Donald Trump, Constitutional Grift, and John Yoo

The former Bush administration lawyer defends Trumpian assertions of power. He’s not convincing.

There is a species of executive powers scholarship that never gets very far past—or all the way through—Federalist No. 70. That’s where Alexander Hamilton famously argued that a one-man executive branch would bring more “energy” to the presidential office and would be empowered to act with greater “(d)ecision, activity, secrecy, and despatch” than if forced to share authority. Significantly, Federalist 70 does not support untrammeled exercises of presidential power. To the contrary, at the essay’s halfway mark, Hamilton declared that the “weightiest” reason for vesting power in a single person—rather than, say, an executive council or Caesarian triumvirate—was to avoid creating an executive power structure that would allow elected leaders to “conceal faults and destroy responsibility.” Putting one man in charge would make it easy to “censure” or “punish” him in the event of national disaster.

So it doesn’t make a lot of sense to deploy Federalist 70 as support for the proposition that the president may do as he pleases. Hamilton’s central argument was that a unitary executive surely couldn’t. Far from staking out sweeping parameters for presidential power, Hamilton articulated a vision of executive legal authority that draws its shape and legitimacy from the maximization of political accountability.

Yet presidential carte blanche is more or less the premise of John Yoo’s Defender in Chief: Donald Trump’s Fight for Presidential Power. Yoo, a law professor at the University of California, Berkeley, cites the importance of Hamiltonian “energy” more than two dozen times to make his case and charges Trump’s critics with undermining the Constitution by trying to sap the presidential office of that energy. (By Yoo’s account, this far-flung group includes career civil servants within the law enforcement and national security bureaucracies; Special Counsel Robert Mueller; Congress generally; House Democrats specifically; and the eleven Republican senators who voted to block Trump’s use of a national emergency declaration to build the border wall.)

There isn’t a lot more to Yoo’s argument than his insistence that executive energy is a good and constitutional thing. This is the hook from which the whole book hangs. The Constitution as originally envisioned by the Founders demands a mostly unhampered executive. Trump has acted as, or has purported to be, an unhampered executive. Trump has successfully defended the Founder’s vision of the Constitution. Q.E.D.

The beauty of this form of argument is that whether Trump has any interest in defending the Constitution is beside the point. (Yoo does not attempt to strain the credulity of his readers on that issue.) In Yoo’s view, a president either does his best to get what he wants, thereby strengthening the office and the whole constitutional blueprint, or is unduly thwarted, thereby weakening both. It’s a startlingly flat caricature of the relationship between the nation’s most powerful office and the person elected to represent it, a doodle in place of the three-dimensional landscape needed to model the harm that undisciplined executive action can do to the presidential office, as well as the vast array of constitutional institutions and interests that exist beyond it.

The book marks a sharp departure from positions Yoo staked out early in the Trump presidency. Less than two weeks after Trump took office, Yoo, best known as the Bush administration lawyer who thought he could use a Medicare benefits statute to legalize waterboarding, drew wryly from his public reputation as the most extreme among executive powers theorists to underscore the seriousness of President Trump’s overreaches. In an op-ed for the New York Times, Yoo declared, “even I have grave concerns about Mr. Trump’s uses of presidential power” and warned that the president was in danger of spending his time in office “haphazardly wasting the executive’s powers.”

A sampling: In 2017, Yoo argued that Trump’s request for “a Muslim ban” would “most likely violate the Constitution’s protection for freedom of religion or its prohibition on the state establishment of religion”; in 2020, Yoo writes, “If the judiciary had the right to examine a president’s motives, judges would know no bounds.” In 2017, Yoo argued that Trump’s his firing of acting attorney general Sally Yates specifically for being weak on borders suggested “a misconception of the president’s authority of removal”; in 2020, he writes, “Article II gives the president the right to remove subordinate executive officers, for any reason or no reason.”

Yoo acknowledges his 180-turn in the book but qualifies it (“I never signed the Never Trumper letters that freely circulated among former Bush national security officials”) and declines to provide an analysis that could explain or accommodate it. The discontinuity is conspicuous in a book that criticizes “liberals” for “prov(ing) inconsistent in their attitude toward presidential powers” depending on who occupies the White House, and combined with Yoo’s frequent forays into invective, results in a work that presents primarily as a bid for political relevance.

Yoo sets out the terms of his project on the first page: “This book will explain why Trump has not become the Constitution’s destroyer, but instead its most unlikely defender. Rather than a sword, the Constitution has become Trump’s shield.”

This doesn’t quite square. Using the Constitution as your shield doesn’t mean you’re defending it; it means that, soundly or not, you’re using it to defend yourself. But what looks like a head-scratcher is, on inspection, an accurate summation of the book’s big theoretical bait-and-switch, a conflation of the interests of the office and the interests of the person occupying it. What purports to be a meditation on the Founders’ original vision of executive authority is a novel account of sweeping personal entitlement.

Yoo imagines for the president a panoply of “rights”: the right to wage war unilaterally, the right to devise and carry-out restrictionist immigration and free trade policies, the right to fire the FBI director, and any other subordinate executive officer, the right to end the Russia investigations (under FBI Director James Comey and later Mueller), the right to compel the obedience of private individuals, and even states, to federal law, the right to direct all executive agency officials on the performance of their duties and, if they refuse, to remove them from office, the sole right to enforce federal law, the right to decide the foreign policy of the United States and who shall carry it out, the right to undo actions by his own branch through use of the pardon power, the right to self-pardon, the right to bar aliens from entering the country, the right to receive ambassadors, and the right to terminate treaties.

What Yoo, a textualist, doesn’t acknowledge is that nowhere does the Constitution grant the president “rights.” It accords him authorities, which are significant—but also, as a matter of constitutional principle and democratic process, constrained and conditional. Analytically speaking, swapping out “authorities” for “rights” might seem like a slip of the pen rather than a deliberate shading of the terms of our constitutional inheritance. But this is a book that attributes “the progressive rights of privacy and dignity” to the “Supreme Court’s misguided adventure into the world of unwritten, non-textual judicially created rights.” Yoo’s consistent insistence on the president’s “rights” reads not as an inadvertence but as a conspicuous inversion of our constitutional language.

Significantly, it’s a trick Trump himself has endorsed. Elsewhere, I have catalogued Trump’s self-declared “absolute rights” and have suggested the recurring move is reflective of “a real-estate mogul who understands power through the prism of private property rather than public obligation.” Since entering office, Trump has claimed an ”absolute right” to divulge classified information, to “do what I want to do with the Justice Department,” to pardon himself, to declare a national emergency, to close the border, to ask foreign countries for help in investigating corruption, and to intervene in the criminal case of his former campaign adviser, Roger Stone. “I have an Article II, where I have the right to do whatever I want as president,” Trump informed a group of teenage conservatives at a Washington, D.C., summit last summer.

Against this bluster, Yoo’s subtler variation of presidential rights talk might barely register. But the upshot is the same. In “a government of the people, by the people, for the people,” the language of presidential “rights” is constitutional grift.

Yoo’s legal analysis does not fare better at the level of brass tacks.

To start, Yoo misstates basic points of law. Consider his description of how a Senate impeachment trial works (and, by implication, why the Democratic House is responsible for any deficiencies in the proceedings against Trump). He claims that “[i]ndividual senators cannot speak, question witnesses or test evidence” or “debate the meaning of ‘high crimes and misdemeanors,” and that “a Senate trial creates no forum for the testing of the witnesses or the evidence.” He concludes, “Because of the Senate’s obsolete rules, the House impeachment process provided the only opportunity for the American people to weigh the factual evidence and the legal arguments against President Trump.

There’s nothing hard and fast about the existing impeachment rules; the Senate may modify or supplement them, as it did at the start of President Bill Clinton’s impeachment trial—and at the start of Trump’s. But Yoo’s description is inaccurate even taking as given the existing rules in the Senate Manual. Under Rule XIX, senators can submit written questions to be read aloud by the Presider. The prohibition on debate in Rule XXIV does not apply if a majority of Senators agrees to debate a proposed order behind closed doors. And far from precluding the testing of witnesses or the evidence, the rules offer a few bare-bones points of process and otherwise leave the Senate to organize this crucial aspect of the proceedings as it sees fit.

Other politically-freighted errors abound. For example, Yoo dismisses the Russia investigation as an FBI “revolt” that was initially “orchestrated” by Comey and “his inner circle,” based on “frivolous” charges. But official sources, including a 2019 report by Justice Department Inspector General Michael Horowitz, have confirmed that the FBI properly opened the investigation based on adequate factual predication. Yoo also writes: “Mueller did Trump a great favor by definitively clearing him.” That claim contradicts Mueller’s own report, which states, for the benefit of those who might misunderstand what prosecutors do: “while this report does not conclude that the president committed a crime, it also does not exonerate him.”

Then there’s the more fundamental problem of Yoo’s premise. Yoo must establish that Trump has been largely successful in getting what he wants to show he has effectively defended and exercised the powers of the office. Yoo doesn’t.

Yoo acknowledges the chasm between what Trump has promised to do and what he has gotten done but casts it, flatteringly, as a difference of principle: “Trump campaigns like a populist but governs like a constitutional conservative.” Compare this to the view offered by Samuel Moyn, a historian at Yale Law School, who has measured that space using the metric that, at least for Yoo’s thesis, more clearly matters: power. In Moyn’s view, given Trump’s demonstrated inability to effectuate his powers, he can only be understood “as the weakest American president in our lifetimes.”

Yoo comes to a different assessment of Trump’s constitutional power record by narrowly defining the executive actions that make the scoreboard. He explains he is referring to Trump’s success in “stopping bad ideas” from Democrats, such as abolishment of the electoral college, and his appointment of two conservative Supreme Court justices. The first point is unintelligible (Trump can hardly be credited with the continuing existence of the electoral college), and the second holds up insofar as the assertion seems to be that Trump did largely what any other Republican president would have done. Yoo also argues, with skillful vagueness, that Trump “stood up” for executive leadership in foreign affairs and war and “fought” Robert Mueller’s special counsel investigation and his impeachment.  But neither argument illustrates Trump’s defense of the executive power, under his administration or for purposes of the next.

Yoo’s foreign affairs analysis is his best bet at making the case, but it consists almost entirely of a recitation of all the ways Trump has moved to unilaterally “undo the entanglements of his predecessors”—for example, by withdrawing the country from the Iran nuclear deal, the Paris climate accord, and the Intermediate-Range Nuclear Forces Treaty. Yoo is right that these examples and unmentioned others are a stunning testament to the president’s ability to transform the United States’ relationship to the world. They offer some proof of Trump’s affirmative defense of his powers, but all told, better attest to the culmination of decades of congressional acquiescence to growing presidential control over international law and international relations. As for Yoo’s most compelling example of how Trump has expanded  executive power—his air strikes on Syria in 2017 and 2018 in response to the Syrian Arab Army’s use of chemical weapons against civilians—this is also the least persuasive example of constitutional action, as it rests on an interpretation of the Constitution that renders Congress’s exclusive power to declare war meaningless and the president’s power to initiate armed hostilities virtually unlimited.

Lastly, Yoo does none of the factual or legal legwork necessary to support his characterization of the Russia investigation and Ukraine impeachment as examples of executive efficacy or long-term power gains. The best arguments to the contrary have been made, in real time, by Jack Goldsmith, a professor at Harvard Law School, who within days of Trump’s inauguration noted the infirmities of an administration overtaken by chaos and internal rebellion. In October 2017, Goldsmith built on his early observations with an analysis of the precedented leaks coming from career civil servants seeking to undermine what they perceived as the president’s damaging conduct. Goldsmith recognized the leaks as “an immune response to Trump’s attacks on the intelligence community.” But he noted that some of them—in particular, leaks coming from intelligence officials involved in the surveillance of Russian officials—also violated “taboos that had been respected even in the wild west of unlawful government disclosures” and could result in a new normal that exacts costs not only on Trump but on future administrations.

Two years later, Trump’s impeachment provided additional examples of the same immune response in action. Notwithstanding the administration’s sweeping public claims of executive privilege, in the space of weeks, a parade of not just former but current administration officials and political appointees appeared on the Hill to testify on facts detrimental to the president’s position on Ukraine. “The [White House] is asserting no legal authorities, and does not appear even to be trying to manage what executive officials can and cannot say,” Goldsmith observed. The failure attested to a “really remarkable breakdown of soft and hard presidential power.”

This type of close consideration of the mechanics of the executive branch—how it works and the powers it exercises in fact—is simply missing from Yoo’s analysis, which instead weaves error and vagueness in service of an unctuous conclusion: “In securing the benefits of an energentic executive for his successors, Trump may have done the nation his greatest service.”

The particular relevance of Yoo’s ideas for the Trump administration’s policies came into focus about a month before the book’s July release, when reports emerged that Yoo was advising the White House in formulating its last pre-election foreign and domestic policy plays in connection with the Supreme Court’s recent decision in Department of Homeland Security v. Regents of the University of California. That decision rejected the procedural adequacy of Trump’s attempt to rescind the Deferred Action for Childhood Arrivals program. Yoo’s view, floated in articles published in Newsweek and the National Review in June, is that by requiring the executive branch to undergo “laborious” processes to reverse what Yoo sees as an illegal program established by “executive fiat,” the Court has expanded, rather than curbed, the president’s powers. As Yoo put it, in an apparent elaboration of objections set out in Justice Clarence Thomas’s dissent, “presidents can now stop enforcing laws they dislike, hand out permits or benefits that run contrary to acts of Congress and prevent their successors from repealing their policies for several years.”

Yoo reportedly met virtually with Trump sometime in July to discuss the theory. On July 10, Trump offered what sounded like a clear endorsement of Yoo’s ideas when he promised he would soon be signing “a very major immigration bill as an executive order” based on powers accorded to him by the DACA decision. In a recorded interview with Chris Wallace that aired on Fox News Sunday on July 19, Trump again indicated he would be pushing through a health-care plan, an immigration plan and “various other plans” without congressional sign-off. Trump explained, “The Supreme Court gave the president of the United States powers that nobody thought the president had, by approving, by doing what they did—their decision on DACA.”

Yoo’s DACA theory is a riff on a major idea in his book and other writings. He argues that presidents have “the power of reversal”—also described as the “right of reversal”—which permits him to not just undo but immediately undo the actions of past presidents without a helping hand from Congress. In Yoo’s view, to the extent Trump sees the Obama-era program as an unconstitutional violation of the president’s obligation to “take Care that the Laws be faithfully Executed,” he has the right to order the program’s almost-instant dissolution, notwithstanding the consequences for hundreds of thousands of program recipients who have relied on the program’s promises.

An onslaught of litigation would be sure to commence if Trump were to issue a slew of executive orders reshaping the healthcare and immigration landscape. But putting aside whether Yoo’s interpretation of the DACA ruling could be operationalized, Yoo’s recent talks with the White House on the subject are notable given he sees his own interpretation of the DACA ruling as bad news for the Constitution.

The irony could not be greater. Yoo’s advice on the Supreme Court’s DACA opinion is useful to Trump not for what Yoo has to say about the law of executive power but because of what he claims about the impotence of the law. Yoo laments that the opinion “makes it easy for presidents to violate the law” by creating a pathway for presidents to issue unconstitutional executive orders that cut Congress out of the lawmaking process. For his interpretation of Regents to form the basis for a suite of impending executive orders would thus signal, from Yoo’s own perspective, the collapse of his professed project: to establish “Donald Trump as a defender of the Constitution.”

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Jane Chong

Jane Chong is a lawyer based in D.C. and former deputy managing editor of Lawfare.