John Yoo Warns That Impeachment Would Undermine Presidential Power. That's the Point.

While there may be sound political reasons to let voters decide Trump's fate, there are sound constitutional reasons to clarify the limits of his authority.


Berkeley law professor John Yoo warns that impeaching Donald Trump over his alleged solicitation of re-election assistance from Ukrainian President Volodymyr Zelenskiy could undermine presidential powers to conduct foreign policy and protect national security. Given Yoo's expansive understanding of those powers, that prospect may count as an argument in favor of impeachment.

"The Constitution vests the president with the authority to conduct foreign policy and the responsibility to protect the nation's security," Yoo writes in a New York Times op-ed piece. "A president, even one who is possibly engaging in wrongdoing, must have confidence in the confidentiality of his communications or he will be unable to perform his constitutional duties and our international relations will fall victim to government by committee."

Yoo worries that "if Congress could regulate presidential discussions with foreign leaders, presidents and foreign leaders would speak less candidly or stop making the calls altogether." If that happened, he says, "United States foreign policy—approved by the American people at each election—would be crippled."

But is Congress trying to "regulate presidential discussions with foreign leaders," or is it investigating a possible abuse of presidential power, including an illegal usurpation of the legislative branch's spending authority? If Trump put a hold on congressionally approved military aid with the intent of pressuring the Ukrainian government to dig up politically useful dirt on former Vice President Joe Biden, George Mason law professor Ilya Somin notes, he violated the separation of powers.

It would not be the first time. Yoo himself has criticized Trump for overstepping his constitutional authority by trying to build a border wall that Congress has refused to fund, by suggesting he might pay for the wall by imposing tariffs on Mexico, and by threatening to unilaterally withdraw from the North American Free Trade Agreement.

"The framers believed that 'high crimes and misdemeanors' included a president who used his foreign affairs powers for personal or political gain," Yoo concedes. To investigate whether Trump has done that, he says, "A special congressional committee could review classified information in secret and bring United States and foreign officials to testify under oath. The House could meet any stonewalling by cutting intelligence, military and diplomatic funding."

And then what? If Congress confirms that Trump has in fact "used his foreign affairs powers for personal or political gain," that would be an impeachable offense, according to Yoo. Yet he resists the logical conclusion that an impeachable offense should result in impeachment.

"The founders believed that impeachment should come only as a last resort," Yoo says. But the quote he uses to back up that claim suggests nothing of the sort: "At the end of four years, the president may be turned out of his office, Gov. Edmund Randolph said in 1788 as Virginia weighed ratifying the Constitution. 'If he misbehaves he may be impeached, and in this case he will never be re-elected.'" That hardly means Congress has to wait for the next election instead of trying to remove a president who has committed an impeachable offense.

"Democratic presidential candidates are calling for impeachment," Yoo writes. "But they should realize that they themselves remain the framers' primary remedy for presidential abuses of power. The Constitution trusts the American people, acting through the ballot box, to render judgment on President Trump. Democrats should trust the framers' faith in the American people, too."

While there may be sound political reasons to choose the course that Yoo recommends, there are also sound constitutional reasons not to simply let voters decide Trump's fate. Even if an impeachment vote does not result in conviction by the Republican-controlled Senate (as seems pretty certain at this point), it would make a statement about limits on presidential power that even Yoo acknowledges. If the discovery of impeachable offenses is not a good reason to impeach a president, what is the point of the impeachment power?

NEXT: Whistleblower Report Alleges Trump Used Presidential Power for Personal Gain

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  1. Or it may demonstrate that the Democrats do not care about what they impeach Trump over and are not interested in limiting presidential power, just that they have something plausible to pull the trigger on so they can be revenge on the man who should not have won the 2016 election

    1. Really describe the situation one time:

      Joe Biden committed treason, so, let’s impeach the trumpster for helping catch him. Yup. That’s literally what’s going on here.

  2. Oh, horseshit. Impeachment is not going to limit the power of the Imperial Presidency, it’s only going to limit the power of Republican presidents.

    1. It would likely expand Presidential power. If every Republican knows the Democrats are going to try and impeach him and throw him out of office no matter what he does, what reason is there to play by the rules? None.

      1. What rules are those? Yell at each other in front of a camera and then go have dinner and play golf together?

        1. There are some rules at least for Republicans. Namely misusing law enforcement or the IC. That is what got Nixon run out of office.

          1. Trump was just caught red handed by some of his own officials instructing his AG to investigate Biden and leveraging $400 million to induce the Ukrainians to investigate Biden and you have the nerve to accuse Democrats of misusing law enforcement.

            1. Biden withheld aid to get the Ukrainian governmen to fire the prosecutor who was investigating the company that employed his son in a do nothing job as a board member. Trump said that looked bad and that the Ukrainians should look into it.

              Yet, you think Trump is the corrupt one here. Worse still, you think anyone is going to be brain dead enough to agree with you.

              Yeah, that ought to work out well. Fucking retard.

              1. You’re just wrong. That prosecutor was a crook. And that crook wasn’t investigating that company when he was fired.

                1. Is the younger Biden afraid that the new Ukrainian government is also so unjust that we need to give it $400 million to avoid an investigation?

                  Do your want a head of state who is too dumb to warn his son to not work in a country that is so unjust?

                  Who gives so much money to a country if they feel that way about it?

                2. “”That prosecutor was a crook.””

                  Is that evidence of corruption?

            2. “Trump was just caught red handed by some of his own officials instructing his AG to investigate Biden”

              Did you miss the part where Trump was President, his AG worked for him, and Biden wasn’t above the law just because he was a candidate for the Democrats’ presidential nomination?

              1. There is nothing to investigate. The prosecutor was a crook. Multiple other countries believed he was a crook and wanted him gone. The prosecutor wasn’t even investigating the company Biden’s son worked when he was fired for corruption. Apparently it wasn’t so much who that prosecutor was investigating it was the fact that he wasn’t investigating corruption. It’s Kafka level shit to twist this the way you have. Trump called that crook of a prosecutor a “good man” something like that. Where is Trump getting this belief that the crook prosecutor was a good guy. We are in the Twilight Zone right now. It’s up people like you to save us. I hope you can figure it.

                1. Your repetition of talking points just doesn’t do it for anyone, pod.
                  Maybe you can let your higher ups at the DNC know they’ll need to come up with something better

          2. Nixon got the boot because he took on the work of law enforcement for himself and his toadies. Some classified documents were leaked to the press by Daniel Ellsberg. Rather than letting the FBI and CIA etc deal with the matter, Nixon got personally involved, even ordering toadies to break into Ellsberg’s psychiatrist’s office to dig up any damaging dirt on Ellsberg. This sort of behaviour culminated in the Watergate scandal and Nixon’s resignation. Nixon unsuccessfully attempted to use law enforcement to block an investigation into his own wrong doing. This attempt was immortalized in what came to be known as ‘the smoking gun’ tape.

          3. Namely misusing law enforcement or the IC. That is what got Nixon run out of office.

            That reminds me: Why is the Mercer County Sheriff’s Department still a thing after what happened to Weedman and the Dems winning the Governor’s Mansion?

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  3. It would not undermine Presidential power. It would destroy people’s faith and respect for elections and institutions and set the precedent that any President can and will be impeached if his opponents take control of Congress.

    That wouldn’t undermine Presidential Power. It would undermine the rule of law and the institutions of government and turn the US into a banana republic, assuming we are not already there.

    Sullumn is apparently so stupid he thinks that this can only happen to a Republican.

    1. I think he laughably thinks that this standard will be equally applied to both parties. In theory if his assumptions were correct it would be fine to impeach, we know that that’s not how the world works though.

    2. It wouldn’t really wouldn’t turn us into a banana republic. It would be following the constitution. For example being a drunk isn’t against the law but it can get you impeached. It is the political process for removing an official from office by our representatives. Thats all.

      And I also think he shouldn’t be impeached from what I’ve see. At least for what everyone is hollering about.

      1. No it wouldn’t. In order for the Constitution to function, the people in government have to take it seriously and try to follow it. Impeachment is for “high crimes and misdemeanors”. Just because it leaves it to Congress to decide what that means, doesn’t mean Congress can consistent with its duties impeach Presidents with no regard to the meaning and gravity of the terms. Yes, as a legal matter they can get away with it. But that just means that Congress can ignore the Constitution if it wants. And it largely can. The price of that is destroying the Republic.

        1. Like taxation by EO (Trump). Like war by EO (Obama). If our Republic is to be destroyed it will be because Congress is too chicken shit to take back their power. I only wish that was what this is about but it ain’t and I won’t clutch pearls over it. Some other douchebag will take power and do as they please.

        2. We can restore the gravity of the term by laughing at people who use the term lightly.

    3. “It would destroy people’s faith and respect for elections and institutions ”

      I lost my faith in 2016 when rigging Democrats added 3 million fraudulent votes to the ballot box, and still managed to lose the election.

      You know I’m a sporting man. I like to make the occasional bet. But I ain’t that sporting. When I fix a fight, say–if I pay a three-to-one favorite to throw a goddamn fight–I figure I got a right to expect that fight to go off at three-to-one. But every time I lay a bet with this sonofabitch Bernie Bernheim, before I know it the odds is even up–or worse, I’m betting the short money. The sheeny knows I like sure things. He’s selling the information I fixed the fight. Out-of-town money comes pourin’ in. The odds go straight to hell. I don’t know who he’s sellin’ it to, maybe the Los Angeles combine, I don’t know. The point is, Bernie ain’t satisfied with the honest dollar he can make off the vig. He ain’t satisfied with the business I do on his book. He’s sellin’ tips on how I bet, and that means part of the payoff that should be ridin’ on my hip is ridin’ on someone else’s. So back we go to these questions–friendship, character, ethics. It’s a wrong situation. It’s gettin’ so a businessman can’t expect no return from a fixed fight. Now if you can’t trust a fix, what can you trust? For a good return you gotta go bettin’ on chance, and then you’re back with anarchy. Right back inna jungle. On account of the breakdown of ethics. That’s why ethics is important. It’s the grease makes us get along, what separates us from the animals, beasts a burden, beasts a prey. Ethics. Whereas Bernie Bernheim is a horse of a different color ethics-wise. As in, he ain’t got any. He’s stealin’ from me plain and simple.

      1. Above is an excerpt from the film Mueller’s Crossing.

  4. While certainly no fan of Trump, I am thinking that impeachment would give the current Dem presidential hopefuls a big boost, since, with the certainty of a media focusing on the impeachment process, it might very well detract from any close scrutiny of the total idiocy of their proposed policies. One could hardly imagine a more effective distraction.

    1. One would say that is the point of all this nonsense. And keep the impeachment going until the election so they can run against an opponent ‘under impeachment’ for the low information votes.

    2. It would backfire on the Dems. The Dems getting a boost won’t matter when they need those that voted for Trump last time to vote for them now. Those people are going to dig in their heels for Trump. Also, Trump really has no issues to run on now. He can claim the impeachment is stopping him from making America great again and since the trade wars aren’t going smoothly he can blame the uncertainty in the markets due to the impeachment.

      1. It certainly backfired on the Republicans in ’98.

        In the House of Representatives, Democrats picked up five seats, marking the first time since the 1934 elections in which the president’s party picked up seats in the House.

        Pelosi was there and probably remembers well, but we’ll see.

  5. Good to know Yoo continues his perfect record of always being wrong. Fuck this torture-loving asshole neocon.

  6. Are we sure the enabling legislation for military aid allows the executive no discretion at how or when the aid is disbursed? I mean, impeachment can only be a legitimate check on presidential power if the president was not legally authorized to have such powers.

    1. Yeah, there’s a whole lot of begging the question here, in that this article assumes as true that there is even an impeachable offense. What’s the offense? No one can seem to settle on even that. Is it the aid issue? Is it the misuse of his office for personal gain? There’s no clear and convincing case for either of them. He didn’t withold the aid. He delayed it, and ultimately released it before the call even happened. I have yet to see a convincing argument that he can’t pause the release of aid. And if that’s the case, why was it not impeachable when Joe Biden, as a proxy for the president, threatened to withold congressionally approved aid unless certain conditions were met?

      And what did he stand to gain personally from it? Biden out of the race? You MIGHT be able to make an argument that he stood to gain vindication for the Russia bullshit if the Ukranians could produce evidence of his accusations against Hillary and the DNC, but even then, I don’t think that would be an impeachable offense, since it would prove some significant criminal wrongdoing and corruption.

      I’ve read both the transcript and the whistleblower complaint, and none of it proves any of that.

      1. Implicit in the entire thing is that there is nothing at all dirty about Biden. If you assume that there is nothing to see with Biden and his crack head son, then it is Trump just sicking foreign governments on his political opponent.

        The problem is there is a lot dirty about Biden. Biden runs around and brags about how he got a prosecutor fired who was investigating his son. Suderman thinks that if the President says anything about that to Ukraine and tells them they should look into it, that is an abuse of power. The position literally seems to be that investigating Democrats while a Republican President is a crime.

        This is by far the most insane thing I have ever seen in politics. This makes the Russia hoax seem like a reasonable and well founded investigation.

  7. >>The Berkeley law professor John Yoo

    The the is odd.

    1. Says the Reason commenter Dillinger.

  8. Still waiting on those redactions Reason. Transcripts are out and you’re dead wrong about the facts.

    1. Can readers of a newspaper sue the newspaper for purposely misleading them? Cause I feel that would be a good way to stop this media bullshit

  9. This article sounds like it was copy/pasted straight from Politico or HuffPost. Keep toeing the Democrat Party line, Jacob.

    1. The First rule of Journolist…

  10. The future will have opposition house member subpoenaing any and all communications to make sure they are all on the up and up. They will demand them without any inklings of impropriety and claim they have oversight authority. We are witnessing the end of liberal democracies because no party will ever except losing an election again (at least we know the Democrats will never accept losing again).

    1. And have a partisan hack in the executive file a whistle blower complain with no evidence or firsthand knowledge. Hey, someone told me that Obama ordered the IRS to audit all of the Republicans in Congress. That alone is enough for impeachment according to Suderman.

  11. No, an impeachment over a scandal that was proven false one day after it launched would prove that there is no way for a non-far left radical to be represented by the current government. Go out and vote, they dare you. It won’t matter, the Democrats will just overturn the results and install someone they prefer in power.

  12. The problem with this whole mess is the optics. The murmurs on the street aren’t “We got him this time!” they are “Oh, this again. What is this, the twelfth time they um, got him?”. America sees yet another fabrication at this point. I mean, we just got over a 3 year Media fabricated russian strawman argument. Do you think anybody believes this is real? I mean really believes. I know tons of people that know it’s nonsense, but are just going along with it because that’s what unethical people do. This not only wreaks of desperation, like all semantics arguments, and mountains made out of molehills, it is desperation. You have people risking their reputations to make groundless claims against Kavanaugh at this point. Hoping he doesn’t sue them. This Delusion Culture being spread by Google and Buzzfeed and the media is just going to get the loser reelected. You aren’t smarter than everyone else. Nobody is falling for it.

  13. When evaluating interactions with Ukraine, it is important to understand what it is like living in or near Russia’s current zone of influence. Consider this exert from today’s news in that region:

    Israel Hayom

    Sadoun said authorities are working to reopen seven local schools, even though the front lines remain close by. Water and electricity supplies are still missing, and Russian troops distribute food and other items to the population.

    “It’s like before the war,” 45-year-old Khalia Umran said after receiving her aid package. “We can eat and sleep quietly. Under rebel control, life was like hell. They killed my brother and abducted my daughter, but the suffering is now over.”

  14. Yes, an investigation and perhaps an impeachment is a good idea, because it will allow Congress to grab back more control over foreign policy. Congress is more stable than the White House in the long run. That is why our constitution gives the Senate so much control over foreign policy.

    1. Not. Sure. If. Serious.

      1. The Senate has ‘control’ over foreign policy pretty much to the same extent that POTUS has legislative authority. Advice and consent effectively being nothing more than a veto authority.

  15. “John Yoo Warns That Impeachment Would Undermine Presidential Power. That’s the Point.”

    Theoretically, isn’t the point whether or not Trump is guilty of high crimes and/or misdemeanors?

  16. I don’t like this new transcript, and I don’t like Yoo’s rationale for opposing impeachment. Yes, the foreign-affairs power is so vast it would just be too risky to investigate possible abuses of that power.

    As if the framers were willing to let their guard down and put up with impeachable behavior just because it’s about foreign affairs. That’s where they saw the dangers of internal subversion most clearly.

    But I don’t think I’m going to support an impeachment of Trump, and here’s the reason:

    I’m expected to believe that Washington Post “fact checker” piece that Biden is pure as the driven snow, the point person for a pure-minded anti-corruption drive (its purity proven by the support of the Europeans). And it’s unfortunate but coincidental that Biden’s son had a well-paying job, with uncertain responsibilities, with a Ukrainian company that was investigated by the fired prosecutor, but that’s a coincidence since the prosecutor had “finished” that particular investigation before he was fired.

    I remember that I was burned before believing the Washington Post – when I actually accepted their story about the Covington high school students harassing the poor Native American. I even patted myself on the back for my willingness to believe news in the MSM which was favorable to liberals.

    I even made a similar mistake with Rolling Stone’s rape-on-a-glass-table story – I thought at first that had actually happened, and what a great opportunity to reach out to feminists and work together for the common cause of fighting sexual assault. Burned again.

    Now the Washington Post and other media want me to kick that football again. I don’t think so.

    1. What does any of that have to do with the case against Trump? Even if WaPo is 100% wrong and Biden is dirty as hell, Trump still did what he did.

      I support impeachment not because of what the Washington Post or any other media outlet says, but because of Trump’s own behavior in this case and others.

      1. So you support impeachment because you are an idiot. Good to know.

      2. It’s a partisan response dressed up as a condemnation of the media.

  17. Can we waterboard Yoo to find out if he’s lying? He doesn’t seem to have a problem with that technique.

  18. John Woo is special kind of special.

  19. Can we just think about the exact case being discussed? Do you think any president should be withholding aid to a foreign country while asking for the ‘favor’ that the foreign country work with his personal lawyer to investigate his political opponent? That is the case that the Demos were handed. If the answer is “no” a president cannot have an impeachment investigation started for behavior like that, what should be the limits of presidential power?
    If it turns out that the aid was not withheld, that fact should come out in the investigation.
    The Demos know there is almost no chance Republicans will impeach Trump. This is not a politically good step for them. However, their constituents will think they are spineless if they don’t take it. Personally, I think presidents should be discouraged from this sort of misuse of office whether their opponents are corrupt or not.

  20. Well, American wouldn’t have problems with presidential powers if we had a dictator.
    Hillary, where are you when we need you?

  21. “John Yoo Warns That Impeachment Would Undermine Presidential Power. That’s the Point.”

    Because Orange Man Bad.

  22. This is the same John Yoo who wrote justifications for use of torture by US citizens and CIA agents. This man cannot surprise me with his atrocious ideas. The only surprising thing is that UC Berkeley hired hm as a professor of law. If I see him coming, I will cross the street. He is a disgrace to his profession and to our nation.

  23. “United States foreign policy—approved by the American people at each election—”

    In other words, whether the American people elected a Donkey or an Elephant, their vote says that the American people are happy with presidential foreign policy. Neat!

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