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.


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.