John Yoo Wishes Trump Abused Executive Authority More Effectively

At the end of a John Yoo critique of Donald Trump’s abuses that a lot of people are mis-reading, he says this:

A successful president need not have a degree in constitutional law. But he should understand the Constitution’s grant of executive power. He should share Hamilton’s vision of an energetic president leading the executive branch in a unified direction, rather than viewing the government as the enemy. He should realize that the Constitution channels the president toward protecting the nation from foreign threats, while cooperating with Congress on matters at home.

Otherwise, our new president will spend his days overreacting to the latest events, dissipating his political capital and haphazardly wasting the executive’s powers.

John Yoo is not stating that, across the board, Trump has overstepped his authority. Indeed, the areas where Yoo suggests Trump has or will overstep his authority — exiting NAFTA and building a wall — are things Trump has not yet put into place. His concern is prospective. The only thing Trump has already done that Yoo believes abused power was firing Sally Yates, and that because of his explanation for firing her.

Even though the constitutional text is silent on the issue, long historical practice and Supreme Court precedent have recognized a presidential power of removal. Mr. Trump was thus on solid footing, because attorneys general have a duty to defend laws and executive orders, so long as they have a plausible legal grounding. But the White House undermined its valid use of the removal power by accusing Ms. Yates of being “weak on borders and very weak on illegal immigration.” Such irrelevant ad hominem accusations suggest a misconception of the president’s authority of removal.

Yoo doesn’t, for example, complain about Trump’s Executive Order on Dodd-Frank, which may have little effect.

But what Yoo is worried about is not abuse, per se, but that Trump will “waste the executive’s powers.”

That’s important given Yoo’s critique of Trump’s Muslim ban.

Immigration has driven Mr. Trump even deeper into the constitutional thickets. Even though his executive order halting immigration from seven Muslim nations makes for bad policy, I believe it falls within the law. But after the order was issued, his adviser Rudolph Giuliani disclosed that Mr. Trump had initially asked for “a Muslim ban,” which would most likely violate the Constitution’s protection for freedom of religion or its prohibition on the state establishment of religion, or both — no mean feat. Had Mr. Trump taken advantage of the resources of the executive branch as a whole, not just a few White House advisers, he would not have rushed out an ill-conceived policy made vulnerable to judicial challenge.

Yoo is saying that Trump could have implemented this policy if only he had gotten better advice about how to hide the fact that it was a Muslim ban, in the same way firing Yates would have been fine had Trump offered another explanation for it.

There’s a big rush among those who’ve abused executive authority in the past to rehabilitate themselves by seeming to criticize Trump. Many of them — including Yoo — are mostly complaining that Trump’s bad execution of abuse of executive power might give it a bad name.

 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

9 replies
  1. earlofhuntingdon says:

    Reading Yoo on the proper restraints on presidential authority seems like reading Anne Burford on effective environmental regulation or Eugene Scalia on enhancing workplace protections for employees.

  2. greengiant says:

    At the end of the day, week or month or year the Trump rulers will find the wall of legal limitations and drive all the way up to it instead of crashing into it.  The legal walls will be the only limit for the next four years,  unless the Neo-cons get their impeach Trump act together.  A lot of people have bought into Bannon’s discipline of destruction.   Endless big lies,  an end to immigration,   mass expulsions,  financialization to destroy private assets by limitless billing for health,  elimination of any fiduciary duty anywhere,  privatization of medicare and social security,  hastened destruction of blue state public finances,  more legalization of government and  business right to poison at will,   .   The right has already read the playbook and none of them are “safe”.   Hitler’s night of the long knives of extrajudicial killings including his “own” SA brown shirts  came 5  months after his being named chancellor.

  3. Rebecca Gordon says:

    Marcy, you got this exactly right, as usual. John Yoo still supports almost unlimited executive power, just wishes Trump would provide the right constitutional gloss on his actions.

    This, I think, is a misreading of Trump’s actual project, which has little to do with maintaining constitutional balance of powers, or indeed any existing democratic and stabilizing governmental structures. My guess is that we’ve already seen the only time Trump’s presidency will show any interest in the constitution — and that was the moment he swore to uphold it while taking the oath of office.

  4. GKJames says:

    Yoo’s always good for a heaping dose of simple-minded obtuseness. No one argues that the president didn’t have the power to remove Yates or to put in place rules on immigration. Yoo’s even right to the extent that, had the president said, as of a date certain and going forward, no person holding a passport issued by Countries X, Y, and Z will be permitted entry into the US, it would be a steep climb to win the he-doesn’t-have-the-legal-authority argument. Alas, the presidential id couldn’t help itself and made it obvious that the ban was based on religion. And it’s no surprise that Yoo’s comment has a whiff of grade-school quality to it; if nothing else, it’s consistent with his equally banal point — done up in form of a wind-up toy — that a president can do anything he wants, anything he wants, anything he wants…. Thank you, John.

  5. martin says:

    John Yoo says:

    quote”Even though his executive order halting immigration from seven Muslim nations makes for bad policy, I believe it falls within the law.”unquote

    Says one who also believes it’s bad policy to torture his cat, but entirely within the law… of Mars.

    • martin says:

      Does anyone care a damn what John Yoo has to say?

      Yes.  Those who strive to prove in a court of law he is a war criminal by virtue of his own actions. Meanwhile, America yawns and orders pizza, Netflix and salvation every Sunday. #sinsofAmerica washed away in the waters of the stupidity.

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