John Yoo (Photo by Ed Ritger via Wikimedia)
Stick with the Unitary Executive Theory and you’ll go far in this life! There’s no pit of professional shame you won’t be able to dig yourself out of if you’re willing to sing the virtues of unbridled presidential authority, even in times like these. Especially in times like these.
It worked for Alberto Gonzales. It worked for Ken Starr, who managed to retain his standing after not one but two professional embarrassments. It’s worked for Rudy Giuliani … well, more or less. And it’s working for John Yoo, who recently took to the pages of the New York Times to warn readers of the mortal danger to the institution of the presidency if the House of Representatives votes to impeach Donald Trump.
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The Berkeley Law professor is best known for his 2003 “Torture Memo,” written when he was the Deputy Assistant Attorney General. Yoo advised President George W. Bush that torture of enemy combatants held overseas was entirely permissible, and if not, then “necessity or self-defense could provide justifications for any criminal liability” that might attach to a soldier charged with doing bodily harm to a prisoner.
He might have added that unflinching embrace of Federalist Society dogma is a pretty good defense, too. Because instead of being shunned from polite society, he is now blessing America with his views on impeachment. We’ve all been breathlessly awaiting the opinion of a guy who thinks the president has the inherent authority to “torture somebody, including by crushing the testicles of the person’s child,” right?
Yoo concedes that using congressionally allocated foreign defense spending to coerce the leader of Ukraine to investigate Joe Biden is bad if true. But, he cautions, “we should beware that rushing into an impeachment may do long-term harm to the presidency and our national security.”
Specifically, Yoo’s brow is furrowed with worry that “Congressional interference into presidential conversations with foreign leaders would violate Article II.”
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A president, even one who is possibly engaging in wrongdoing, must have confidence in the confidentiality of his communications or he will be unable to perform his constitutional duties and our international relations will fall victim to government by committee.
Better that a corrupt president should be able to quid pro quo away in private than that his sacred communications with foreign leaders be infringed, because “[u]nder the Constitution and long practice, the president alone conducts foreign relations.” Clearly Mr. Yoo has never read Article I, or Article II, Section 2. Or heard of a congressional delegation.
But he has read Myers v. United States, 272 U.S. 52 (1926), from which he infers that the president is king of the executive branch and thus cannot be the subject of a whistleblower complaint because “Congress cannot subject the president to the supervision, control or review of a subordinate officer.”
Never fear, though. Mr. Yoo has a solution to the problem of a president who commits high crimes and misdemeanors with a foreign government.
A special congressional committee could review classified information in secret and bring United States and foreign officials to testify under oath.
What a novel idea! Maybe they could call it a Permanent Select Committee on Intelligence, and it could interview witnesses in a classified setting. But what if the president and his subordinates in the executive branch refuse to comply with that “special congressional committee”?
The House could meet any stonewalling by cutting intelligence, military and diplomatic funding. Congress’s traditional oversight powers will force the intelligence agencies and the White House to provide the facts behind the Trump-Zelensky call and any delay in Ukrainian aid.
Quit laughing! Mr. Yoo is a very serious thinker, and if he says that the executive branch will bow before the force of “Congress’s traditional oversight powers” as opposed to shouting “EXECUTIVE PRIVILEGE” and telling Adam Schiff and Elijah Cummings to take a hike, then it must be true. Because the New York Times would never give a platform to an unrepentant, intellectually dishonest, ideologue, right?
Of course not.
Beware of Impeaching Trump. It Could Hurt the Presidency. [New York Times]
Elizabeth Dye lives in Baltimore where she writes about law and politics.