I’ve long held a special place in my heart for John Yoo, but not in a good way. During the George W. Bush Administration, he wrote the so-called “Torture Memos” that gave legal imprimatur to waterboarding and other heinous acts used against terror suspects. Yoo, it’s fair to say, had a rather expansive view of presidential power, at least when a Republican was in charge.
That led to this infamous moment Notre Dame’s Doug Cassell in 2005:
CASSEL: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
YOO: No treaty.
CASSEL: Also no law by Congress. That is what you wrote in the August 2002 memo.
YOO: I think it depends on why the President thinks he needs to do that.
Yoo is now a law professor. Together with Robert Delahunty, he co-authored a piece for the Claremont Institute’s Center for the American Way of Life decrying Trump’s indictment on federal charges for keeping secret docs and obstructing the government’s effort to get them back.
We can agree there are cases where former presidents should undergo investigation and prosecution. In the Federalist Papers, Alexander Hamilton argued that presidents could undergo prosecution after their conviction in a Senate trial of impeachment for treason, bribery, or other high crimes and misdemeanors.
“After having been sentenced to a perpetual ostracism from the esteem and confidence, and honours and emoluments of his country,” the founding’s foremost defender of presidential power wrote, “he will still be liable to prosecution and punishment in the ordinary course of law.”
But even if a jury convicts Trump, none of the crimes of which he is accused rises to the level of impeachable conduct.
I was curious what Yoo wrote the last time Trump was impeached. It’s interesting.
Senator McConnell and other Republicans senators should pause and think before they join the House in its rush to judgment. Trump certainly committed impeachable acts. First, he encouraged mass public disorder to pressure Congress and his own vice president into denying the results of the Constitution’s Electoral College system — dispersed throughout the states — that found Biden the winner of the 2020 presidential election. Second, Trump proved derelict in his duty. He watched live video of the riots rather than calling on law enforcement and even the military to protect Congress as it performed one of its most important constitutional functions. Two of the president’s most important responsibilities, as explained by the Founders in defending the new Constitution, include executing the laws and defending the government and the nation from attack. On January 6, Trump failed to carry out both duties.
But Trump did not commit a federal crime.
The two add: “Even if Trump is eventually convicted, the Biden administration will have destroyed one more constraint on partisan politics and further damaged the public’s respect for law enforcement. “
If we follow the through-line here Yoo (and, occasionally, his co-author) have in recent years made the case that:
* Even if Trump committed an impeachable offense, he shouldn’t be convicted because he didn’t commit a federal crime.
* Even if Trump committed a federal crime, he shouldn’t be convicted because it’s not an impeachable offense.
Some of this is nonsensical: What does “impeachable offense” even mean for a guy who isn’t president? That’s not a standard that applies *at all* in this case. But even granting the widest possible latitude to Yoo et al’s arguments, it’s impossible to escape a sense of “heads we win, tails you lose” logic being applied here.
Don’t take it seriously.
The scariest thing about John Yoo is that he’s molding the minds of young law students.
A thousand years ago those of us in law school ignored our nuttier professors. I’m not sure that’s true today.