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.

Trumpistas: Trump = America

The folks over at the Trumpista website American Greatness have a new piece up defining their brand of conservatism as, well, "Americanism."

The party of Obama and Hillary is the Anti-American Party. They want to put the American experiment behind us, to complete the Progressives’ 100-year project of progressively overthrowing the Constitution. 

Donald Trump has called himself “a common sense conservative.” What, we may ask, is common sense conservatism? One thing is certain: it means loving America. Trump wants to save America by rallying the American people around the effort to save the republic.

To which the proper response is — well, unprintable.

America is more than a limited government view of the Constitution — and that I have to tell my Trumpist friends this astounds me, makes me sorry for the narrowly legalistic view of what America is, has been, and should be that they think the spirit of this country can and should be contained in a particular modern interpretation of words written more than 200 years ago.

The folks at American Greatness — I've spent some time with them before they launched their effort to put a shiny gloss of respectability on Trump's narcissism — strongly believe that the Declaration of Independence and Constitution are not really separate documents, but that the Constitution flows, spiritually, from the words of the Declaration. The writers of both documents were not demigods, but they were men — flawed, often hypocritical men.

But they gave us this very important sentence:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." 

That's an idea so broad that even the old white slaveholding men couldn't contain it.

Let's be clear: Trumpism holds that not all people are created equal. Today's AmGreatness piece includes this criticism of Democrats: "They are determined to flood our country with people from third world countries who are not interested in the American idea and Muslims who reject the American idea outright." It echoes the "Flight 93" sentence I quoted earlier today: “The ceaseless importation of Third World foreigners with no tradition of, taste for, or experience in liberty means that the electorate grows more left, more Democratic, less Republican, less republican, and less traditionally American with every cycle."

What you'll notice is that there is never any effort to recognize any folks from beyond our country's borders as individuals with varied ideas and tastes and beliefs. Instead, all brown people — let's be honest about who they mean here — are lumped together as secret tyrants who would mercilessly expose right-thinking Americans to the oppression of sharia, OSHA, and occasionally having to hear Spanish spoken in public.

This smearing of entire peoples, that's un-American.

The only way that the AmGreatness idea of "Americanism" makes sense is if "American" means, more or less, white and Christian.

Understand, though, that this will increasingly be the project of both Trump and his intellectual avatars. This isn't even the first time this week they've tried to define Trumpism as Americanism. They are wrong. They don't get to claim America for their ideas and their ideas only. And thank God. What an ugly, mean, selfish country this would be if they won.

The Constitution and 'invented rights'

After this week's Scripps column in which I pooh-poohed "judicial activism," I received several responses from conservative readers suggesting it's actually very easy to spot.

Read the constitution and uphold it. Don't manufacture "rights" not mentioned in the constitution. What does the constitution say? Don't impose your opinion, or your own political philosphy. Judicial activism is manufacturing "rights" not enumerated in the constitution.

This, I think, is a fairly common conservative view. It is also--according to the Constitution itself!--dead wrong.

Here is the text of the Ninth Amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Founders were worried that by creating a Bill of Rights, they would legally imply that people didn't have other rights not named in the Constitution. This is how they covered their rights-loving butts. And yet people constantly commit the very error the Founders were trying to avoid. This is very odd for a movement supposedly so devoted to preserving the Founders' wishes and vision.

I'm not sure if this was the Founders' intent--and I don't actually think that matters--but what that amendment effectively means is that we have to continue to always be in conversation about what those rights are and what they mean. Some folks would suggest that Ninth Amendment rights are frozen at what the Founders would've understood to be rights--which is why Clarence Thomas does in-depth investigations into parenting practices of the 1780s and Antonin Scalia effectively disputes the idea that women are citizens. The rest of us understand that this is silly at best and pernicious at worst.

As those examples indicate, this kind of thinking replaces the "rule of law" with a kind of "tyrannical legalism" that dispenses entirely with common sense. Conservatives like to suggest that's a liberal problem, but I don't think it's limited to the left. One example: The authors of anti-torture laws explicitly didn't ban specific techniques because they didn't want to give the impression that other coercive, pain-inflicting methods were OK. They couldn't make an exhaustive list, so they didn't make a list at all, instead crafting laws to describe the effects of torture. The result is that we have Bush Administration conservatives tell us that waterboarding isn't actually torture.

What does all of this mean? Well, it probably means that rights evolve. And that our commitment to protecting them evolves as well. It's not something that should happen willy-nilly, and it doesn't: It's a combination of society, Congress, and (yes) the courts moving in a commonly accepted direction, and that process usually takes time. The results can sometimes be messy and controversial--not everybody is on board with the right to abortion, for example--but I'll take that messiness over the clean precision of Scalia's vision that denies women the benefits of citizenship. It doesn't mean that some rights are "invented," at least not in the sense that the rights are thus artificial. It just means that they weren't named in the Constitution. That's not as big a deal as some people think.

About the Constitution, divinity, and Mennonites

The latest edition of The Ben and Joel Podcast is, well, kind of weird. In it, we interview Larry Arnn about his new book, "The Founders' Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It." Arnn's main point is that the Declaration and the Constitution don't have opposing philosophical foundations—despite what some scholars say—but I got hung up on the "divine and natural part" and you can hear so in the podcast.

The word "God" appears in Arnn's text 64 times. He references the Declaration's appeal to "the laws of nature and of nature's God" 21 times. And so, for me, the book reads much like a theological declaration as much—or more—as it is a work of history or political science. Is there room for a secular-minded person in a "divine" understanding of government? What's wrong with believing the Founders were a group of smart men—but also human and imperfect, people whose work was great but still leaves room for improvement? You can hear Arnn's answers in the podcast.

You can also hear him, jokingly, refer to me as a "defector" from the principles of my alma mater, Tabor College. And, well, guilty as charged. Tabor is a largely conservative, evangelical Christian college. I fit none of those descriptions anymore.

But after we finished recording, as I continued to digest Arnn's work and the podcast, I realized I'd still find his constant invocation of the divine troubling, even if I were not a "defector."

The Mennonites I grew up around had an interesting history. They were pacifists, believing that the example of Jesus precluded them from taking up arms. Because of that theology, the fled as a group from Germany, their original home, to Russia. And then from Russia, in the late 1800s, to Kansas, where I grew up.

The mix of theology and experience—recent enough that churches in my hometown were still worshipping in a Russian-inflected version of German into the 1950s—led many of the Mennonites to be skeptical of nationalism, in particular, but certainly any brand of patriotism that seemed to claim God on its side. As Christians, the felt duty-bound to be respectful of the authority of government--but I'm dubious they'd spend much time reflecting on the "divine" foundations of man-made government. Even when that argument is made, as Arnn does, in the service of limited government.

The problem with invoking "divinity" as the source of a form of government is that it really ends the discussion. You can't argue with God, usually. But there are plenty of arguments to be had, as evidenced by our discussion. Arnn seems like a good and pleasant man; I've no wish to quarrel with him! And he's right that the Founders referenced God quite a bit in their discussions; what that proves is that ... they referenced God quite a bit in their discussions. It doesn't mean the Constitution is marked with divinity.

Walter Phillips Wants Philly Courts To Violate The Constitution

Philly's court system is a mess. Lots of people get charged, but not so many ever make to a plea or a trial: They go underground instead. In today's Philadelphia Inquirer, former prosecutor Walter Phillips provides the solution: Trials in absentia!

One way the city's Common Pleas judges could address this problem - without any expense - would be to take the unified stance that trials will go on even in the absence of such defendants.

The trouble is that many Philadelphia judges just won't call the bluff of absent defendants and follow the law that allows trials to go forward in their absence. A variety of reasons have been advanced for their timid stance: fear of reversal, the awkwardness of forcing defense attorneys to make fundamental decisions without consulting their clients, and just plain lethargy.

This would seem to violate Constitutional guarantees that a defendant can confront the evidence and witnesses against them. But Phillips waves those concerns away, suggesting that there's plenty of Supreme Court precedents suggesting such trials can take place anyway.

And sure, the topic has been addressed by the Supreme Court, but the takeaway is that conducting a trial without the defendant present can take place only in limited circumstances: If a defendant is disruptive during the proceedings, for example, or skips town after the trial has begun.

But widespread, systemic absentia trials for tens of thousands of people? No. Here's why: Those rules allow for the trial to proceed only if a defendant is present at the very beginning of a trial.

There are, I'm sure, exceptions to what I'm about to say. But the problem with absentee defendants in Philly isn't that they show up for the first day -- or first hour -- of their trial, then flee the scene. It's that they don't show up at all.

Philly courts are a real mess, yes. And nobody likes to see justice delayed or denied because some two-bit punk hit the road. But violating the Constitution -- despite Walter Phillips' protestations -- isn't really the way to proceed.