John Yoo defends the presidency, not the Constitution

John Yoo, the lawyer best known for authorizing war crimes during the Bush Administration, has a piece up at National Review purporting to explain that "Trump has become a stouter defender of our original governing document than his critics."

Let's take a look. He starts with some stuff about how Democrats are the real abusers of the Constitution, before mounting his defense of Trump as (possibly accidental) defender of the realm:

But Trump’s defense of the constitutional order has gone beyond simply blocking bad ideas. His battle for the Constitution took three basic forms. First, and most importantly, he fought off Robert Mueller’s special-counsel investigation and impeachment. Both challenged the president’s authority to govern the executive branch and to fulfill his constitutional duty to enforce the law.

This treats the investigation and impeachment of Trump as though they were merely challenges to his authority, instead of legitimate inquiries into corruption to acquire power and abusing that power to keep it. It's a false distinction. Congress challenges the authority of presidents all the time. It is rare that those challenges rise to the level of special counsel investigations or impeachment. Yoo seems to conceds the legitimacy of the inquiries in the very next paragraph.

Trump didn’t win acquittal based on innocence, however, but because the Constitution gave him a built-in advantage.

That's ... not a great defense of the Constitution, is it?

With 53 Republicans holding the Senate majority, the House had to persuade 20 Republicans to vote to convict. They convinced only one, Senator Mitt Romney (R., Utah). The Founders didn’t impose the two-thirds vote requirement in the Senate to protect Trump. They did it to defend the institution of the presidency. The Framers rejected a parliamentary system in which Congress selects a prime minister who both leads the legislative majority and heads the executive branch. Their great experiment with a separation of powers required a presidency independently chosen by the people and vested with its own unique powers and responsibilities.

This is a great spot to note that Trump wasn't chosen by the people. Won the right states to win the Electoral College, but Hillary Clinton won the popular vote. Common use of "the people" would generally suggest that the vote loser is not the person who represents them.

The Framers feared that impeachment and removal by simple majority vote would render the president dependent on Congress, and thus deprive it of the energy, speed, and decisiveness needed for good government. The two-thirds vote requirement ensured that Democrats could not remove Trump due to partisanship, or even policy disputes. The Constitution became Trump’s great shield, and in winning the impeachment battle, Trump repaid the favor by reinforcing the independence of the executive.

Again, this fogs the actual issues. Democrats didn't try to remove Trump because of "policy disputes," but because he used the power of his office to try to solicit foreign interference in the election. The Constitution didn't shield the executive's ability to act with energy in this case -- it shielded corruption. Yoo's argument here depends on conflating legitimate authority with abuse of power.

Second, Trump defended traditional executive primacy in foreign affairs and war. Trump has used his executive control over foreign affairs to achieve what may prove to be his most lasting effect on American policy — shifting America’s strategic focus onto China and away from the Middle East. He has used power given to him by Congress to ratchet up economic sanctions on Beijing, and exercised his constitutional powers to terminate arms-control agreements that restrained the U.S. but not China. 

It's important to note the arms control agreements that Trump terminated were with Russia, not China. The result is that China is still not restrained -- and, now, neither are the U.S. and Russia. But that's not really a question of his Constitutional prerogatives, but of his wisdom. (Maybe it should be: I'm not really sure why the Constitution requires a president to get Senate approval for a treaty, but presidents are seemingly free to withdraw from treaties without any kind of Congressional backing. Treaties are, Constitutionally speaking, the law of the land. Presidents generally don't get to repeal laws willy-nilly.)

Trump used his power as commander-in-chief to contain Tehran, as in the drone killing of Iranian general Qasem Soleimani...

That was an act of war against Iran. Congress has the power to declare war. Trump didn't even notify Congressional leaders ahead of time. Lauding this use of "his power as commander-in-chief" is to suggest Congress has no real role in warmaking or foreign policy. That's not what the Constitution says.

...while reducing U.S. troop levels in Syria, Iraq, and Afghanistan. Congressional opponents sought to block Trump by narrowing his war powers and control over foreign affairs, but so far with little result. While Congress may seek to advance different policies through spending or legislation, the Constitution designed the executive branch specifically so that it could quickly and effectively protect national security and pursue our interests abroad.

Again: The Constitution gives Congress the power to declare war. In reality, it has mostly ceded that responsibility to the president in recent decades, but that reality doesn't make it any less Constitutionally suspect.

Third, Trump appointed a Supreme Court that could return the Constitution to its original understanding on questions ranging from federalism to individual liberties. He nominated Neil Gorsuch and Brett Kavanaugh, conservative judges with eminent qualifications, to the Supreme Court, and has filled more than a quarter of the lower courts with young, bright, conservative intellects. Liberals rightly worry that these appointments augur a sea change in constitutional law that could threaten the vast administrative state, the creeping control of Washington, D.C., over everyday life, and even Roe v. Wade’s protections for abortion. Progressives responded by attacking the Supreme Court. During the Democratic presidential primaries, senators Elizabeth Warren and Kamala Harris and Mayor Pete Buttigieg, among others, called for expanding the Supreme Court from nine to 15 justices so that the next Democratic president could pack it with liberals. 

I'm no fan of court-packing. But changing the number of justices wouldn't be against the Constitution: "The Constitution does not stipulate the number of Supreme Court Justices; the number is set instead by Congress. There have been as few as six, but since 1869 there have been nine Justices, including one Chief Justice." It has happened before. It might happen again. 

Democrats have attacked the personal records of judicial nominees and have even threatened to impeach Kavanaugh for sexual-harassment claims that the Senate fully aired during his confirmation. 

No they didn't.

All of these attacks leave Trump in the position of defending the Supreme Court and the institution of judicial independence.

This seems pretty clearly to be BS. Trump is no more interested in "judicial independence" than he is in the Bible he held aloft at Lafayette Square. As Noah Feldman notes:

In nearly four years in office, President Donald Trump has challenged the independence of the judicial branch more than any other president. He’s accused judges of being “Obama judges” or “Mexican judges.” When he’s been investigated for corruption or obstruction of justice, he’s routinely portrayed himself as above the law. He’s directed his administration to issue a spate of unlawful executive orders. With the November election looming, it’s a good time to ask: Can the legitimacy of the federal judiciary survive another four years of this president?

Yoo's notion that Trump is a defender of the Constitution requires believing two things: A) Trump is honest. B) That Congress doesn't have Constitutional prerogatives of its own worth defending. As ever, John Yoo is defending the presidency, not the Constition. As ever, he is doing it to dangerous ends.

John Yoo: Obama didn't kill Qaddafi enough

Torture advocate John Yoo gives Obama some credit for Qaddafi's downfall, but with a caveat:

But Obama does not get full credit, I think, because he took so long to intervene. Recall that the U.S. intervened only after the U.N. Security Council approved intervention. Obama chose to wait until Qaddafi had driven the rebels into a last holdout in Benghazi. He chose to restrain our operations along the lines set out by the Security Council, which forbade ground troops. This prolonged the ouster of Qaddafi into a full-blown civil war and resulted in more disintegration of the nation’s institutions than was necessary. To the extent that it is harder to get a new government to stand up and to collect and control Libya’s arms, part of the blame must also go to Obama’s delay because of his undue sensitivity to foreign opinion and the U.N.

Yoo doesn't really offer a basis for American intervention into Libya's foreign affairs that would demand unilateral American action, though. In the absence of a threat against Americans or U.S. soil—and Qaddafi posed none—President Obama was exceedingly wise to partner with other nations in the matter, lest the whole thing look like a bit of American empire-building ... a perception that might actually damage our interests in the Middle East, not strengthen them.

I don't think there was a sound American basis for intervening militarily. I feel certain that President Obama's decision to go to war there was constitutionally suspect, and that Congress was feckless in exercising its own power over the matter. For John Yoo, though, the world is endless ticking time bombs that can be solved only with the power of an unchecked Imperial Presidency. Whatever you think about that attitude, it is not keeping with the best traditions of American governance.

John Yoo's red herring

The former Bush Administration torture advocate thinks Obama is a wuss for actually trying to justify the assassination of an American citizen:

It may be that the Obama administration thinks that U.S. citizens who join the enemy are entitled to special rules — like those that apply to the police, instead of those that apply to the military. But this would be wrong too. As I explained in the Wall Street Journal last week, ever since the Civil War, our national leaders and the Supreme Court have agreed that a citizen who joins the enemy must suffer the consequences of his belligerency, with the same status as that of an alien enemy. Think of the incentives that the strange Obama hybrid rule creates. Our al-Qaeda enemy will want to recruit American agents, who will benefit from criminal-justice rules that give them advantages in carrying out operations against us (like the right to remain silent, to Miranda and lawyers, to a speedy jury trial, etc.). Our troops and agents in the field may well hesitate in the field, as they will not be able to tell in the heat of the moment whether an enemy is American or not.

I call BS. Nobody—nobody—disputes the right of American troops to engage enemy combatants in battle on an actual battlefield. If that's what Yoo means by the heat of the moment—and it seems so—then there's no dispute. If Anwar al-Awlaki had been charging against American troops in Afghanistan, AK-47 in hand, there would be no debate to be had. The chance that an American soldier will hesitate in that moment, wondering if the enemy is an American citizen, is virtually nil. And Yoo—once again—is disingenuous for suggesting so.

The debate comes in murkier areas. If reports are to be believed, al-Awlaki was tracked by American drones for weeks while officials waited to get a clear shot at him that wouldn't result in massive collateral damage. That's admirable if true, but it's also something less than a "heat of the moment" situation: American officials were able to make a considered decision to assassinate the man. And because of that, it's more than fair to question the process by which al-Awlaki was targeted.

But this is the world Yoo inhabits. There are precious few ticking time bombs, yet they always justify extreme action where considered processes might serve Americans better.

John Yoo and the Tea Party

John Yoo believes that during wartime there's virtually no limit -- legal, constitutional, treaty or otherwise -- on a president's power. He can suspend the First Amendment. He can order the testicles of a small child crushed. It was his legal advice that helped pave the way for the American torture regime.

So, of course: John Yoo is a featured speaker at Tea Party events.

Now: There are undoubtedly many fine and sincere Tea Party participants who legitimately want to see government restrained and fitted for a Constitutional straightjacket. That's fine. But even now, it's easy for me to believe that there's also a sizable chunk of people who didn't mind expanding deficits and tyrannical government overreach as long as a Republican is president. Tea Partiers who turn out for a John Yoo speech? Almost certainly in the latter group.

John Yoo's weird column about Elena Kagan

I'd say that John Yoo's Inquirer column about Elena Kagan is fairly standard talking points stuff -- hates the military, loves her ivory tower, mean to Clarence Thomas -- except for one kind of weird point that he makes. He's critical of Kagan's now-famous decision to support efforts to keep military recruiters off the Harvard Law campus because of Don't Ask Don't Tell. Which is fine, except...

I happen to agree that the president and Congress should allow gays to serve in the military. But Kagan announced her policy while the United States was fighting in Afghanistan and Iraq. And she defied a federal law - the Solomon Amendment - that ordered schools to provide equal access to the military for campus recruitment or risk losing federal funding.

Remember: John Yoo once suggested the president has the power to suspend even the First Amendment under his war powers, so it's no surprise that he criticizes Kagan for sharing his opinions -- but acting on those opinions during wartime. Which leads us to Yoo's summing up of his critique:

But it was more than just striking a pose. Kagan declared that excluding gays from the military was "a profound wrong - a moral injustice of the first order." Her argument, which lost 8-0 before the Supreme Court, shows she was an activist before she was nominated to be a judge.

Wait. What? "She was an activist before she was nominated to be a judge?" That's clearly meant to be a slam, but what the heck's wrong with that? I get why Republicans say they hate "activist" judges; are we now to believe there's something wrong with activist private citizens? And if so, what would Yoo say about Tea Parties or abortion protesters?

There's only two ways Yoo's argument makes any sense here:

* That he's so loyal to the GOP that he's gotta find a way to criticize Democrats even when they share his positions.

* That he honestly believes the duty of an American citizen -- at least in wartime -- is to submit without challenge to the decisions of government, even if those decisions are (by Yoo's own lights) wrong. In this universe, then, there is no right "to petition for redress of grievances," no check-and-balance provided by the judicial branch. The time-honored tradition of American dissent -- and of nonviolent resistance to laws deemed by citizens to be morally wrong -- is thus "activist," and thus potentially disqualifying when it comes to judicial nominations.

You might think Kagan was wrong to criticize the Don't Ask Don't Tell policy. You might think she was wrong for barring recruiters from Harvard campus. Fine. But Yoo goes a step further: He broadly criticizes Elena Kagan for acting on her beliefs at all because they conflicted with the laws and policies of the government. It's an argument that makes sense coming from torture advocate John Yoo, but that doesn't make it any less at odds with the American democratic tradition.