John Yoo, a law professor best known for writing the justifications for the Bush administration’s warrantless wiretapping and torture policies as deputy attorney general, argued that Donald Trump is not claiming new or unprecedented presidential powers, but is using existing authority to bring the presidency back toward its pre-Watergate power. During an interview with Mark P. Jones of the Baker Institute, Yoo framed Trump’s approach as building on long-standing trends while seeking to roll back some of the constraints imposed after Watergate. “A lot of law professors think President Donald Trump is a threat to democracy and a threat to the constitutional order. I don’t think he is as much of a threat as people think he is,” Yoo said. “I think a lot of the things he’s done are continuing trends that have been going on with the presidency for many, many years.” “He’s really picking up on many of the things that the Supreme Court has done or past presidents have done,” he said. “He’s amplified them and applied them in new areas, but I don’t think he has a fundamentally different constitutional theory or approach to the presidency.” Yoo emphasized that Trump has generally relied on statutory authority and existing legal precedent rather than claiming sweeping new, inherent powers for the presidency. “If you were to read media reports, you would think that tariffs or deploying troops to cities means President Trump is claiming some new kind of constitutional authority. But if you look carefully at what they’ve done, they have been claiming that Congress delegated these authorities, and these are very broad, open-ended statutes,” he said. “He didn’t claim the president has the right to just impose a tariff. He said Congress gave the executive branch this right,” Yoo said. “Presidents have used that statute to put tariffs on Cuba, North Korea, Iran-they’re using it right now with Iran-but it had never been used to say everybody in the world pays 10%. That was what was unprecedented.” “And notice: when he lost, the tariffs stopped. I think they’re starting to issue refunds.” “Also notice: he hasn’t said he’s going to act under constitutional power and impose tariffs. Similarly, he hasn’t said he’s sending troops back to Los Angeles based on inherent presidential power,” Yoo continued. “And you saw Republicans make the same arguments against President Barack Obama-about Libya, about Syria, about drones-but they always refilled the coffers when he asked.” Yoo also argued that the concept of a ‘unitary executive’ claiming all powers not given to Congress or the courts in the Constitution is not new, and was not invented in the 21st Century by President Trump or Bush. “People often attribute the idea of the unitary executive to me, but it’s not my idea. I wish it were my idea, but it’s actually Alexander Hamilton’s idea,” he said. “His argument was that any power that is executive in the government has to belong to the president-unless the Constitution explicitly takes it away… James Madison had the contrary view. He thought that if there was silence in the Constitution-on things like terminating treaties or setting foreign policy or immigration authority-it should default to Congress.” At the same time, Yoo said Trump’s approach may be aimed at reversing post-Watergate limits on presidential power, while following long-standing precedent and trends. “One way to understand what President Trump is doing-he had his time out, he thought about what he was doing, and then came in with an agenda-is that he is trying to systematically undo all of those Watergate reforms. He’s doing it one by one.” “In fact, just last week, they said they weren’t going to follow the Presidential Records Act anymore-which was a law passed about the Watergate tapes themselves,” Yoo explained. “So it’s actually quite systematic. If you made a list of all the Watergate laws, that’s what Trump seems to be targeting.” “I’m not saying Trump himself knows he’s doing it, but I think his administration does. I think that was the agenda behind a lot of the executive orders,” he said.

[Starting around minute 24] JOHN YOO: I think it’s fair to say a lot of law professors think President Donald Trump is a threat to democracy and a threat to the constitutional order. I don’t think he is as much of a threat as people think he is. I think a lot of the things he’s done are continuing trends that have been going on with the presidency for many, many years. The one I’ll just pick out-because the Supreme Court is going to issue a decision on this question this summer-is whether the president can fire not just cabinet agency heads, but basically any officer-what we call an officer of the United States-anyone involved with the execution of federal law. And you would think from the media and some of the things my academic colleagues say that this is a radical, revolutionary opinion. But when you look at what Trump is saying, and what his administration is saying about this, they’re repeating the Roberts Court’s opinions back to the Supreme Court. It’s really been the Roberts Court that, for 25 years-people just haven’t noticed-has struck down four federal agencies as unconstitutional in the last 20 years because the president can’t fire the head of those agencies. And so, I think-or take another case, for example-the Supreme Court’s decision in Trump v. United States about the immunity of the president from prosecution for his official acts. This wasn’t Trump who issued this as a directive. This is one of the most expansive defenses of presidential authority, and it came, again, from the Supreme Court. So it’s not that Trump is inventing these ideas or that he’s pushing theories that have never been pressed before. He’s really picking up, I think, on many of the things that the Supreme Court has done or past presidents have done. He’s amplified them and applied them in new areas, but I don’t think he has a fundamentally different theory or approach to the presidency. … [Skip to minute 36] QUESTION: And do you see that as bipartisan? That is, are there Democrats or Republicans in the White House or in Congress that JOHN YOO: Yeah, I do. I mean, you saw Republicans make the same arguments against President Barack Obama-about Libya, about Syria, about drones-but they always refilled the coffers when he asked. And so I don’t think members of Congress have been entirely consistent. I do think Senator Tim Kaine, who has been pushing these votes on terminating the Iran war, has been consistent. He wasn’t very loud about it, but he wanted to have a vote on U.S. support of Ukraine under the Biden administration, and he did want a vote on the Obama wars as well. So this is not, I don’t think, a Republican-Democrat issue. This is more an issue about presidents and Congress. But again, I don’t think this is a constitutional failure. This goes back to your first question about what scholars say. I think some scholars believe that the inability of Congress to stop presidents is a failure of the Constitution. I don’t think so. I think it’s just a matter of political will. I just don’t think Congress wants to use the constitutional authority that it already has. QUESTION: Okay. And then sticking on this idea of presidential action that is unilateral-going from abroad into domestic politics-to what extent is the president empowered to act unilaterally in the case of a crisis, both in terms of actions and defining whether a crisis exists? JOHN YOO: This is interesting because, again, if you were to read media reports, you would think that tariffs or deploying troops to cities means President Trump is claiming some new kind of constitutional authority. But if you look carefully at what they’ve done, they have been claiming that Congress delegated these authorities, and these are very broad, open-ended statutes. The authority to send troops into cities is based on something called the Militia Act of 1792. It’s been amended over the years-expanded, actually-and it has really loose language about when presidents are allowed to call out troops. They’re allowed to call out troops to overcome any conspiracy to interfere with the execution of federal law. That’s a very low standard. In fact, this is the first time ever that lower courts- the Supreme Court still has to weigh in-but lower courts have blocked the dispatch of troops. That’s the first time in American history any court has ever done that. But notice: Trump pulled the troops out. Same with the tariff case. This is a case-David Libra and I might be the only people in the room who know the statute because it’s so boring and technical trade law-but he used something called the IEEPA statute, passed in 1977. He lost. I argued at the time this was a misreading of the statute. There are other trade statutes he could use, but he couldn’t get the kind of worldwide blanket tariff he wanted. But again, he didn’t claim the president has the right to just impose a tariff. He said Congress gave the executive branch this right. Presidents have used that statute to put tariffs on Cuba, North Korea, Iran-they’re using it right now with Iran-but it had never been used to say everybody in the world pays 10%. That was what was unprecedented. And notice: when he lost, the tariffs stopped. I think they’re starting to issue refunds. And the president is entitled to go back and say, Maybe there’s a narrower trade law I can use. There are two others, but they’re much narrower, and he won’t be able to replicate the same regime. But notice: he hasn’t said, I’m just going to act under my constitutional power and impose tariffs. Similarly, he hasn’t said, I’m sending troops back to Los Angeles based on inherent presidential power. I do think there is a contrast between domestic and foreign policy. In foreign affairs-Venezuela, Iran-he is using constitutional powers. He’s not claiming a statute gives him the right. But with domestic affairs, claims of inherent presidential power are much weaker, so the administration has shied away from that. QUESTION: And then let’s flip it around-thinking about the president faithfully executing laws. To what extent does the president have latitude in enforcement? JOHN YOO: Yeah, this is one of the hardest questions. The Constitution says the president has the responsibility-what’s called the Take Care Clause-to take care that the laws are faithfully executed. But at the same time, we have prosecutorial discretion. The executive branch can’t prosecute every violation of federal law. They have to pick and choose which cases to bring. Yes, it’s obvious President Trump is using that power to single out people he thought persecuted him. But the courts have said they will not review those decisions. For at least a hundred years, courts have said they’re not going to ask why the attorney general prosecutes one person and not another. It can seem completely unfair, but that decision is vested in the executive branch. So the constraint has to be political: public opinion, congressional oversight, even impeachment. And notice, ultimately, it’s the courts that decide whether a prosecution succeeds-because they decide whether someone is convicted. … [Skip to minute 1:06:00] QUESTION: I wanted to ask about the unitary presidency-the theory-and whether that could backfire. I mean, can you explain it? JOHN YOO: No, I’d be happy to. People often attribute this idea to me, and it’s not my idea. I wish it were my idea, but it’s actually Alexander Hamilton’s idea. In the Pacificus papers I mentioned earlier, he’s the one who really developed what we now call the unitary executive theory. He didn’t call it that, but his argument was that any power that is executive in the government has to belong to the president-unless the Constitution explicitly takes it away. So he said the treaty power is executive. The only reason the Senate participates is because the Constitution specifically says so. But otherwise, Hamilton argued that the president has broad authority. We’re actually talking about this now-terminating agreements like NATO. Hamilton said the president can terminate treaties on his own, even though the Constitution doesn’t mention that at all. That’s essentially the unitary executive theory. James Madison had the contrary view. He thought that if there was silence in the Constitution-on things like terminating treaties or setting foreign policy or immigration authority-it should default to Congress. And more broadly, Madison’s theory was that you should have a balance of power between the president, Congress, and the courts. You want each branch strong enough to block the others. Even then, he worried that Hamilton’s reading would produce a president that was too powerful. So you’re right-your suggestion that this could backfire has a historical example in Richard Nixon. Many of the arguments that President Trump is making now are arguments that Nixon made, and many of the actions Trump is taking are things Nixon also did-and there was a counterreaction after Watergate scandal. You had limitations on spending. That’s when the War Powers Act was passed. That’s when the independent counsel law was passed. So there was a whole series of reforms. One thing I’ve argued is that one way to understand what President Trump is doing-he had his time out, he thought about what he was doing, and then came in with an agenda-is that he is trying to systematically undo all of those Watergate reforms. He’s doing it one by one. In fact, they just did one last week where they said they weren’t going to follow the Presidential Records Act anymore, which was a law passed about the Watergate tapes themselves. So it’s actually quite systematic. If you made a list of all the Watergate laws, that’s what Trump seems to be targeting. I’m not saying Trump himself knows he’s doing it, but I think his administration does. I think that was the agenda behind a lot of the executive orders.

RealClearPolitics Videos