Executive Power

John Yoo: The Man Who Would Make the President King

The Trump presidency has been a stress test for maximalist theories of presidential power.

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Defender in Chief: Donald Trump's Fight for Presidential Power, by John Yoo, All Points Books, 299 pages, $29.99

John Yoo and Donald J. Trump seemed like a perfect match from the jump. Yoo is the legal scholar who believes the president can order a recalcitrant prisoner's fingernails pulled out and his child's testicles crushed if that's what it takes; Trump is the politician brash enough to insist that "torture works" and "you have to take out [terrorists'] families." For a no-limits executive-power enthusiast such as Yoo, what's not to like about Trump? And surely Trump could use a little scholarly heft for his authoritarian impulses.

Yet a funny thing happened during Trump's rise to power: Yoo seemed to go wobbly over the prospect. The GOP nominee "reminds me a lot of early Mussolini," Yoo told The Washington Post in October 2016—in a bad way, that is. Just two weeks after Trump's inauguration, Yoo took to The New York Times to sound the alarm about "Executive Power Run Amok." Later that year, Yoo all but called for Trump's impeachment.

But we always knew, however tortuous the path, that Yoo would eventually find his way home. In the opening pages of Defender in Chief: Donald Trump's Fight for Presidential Power, Yoo declares, Penthouse Forum–style, that he never thought this sort of thing would happen to him. "If friends had told me on January 21, 2017, that I would write a book on Donald Trump as a defender of the Constitution, I would have questioned their sanity, he wrote." He found Trump's personal behavior repellent and "saw him as a populist, even a demagogue, who had not prepared for the heavy responsibilities of the presidency." But then our 45th president turned out to be a "stout defender of our original governing document" and the Framers' glorious vision of "an independent, vigorous executive."

Defender-in-Chief has already earned Yoo the coveted tweet-blurb from @realDonaldTrump, so it's unlikely anything I write here will put much of a dent in its sales. But ye gods, this is a terrible book: a lazy, turgid, error-ridden mess, perched atop an appallingly silly thesis.

Yoo forgets history he learned in high school, announcing that the Mexican-American War kicked off with an "attack on Sam Houston's forces along the Rio Grande." (Zachary Taylor's, actually; Houston was a U.S. senator at the time.) He forgets history he actually lived through, declaring that President Barack Obama "launched attacks on Syria for its use of chemical weapons." (Er, he didn't.) Through large stretches of the book, Yoo even forgets what he's just written, as when he deploys the same damned passage from the Federalist three times in seven pages. You get the sense that with this book, unlike the Torture Memos, his heart really wasn't in it.

As for that thesis: What makes a president a defender-in-chief, anyway? The answer is in the book's subtitle: It's the "fight for presidential power." You earn your laurels by defending the office's prerogatives—genuine or imagined—thereby keeping the flame of "energy in the executive" alive for future presidents. Trump amply deserves the honorific, Yoo argues, because he fought back against the special counsel investigation, defended his travel ban in court, dropped bombs without congressional authorization—or, as Yoo frames it, "stood up for traditional executive leadership in foreign affairs and war"—and made some judicial appointments Yoo likes.

It's really that easy: On Yoo's scorecard, even Ukrainegate earns Trump points for defender-in-chiefing. Sure, the author concedes, the president "might [!] have had ulterior political motives in mind" when he used military aid as leverage for ginning up an investigation into the Bidens. But even if what was really afoot was a Nixonian attempt to screw a political enemy, Trump was also "protecting the right of future presidents to develop and carry out an effective foreign policy." 

Just by beating the rap on impeachment, Trump became a Yoovian constitutional paladin, fending off an assault that "would undo the original Constitution's greatest innovation: an independent executive." Twenty years ago, Bill Clinton got snorts and eye-rolls for his post-acquittal boast that he'd just "saved the Constitution of the United States." But by Yoo's logic, where's the lie?

In fact, it's difficult to think of a modern president who wasn't a defender-in-chief by the standards Yoo sets out. They all fight for their agenda items in court, none have been ready to roll over for special counsels or impeachment inquests, they all strive to put their mark on the judiciary, and, alas, when they're in a mood to hurl Tomahawk missiles, very few can be bothered to ask Congress first. That's just how the modern presidency operates. In the words of the political scientist William Howell, "the need to acquire, protect, and expand power is built into the office of the presidency itself, and it quickly takes hold of whoever temporarily bears the title of chief executive."

Yoo has set the bar low enough to make all the presidents above average, but he seems oblivious to that fact. In consecutive paragraphs, he'll swerve from calling Clinton and Obama hypocrites for waging war without congressional approval to lauding Trump for his drive-by bombings of Syria.

And inconsistent application is the least of the problems with Defender in Chief's thesis. By Yoo's lights, "energy in the executive" is practically the whole of the Constitution and a good in itself, no matter what it's used for. The author is at pains to stress his disagreement with Trump's hostility toward immigration and with Trump's (largely rhetorical) desire to reduce overseas entanglements. But by pushing to do what he wants, Trump preserves the prerogative of future presidents to do what they will, and that alone a staunch Defender makes. It's a perverse metric for measuring constitutional fidelity.

The Trump presidency has been a stress test for maximalist theories of presidential power. Even the narrower versions of unitary executive theory, which hold that the president has an indefeasible right to direct and remove executive branch officers, present vast opportunities for mischief. With those powers, a crooked president can cover up corruption by barking "You're fired!" to inspectors general who might expose it, or direct federal prosecutors to protect his cronies and screw his enemies. Trump's efforts in this direction so far have been unsubtle, to say the least, but they reveal how much rests on a bed of unenforceable "norms." Alexander Hamilton's argument for "energy in the executive" in Federalist 70 took as a given that we'd have a president vulnerable to "the restraints of public opinion," not one for whom, as has been said of Trump, "shamelessness is a superpower."

Yoo's hardly blind to Trump's character flaws. He admits his hero Hamilton erred badly in predicting that the office would be filled by "characters preeminent for ability and virtue." Instead, the 20th century drift toward "quasi-plebiscitary" selection favors the sort of figures Hamilton feared: men with "talents for low intrigue and the little arts of popularity"—a description, Yoo concedes, that "could not have anticipated Donald Trump's public life in more accurate terms." But if we're increasingly likely to get people we can't trust, might it have been unwise to concentrate so much power in the presidency in the first place? 

Hamilton also argued that energy in the executive would provide "steady administration of the laws." This is, perhaps, another area where the $10 Founding Father could've been a lot smarter. The last three presidents have assumed an extraordinary amount of unilateral power to make the laws, as with Trump's recent decision to conjure up $400 a week in supplemental employment benefits with the stroke of a pen.

Under Yoo's tutelage, Trump appears poised to take pen-and-phone governance still further. The president is "privately considering a controversial strategy to act without legal authority to enact new federal policies," Axios reported in July, in a scheme "heavily influenced by John Yoo, the lawyer who wrote the Bush administration's justification for waterboarding after 9/11."

The gambit centers on the Supreme Court's recent decision, in DHS v. Regents of the University of California, blocking Trump's reversal of Obama's Deferred Action for Childhood Arrivals (DACA) program, itself an arguably illegal use of executive power. The ruling, Yoo lamented in National Review, "makes it easy for presidents to violate the law"—and hard for their successors to undo those violations. In a matter of days, though, Yoo decided Regents was really a blueprint for action and began urging Trump to "weaponize the DACA decision" to enact his own agenda.

One problem with forging new weapons is that you can't keep them out of the hands of future presidents, some of whom are sure to combine Trump's shamelessness with actual competence.

Oh, well: The upside is that Yoo's new theory of executive empowerment scored him an audience with the president. After his Oval Office visit in July, Yoo reported that Trump is "really on top of things," and, despite what you hear, not all "Nixonian in the bunker and paranoid and dark." So we've got that going for us.

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  1. I’m tempted to link the Christopher Hitches interview from the 1990s where he noted that the United States already had an “imperial presidency”.

    1. I would say that for all the “imperial presidency” that we had in 1990s, it accelerated rather quickly under Bush, then even more under Obama. Unfortunately Trump hasn’t remedied the situation. He might have made it worse.

      1. Sep 23rd: “Get rid of the ballots and you’ll have a very peaceful — there won’t be a transfer, frankly. There will be a continuation,” Trump said. “The ballots are out of control. You know it, and you know who knows it better than anyone else? The Democrats know it better than anyone else.”

        July 19th: Fox News Sunday host Chris Wallace pressed Trump to “give a direct answer” on whether he would accept the Nov. 3 election results or not.

        “I have to see. Look, you — I have to see. No, I’m not going to just say ‘yes.’ I’m not going to say no and I didn’t last time either,” Trump said.

        And the playbook: https://www.forbes.com/sites/tommybeer/2020/09/23/report-trump-campaign-actively-discussing-radical-measures-to-bypass-election-results/#11d5112b4800

        “Trump campaign is discussing potential strategies to circumvent the results of the 2020 election, should Joe Biden defeat Donald Trump, by first alleging the existence of rampant fraud and then asking legislators in battleground states where the Republicans have a legislative majority to bypass the state’s popular vote and instead to choose electors loyal to the GOP and the sitting president.”

        This president is actively steering us into civil war, and the GOP (which is not a political party, but merely a conspiracy by a cult of personality to hold power, since they have no plank) is gearing up to deny voters their right.

        This is it. This is how a republic dies.

        And for shits and giggles, here is the GOP “platform”. It is a literal declaration of a cult of personality. That they have no beliefs or principles beyond “support the president”. Principals over principles, in explicit text. How are you cultists not embarrassed?

        WHEREAS, The RNC enthusiastically supports President Trump and continues to reject the policy positions of the Obama-Biden Administration, as well as those espoused by the Democratic National Committee today; therefore, be it
        RESOLVED, That the Republican Party has and will continue to enthusiastically support the President’s America-first agenda;
        RESOLVED, That the 2020 Republican National Convention will adjourn without adopting a new platform until the 2024 Republican National Convention;

        1. RESOLVED, That the 2020 Republican National Convention will adjourn without adopting a new platform until the 2024 Republican National Convention

          Translation: the existing platform from 2016 remains in effect. As is explicitly stated in the fucking resolution:

          RESOLVED, That any motion to amend the 2016 Platform or to adopt a new platform, including
          any motion to suspend the procedures that will allow doing so, will be ruled out of order.

          Reading is hard, yo. Especially if you’re a dishonest shill.

          1. So you are not embarrassed because you choose to remain safely ensconced in a warm blanket of bullshit.

            Was this part of the 2016 platform? “RESOLVED, That the Republican Party has and will continue to enthusiastically support the President’s America-first agenda;”

            No, it was not. So they are already lying. They are changing the platform. They are changing it to, “That the Republican Party has and will continue to enthusiastically support the President’s America-first agenda;”

            Aka, a cult of personality. They are declaring that they support a certain Principal, but not any certain Principles.

            1. “Trump campaign is discussing potential strategies to circumvent the results of the 2020 election, should Joe Biden defeat Donald Trump, by first alleging the existence of rampant fraud and then asking legislators in battleground states where the Republicans have a legislative majority to bypass the state’s popular vote and instead to choose electors loyal to the GOP and the sitting president.”

              Are you just pissed he stole Podesta’s idea?

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              2. I’m pissed that there is a fascist coup in progress, and so called libertarians are cheering it on.

            2. DOL, we all know you’re preparing the way for Coup v.2.0.

              Just like Suderman and the other fifty-centers you’re laying the groundwork for the DNC and its media arm to try and invalidate the election results and remove Trump by non-Constitutional means. All while framing it as “saving the nation”.

              1. Yeah it’s not the guy who repeatedly accuses everyone else of fraud, even when his own electoral fraud commission found none, LOL. It’s not the guy who refuses to say that he will respect and accept the results of the election. It’s not the guy who’s party has refused to allow any election security bill be brought to a vote. It’s not the guy who has said “The only was we lose this thing is if it is RIGGED.”

                It’s right in front of your noses. Try to imagine Obama had insisted that if he lost his re election that the only possible explanation was that the election was rigged. This is terrible, damaging rhetoric from any president, and should not be tolerated.

  2. So a conservative pundit with a long history of advocating more war/government power/unilateral executive action/federal supremacy/etc…just can’t stand Trump. Surely this is just more proof that Trump is a bloodthristy, powerhungry dictator in the making.

    Am I the only one seeing a pattern?

    1. Um… not seeing how he can’t stand Trump seeing the article is about a book John Yoo just wrote in defense of Trump. This is not to say Trump should be linked to John Yoo and his evil, terrible opinions. The guy is a low life swamp dweller probably looking to get a job and the best way to get that is flatter Trump.

      1. Oops. That’ll teach me to read Reason articles.

      2. All Trump has done in this area is reprogram some money to build a wall on the border, put a few tariffs on China and undo Obama’s DACA abuse.

        He hasn’t started any illegal wars. He hasn’t ordered the assassination of any American citizens, he hasn’t misused the FBI or IRS to go after his enemies. Only someone employed by reason could be so stupid to think that Trump has “maximized Presidential power” whatever the fuck that means.

        1. Seems like you are skipping a few things Trump has done: most recently, imposing a nation-wide ban on evictions.

          1. Don’t forget bump stock ban. I’d like to hear John’s ideas on that one.

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            2. I had missed that one.

            3. Fuck you, Leo. Trump is ALWAYS right no matter what he does! If he supports gun rights he’s right. If he supports gun control he’s right. What is good and wholesome is what Trump says it is, so shut the fuck up you commie pinko asshole!

        2. “he hasn’t misused the FBI or IRS to go after his political enemies”
          He tried to make aid to Ukraine contingent on them investigating his political opponents son. He fired the FBI director because he wouldn’t stop an investigation into his former national security advisor.
          Someone in the IRS may have over scrutinized conservative non profits during the obama administration.
          The mental gymnastics you people do is incredible.

  3. You get the sense that with this book, unlike the Torture Memos, his heart really wasn’t in it.

    But the paycheck was, I assume, fat.

  4. Not different than Obama on that. Orange Man Bad hype makes pundits look like complete tools.

    1. Complaining that Trump was criticized in the comments on a blog post that acknowledges Obama’s role in expanding runaway Presidential power makes one look like a pro-Trump tool.

    2. I remember back when the right thought saw being no different from King Barry was a bad thing and not an excuse for executive overreach.

  5. My opinion of lawyers is very low, doubly so for those who were too incompetent to earn a living in the private sector. John Yoo is a perfect example.

  6. So Obama abusing executive authority to implement DACA and the insane ruling defending that abuse from Trump’s correcting executive order may have bad consequences in the long term.

    You were warned.

    1. You’re correct. As much as I’m for DACA, implementing it through executive action was always dubious for this very reason.

      Is SCOTUS going to take the same approach when President Jorgensen repeals Trump’s tariff by EO approach? (I kid…)

      1. Yes, the argument about whether DACA is good policy is different than the argument that it should be implemented and defended by any means necessary, and damn the consequences to Constitutional norms. Unfortunately, the staff here tended to cheerlead the latter as well as the former. Now the piper is to be paid.

      2. To say Obama could implement DACA without any regard to the law but Trump must follow the APA to the letter to undo it, is a complete fuck you to the entire Democratic process. The rules only apply when the President is doing something the court doesn’t like.

        And a future President could undo those tariffs in a heartbeat. They are the result of the President deciding they are necessary for National Security. The next president could and should be able to decide differently.

        It is telling you think that is some kind of big deal or something anyone who understands those tariffs would not expect. Just because you don’t like something doesn’t mean it is an abuse of power or some special case.

        1. Section 8: Powers of Congress
          The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises…
          To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;…”

          Yeah it’s crazy to think the President shouldn’t have these powers.

          And I’m not even saying that Congress hasn’t delegated him the powers, but that’s part of the point of “imperial presidency” isn’t it. Whether delegated or simply taken, the President has gained too much power in the last 20 years (at least). Full Stop.

          1. Congress laid those taxes. They just gave the President the authority to impose them when he choose.

            Regardless, it has nothing to do with this issue. Your bitch is about Congress giving the President discretion. That is not the same thing as the President just unilaterally doing something Congress never gave him the power to do.

            Basically you are just butt hurt about tariffs. Well, tough shit. I am sorry you can’t buy your cheap shit made by slave labor. I am sure the guys who missed out on the Zyclon B contracts back in the 30s felt the same ways. That doesn’t mean it is relevant to every discussion.

            1. You could criticize the bad policy even if Republicans are the ones who passed it. You could do that.

        2. I should add that the President has almost unlimited powers, it seems, in the case of something being vital for “National Security.” So Trump imposes tariffs on simple consumer goods in the interest of “National Security” and the conservatives cheer. Nobody even bothered to challenge him on the relationship between tariffs on toys made in China and “National Security.”

          So what happens when the next Democrat declares CO2 a “National Security” issue? What happens when guns are viewed as a “National Security” issue? They are at least as tangentially related in the Democrats minds as Chinese made toys. Will you excuse the imperial presidency when it’s a policy you don’t like?

          1. The President doesn’t have unlimited powers. And if the next President wants to put tariffs on China in the name of CO2 emissions, we can deal with that then.

            Congress passed the law that gave the President the power to implement tariffs to secure industries vital to national security. How that involves CO2 is a mystery. But God damn it you want the benefits of state sponsored slavery and every issue must be co-opted to advance that.

            1. Not addressing carbon emissions will mean the end of the human species. I know you don’t believe that because you get all of your thoughts from trash rightwing sources, but it is. And the more Republicans, alone among all the political parties of the earth, propagate lies about the subject, the longer they deserve to spend in prison and their every inch of political infrastructure burned to ashes.

  7. John Yoo?

    Is there a limitations period for torture and war crimes prosecutions?

    Asking for the better elements of American society, thinking about January 2021.

    1. Does your unemployment ever run out? Will your parents ever kick you out of the basement and tell you to get a fucking job?

      I know you are unemployable and an all purpose bum anyway. But just wondering if you are ever going to at least try to get a job or something.

      1. I think Kirkland is retired and just trolls for fun living off his pension.

  8. Isn’t John Yoo the asshole who is rumored to have come up with “PATRIOT” as the acronym for the act that implemented domestic spying?

    1. Did he start the trend of catchy acronym acts? If so, he deserves to be shot, tarred, feathered, shot again, drawn, quartered, and shredded.

      1. I don’t think he started that, but if he did, I agree.

    2. You can tell how stupid they took Americans for with that crap. And they were right!

  9. This seems…. unhinged from any external reality.

    You sound like a couple of theologians arguing about how many angels can dance on the head of a pin. “But Aquinus clearly stated that…”

    What a load of manure.

    Trump is certainly not the most “limited government” president of all time. And he certainly has not made shrinking the power of the executive his top priority.

    But pretending that he’s in any way even near the top of “expanding executive power” is just insane, particularly after what the last president got up to.

  10. Remembering of course that reason is funded by a certain foundation and its sole billionaire, who has expressed a complete desire to remove Trump from office, I am not surprised by this piece of trash writing. But it works for the daily beast or newsweek.

  11. Has John Yoo ever met his counterpart in the Obama administration that wrote the memo saying that the President has the authority to order the killing of U.S. Citizen civilians without any need for a crinimal indictment or any kind of judicial action whatsoever?

    Imagine if those two decided to collaborate.

  12. The niggers are out burning down half the US again. And reason is writing about some chink kike’s fucking book? Nobody has the balls to say how bad the nigger liars are. Fuck them. I say this as a black man.

    1. dude this isn’t xm45

    2. You’re the first black Klansman I’ve encountered outside of a Mel Brooks movie.

    3. Yeah I hate niggers too, including you, nigger.

  13. The man who signed John Yoo’s torture memos is 9th circuit court of appeals judge Jay Bybee. Hypocritical Mormon son of a bitch who belongs on trial for war crimes in the Hague. His son went into the Las Vegas temple and shot himself, so he’s burning in hell. Jay will be joining him whenever he dies. It’s hilarious when Mormon kids kill themselves. Former Oregon(so ashamed of my state for electing that bastard twice) Senator Gordon Smith’s son killed himself and is now burning in hell. They both supported the war in Iraq and violations of our civil liberties. It’s not worth my life or freedom, but if someone killed either one they’d be a hero. Send them both to hell to join their dead sons. Send all the mormons to the gas chambers!

    1. Like literally all? Even Marie Osmond?

      1. Especially the Osmonds! Celebrities who normalize Mormons need to go too. This was years ago but I knew where her house in Provo was. It was on a bluff overlooking mount timpanogas and Provo Canyon.

  14. And what was the Obama presidency? 8 years of executive restraint?

    1. Addressed in the article we are commenting on.

      1. doesn’t matter. obama was always wrong. Trump is always right, no matter what. get it now, commie?!

  15. “If friends had told me on January 21, 2017, that I would write a book on Donald Trump as a defender of the Constitution, I would have questioned their sanity, he wrote.”

    So close. Just aim a little to the… backward.

  16. Why are we supposed to take anything Yoo says seriously? He advocated torture. It’s always funny to turn on Fox News and see some of their political commentators because they’re absolutely despised by normal people. John Yoo is one obviously. Oliver North hosted a show. I know many Cons consider him a hero, but he’s still Oliver North. My favorite is when they’d have Mark Furman on. He’s famous for one thing(I guess he went on to write true crime books) and I don’t understand how anyone would think having his opinion would be welcome? Like unless they were discussing Michael Richards or someone like that what insight could Mark Furman possibly have that someone with way less baggage could have?

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