he’s playing with things that have been established long before, and so in that case, that he was violating the law, in a sense of because he took money that was appropriated for the military and put it towards the wall. How should we think about emergency declarations by the president, and what statutory authority did Trump have in that regard?

John Yoo:

I actually think most people who are opposed to it are opposed to just the idea that the president could do it on his own without a specific new congressional pot of money. But when you actually look at the statutes that are there on the books now, several of them actually passed by Democratic congresses, this is not an extraordinary or even, I would say, unusual exercise of authority. There’s something called the National Emergencies Act. It actually doesn’t grant or take away any powers. It just says if the president declares a national emergency, please tell Congress about it, please make it public. Doesn’t even define what a national emergency is. And then there’s other statutes on the book. There are hundreds of them which talk about what you can and can’t do in a national emergency, and there’s one that says if there’s a national emergency, the president can move money from one military construction budget to another military construction budget. It’s actually not even that controversial a statute. I bet it’s never been talked about before because it’s so much a matter of just our internal bookkeeping. So if the president says, “I think” … Gosh, I got to think that one thing that you could say was a national defense interest was control of the border. If you think about the history of our country, control of the border was the primary national defense interest for most of our history. It’s not till World War I we start really caring about what happens in Europe or Asia as part of our national defense.

Most of our history, our military was a border control military to defend the homeland, defend our borders. Seems to me it’s not difficult to say the president can declare a national emergency to create a wall along the border. Now, there are people who say, “Oh, well, what happens if progressives get in power and they’re to declare a national emergency over the climate?” Well, I think there’s a big difference between saying some kind of social problem or general environmental problem like poverty, crime, the climate is quote-unquote a national emergency versus specific events like disorder or inability to control a border.

The thing I always say is if you think that you show restraint or not on the border is going to deter progressives from using all these powers anyway to get their way on climate change stuff, I think that’s a whole other fight to have in the future. I think it’s a very distinguishable, different case. But let’s be frank, the real problem is that … It’s not that the president has claimed constitutional powers. The Congress decided to give huge amounts of authority away, and unless we’re going to figure out a way to curb all that through a non-delegation doctrine that really works, then I don’t see why there should be one kind of constitutional rule that restricts Trump when he’s president but empowers all other presidents because they’re not Trump.

I think what’s unbelievable is that the Supreme Court then comes in and says, one, “You’re not allowed, President Trump, to stop something because you think it’s unconstitutional. You have to keep doing it until we, the Supreme Court, decide it’s unconstitutional.” And then the second thing they said is, “If you want to undo President Obama’s order, you have to follow this Administrative Procedure Act.”

Richard Reinsch:

Well, what people ignore is there are a lot of things Congress can do if it doesn’t like an emergency declaration.

John Yoo:

Oh yeah. Just don’t refill that account with money.

Richard Reinsch:

Yeah. If Biden were to say, “There’s a global warming emergency, and I’ve got to do this, this, and this to fight it,” there are all sorts of ways. Not to mention that there’s also public opinion, but the quickest would be defund it, not appoint anyone. There’s all sorts of things they could do to hobble the government. The Congress holds the most power. We forget that. Question, we can end with discussion of Obama, particularly in the last two years of his presidency, resorted to a strategy of government by executive and engaging in actions that exceeded statutory authority, including the DACA program, the so-called DACA where those who were brought here as children received legal rights and privileges without authorization from Congress. And he did that in a number of areas, but that’s the one that’s come up in the Trump administration. Trump administration reversed it by an order from the attorney general, and then the Supreme Court recently ruled that that reversal of DACA was itself a violation of the APA, the Administrative Procedure Act. I guess my question to you is what exactly … Because I’ve received conflicting accounts of how to think about it. But what do you make of that decision by the Court and help us maybe to understand that?

John Yoo:

I think the Court is terribly mistaken on DACA.

Richard Reinsch:

Let’s ask this. Did the Obama administration follow the Administrative Procedure Act when it implemented DACA?

John Yoo:

No, no. But I think it’s good to look at it through the lens of the Court because it’s part of these disturbing trends in the nature of constitutional law in the Supreme Court that you’ve talked about in previous podcasts, which is this claim of judicial supremacy. Because it’s easy, actually, to break it down, what’s happened. So President Obama uses his prosecutorial discretion to say, “I’m not going to enforce immigration law against this category, the DREAMers,” about an estimatory two or three million cases. Then he issues DACA two years later, which is another six. So it could be eight or nine million people, could be more than a majority, a significant part of the illegal alien population. Okay. So I happen to think that’s unconstitutional. I don’t think the president’s prosecutorial discretion says, “I’m just not going to enforce the law because I disagree with it.” There’s an interesting debate about whether the president can refuse to enforce unconstitutional laws, but no one thinks the immigration laws here are unconstitutional.

So I don’t see why President Trump can’t come into office and say, “I am changing the level of prosecution of these cases as president,” and the primary reason is I think what President Obama was doing was unconstitutional, in my view. I think that happens all the time in the administrative … In fact, one of the chapters in my book, I think one of the president’s powers that we don’t think of as a power is what I call the power of reversal, which is the power to undo things that past presidents or past governments have gone. I think that’s pretty standard.

I think what’s unbelievable is that the Supreme Court then comes in and says, one, “You’re not allowed, President Trump, to stop something because you think it’s unconstitutional. You have to keep doing it until we, the Supreme Court, decide it’s unconstitutional.” And then the second thing they said is, “If you want to undo President Obama’s order, you have to follow this Administrative Procedure Act.” Some of the listeners are quite expert on this, but it’s a long, detailed process for issuing decisions of the administrative state. But it makes no sense here because President Obama didn’t use it when he made the DACA decision in the first place. He just said, “It’s a matter of my discretion.” So the Court says, “We’re going to make you use a long, burdensome process to undo a decision the previous president made in his executive authority under the Take Care Clause that didn’t follow that process.” That makes absolutely no sense.

You can say when branches of the government undo their own actions, they usually use the same form, right? The Supreme Court overrules a precedent, they issue a new decision. Congress wants to repeal a law, they pass a new law. Presidents want to undo executive orders, they just issue a new executive order. I wrote a kind of tongue-in-cheek piece about this saying, well, if this is true, then President Trump could basically do anything he wants now and say, “I’m not going to enforce this law, I’m not going to enforce that law,” just like Obama did, just search/replace immigration out of the DACA opinion and instead put in taxes, and it’ll take … President Biden will have to use the APA to undo it under the Supreme Court. That makes no sense at all, it seems to me. But what was behind it was this bigger trend, disturbing trend, I think, of the Supreme Court saying, “Only we get to decide what’s constitutional and unconstitutional. None of the other branches get to. President Trump doesn’t get to decide whether DACA was unconstitutional for himself. And we’re going to force the presidency to act in certain ways that we think,” right? I think that’s a stunning declaration of judicial supremacy that I think got missed because it’s about DACA.

Richard Reinsch:

That, and I also think there are just special rules right now against Trump. I’ve thought that with the Supreme Court and the way they treat the Trump administration. This is also troubling, we saw this in the Obama administration, in the sense of rules are issued by agencies outside of the APA on a regular basis. If this is the case, it would seem to incentivize that even more, which is-

John Yoo:

Yeah, so I think that’s right.

Richard Reinsch:

So you could deal with basically a lawless executive government now receiving a blessing from the Supreme Court, which has a ratchet effect on what it can do, one way ratchet effect, it seems to me. Yeah, no, troubling. John, I guess as you think about executive power, what is this that may sum this up for us as you look at your book?

John Yoo:

I don’t think President Trump has really innovated or impacted the constitutional presidency as much as he’s certainly disrupted the political norms of the office. There are other people who … I like to think I study those, too, but there are people who are much more expert at how presidents relate to the public, how they use the media, their relationship with political parties, and congressional/executive relations. As you started, you asked me why I wrote the book. I wrote the book in part because I wanted to show how Trump was operating actually fairly within the established practices, stemming all the way back to Washington and all the way back to the decisions at the Philadelphia Convention and the state ratifying conventions about the presidency.

He hasn’t been disrupting the constitutional presidency. In fact, if anything, it’s been his critics, as you just mentioned, the people who think there’s a special constitutional law that should apply to Trump. What worries me, though, is that people in their efforts to bring down Trump, to try to constrain the presidency, are harming the office for the future, no matter which party holds it, in the office’s ability to protect the country, to administer the laws, and the purpose of the executive, to respond quickly and decisively unforeseen events.

Richard Reinsch:

All right. Well, with that, John, we appreciate it. We’ve been discussing with John Yoo his book, Defender in Chief: Donald Trump’s Fight for Presidential Power. Thank you so much for your time.

John Yoo:

Ah, thanks a lot, Richard. And I promise I’m bringing Richard Epstein with me back on if you have me back.

Reader Discussion

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on September 15, 2020 at 09:35:50 am

John Yoo has brought out the best in this web blog. If my excellent memory serves me well again, I say confidently that this podcast is the first L&L discussion or essay which has accurately and fairly portrayed the constitutionality of the Trump presidency and the illicit constitutional motives of its enemies, and has done so while refraining from the usual anti-populist derision, niggling political reservations, not-so-subtle innuendo, tres chic snark, and personal mockery of Trump, the man and the president.

All in all, rather enheartening, albeit 3 years and 9 months late.

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paladin
on September 15, 2020 at 10:48:05 am

"But the larger constitutional picture, I think, is this is a fight between the 18th century Constitution and this Woodrow Wilson-inspired progressive theory of government that does not map onto our original constitutional structures."

Yes, certainly, of course. This reflects the Archimedean point, the crux of the matter. As concise and precise a summary of it all that you'll be able to find.

Terrific interview.

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Michael Bond

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