Transcripts For CSPAN2 After Words After Words John Yoo Defe

CSPAN2 After Words After Words John Yoo Defender In Chief July 12, 2024

Little bit of time to prepare for this interview, i want to start because you wrote a piece in 2017 the unloaded pretty strong on President Trump for various overreach in the exercise of executive power and now youre presenting him as a defender of the Constitutional Order regarding president ial powers, i want to ask you what changed your vehicle, how did you move from where you were before to what you have presented in your new book . Thank you for inviting me too come along with you and we are looking forward to this conversation and as you know ive been a meyer on your work with executive privilege, that should be a lot of fun, i started out weary and President Trump, was not a supporter in the 2016 election and the thing that worried me is he was a populist and constitution seems designed to stop populace. It is fairly antidemocratic in nature in a lot of ways like the senate and judicial review in the Electoral College, the presence of the states as important parts of the constitution, i was worried when trump came in as a populist who wants to achieve an agenda that he feels or received a mandate that he would strain against or go beyond the constitutional restraints of this power and i was worried that he was doing that in the travel ban, threats to build a border wall, i urge them to use the president ial powers primarily of Foreign Affairs at their height and instead to understand in Domestic Affairs that his role is to enforce the law and work with congress to get legislation passed, what happened since 2017 to today, i found his critics have become the ones who have gone too far in trying to stretch the constitution because i think trump is so outrageous and they launched attack after attack on his legitimacy, its trumps critics per capital who have talked about getting rid of the Electoral College and talked about packing the Supreme Court to add six new members to get it to 15, who want to return with her world was statutory real independent councils which criminalize our policies. One of the nationalized large parts of our economy, i think it has left trump undeniably using the constitution as a shield weather than using constitution to pursue his own self interest but that leaves the field of relying on more traditional interpretation of the constitution so i argue either intentionally or unintentionally he has become more the defender of the traditional constitution that his critics. As a member of topics you cover from executive order in the border wall, the impeachment process, im going to try to go through some of these and get your take on the president s exercise of executive authority in these areas, starting with the impeachment i get the point that you make that the president did not yield and did not apologize and the legitimacy of the process, but you also dont hold the president blameless for how he handled the controversial phone call for the ukraine matter altogether, my question is, is it a win for the institution of the presidency given an affirmation of trumps the pensio constitutionalism whs defending his position which he himself created and never should happen in the first place. I think in a sense in my mind how the constitution intends to deal with executive misconduct or abuse of power and maybe he had an unconventional level approach or even a some people claim as a mixture of the Public Interest with his own private interest, the deeper constitutional question, how does the constitution try to constrain executives, i thought it really doesnt in two ways, the election process is for most in terms of the framers view into you think is abusing their powers and you elect congressional majorities to propose him and you get him out of office, i thought the mistake that occurred here was impeachment was being used for activity which fell short of the constitutional standard, i am not one, i dont think impeachment requires a crime, i think i cried a misdemeanor does include abuse of executive power but it has to be a serious one and it seems to me the kinds of accusations that were being levied against President Trump were designed for the electoral process, it was not a serious level of treason or bribery in the kind they came to france for paying off the king of england during the 17th century, thats what the framers had in mind, i think he can see that in the founders requirement that the senate gets to two thirds before actually would remove a president even though it put impeachment in the hands of a simple majority of making it difficult to remove a president through impeachment and that would funnel the kinds that we saw that would be funneled into the electoral process. Let me go back deeper into the circumstances that led to that, the president likes to talk about the deep state of officials who he believes some defense of the book in the legitimacy of the 2016 election and in the president s view, they have acted to undermined a duly elected president , i ask that you address a couple located issue of the principal loyalty of people who swore an oath to the constitution and onto the branch of government or the president and who believe they have an obligation to honor that oath by bringing to attention of authority whether its internal oversight or committees in congress, potentially illegal or unethical behavior. I think this issue arises twice, not just impeachment but the russian collusion and it raises a deeper philosophical about government, im not claiming trump is thinking deeply about political theory but i think by his pursuit of his rational political self interest is advancing the greater constitutional good which is more tied to the 18th century, let me describe what he was fighting against and away which is whether the fbi, jim comey in the headquarter or whether its numbers of the Foreign Service and the Permanent National security council, i dont think of it as a deep state, i think the phrase comes from turkey, i think that more as a progressive era bureaucracy, the idea of which was most important Public Policy decisions are really technical or scientific or professional, so you want to delegate power over those decisions to those experts and insulate them from politics, not increase political control but reduce, this is woodward wilsons fault and had a great impact on our constitution, i think you see that in the fbi, National Security bureaucracy in the Foreign Service, trump embodies more in 18th century view of what the executive branch is about, we the voters elected twhirl college, hes only one charge with executive power in enforcing the laws and everyone in the executive branch is conducting Foreign Policy who is enforcing the laws are doing as an assistant to the president so its a much more Political Division of the bureaucracy, the bureaucracy is responsible to the president and we hold him accountable through politics, thats what happened in the impeachment and the russia collision investigation and you have the permanent experts, the Foreign Service where the fbi conclude that the president essentially was unfit for offi office, they would not of computed to the founders, they would challenge the head of their own branch as unfit, it is not their job, you say there is an impeachment system in congress does has the right and the power to remove president s to abuse that power and they are going gather the information from the executive branch to people who work there, that is because they dont think impeachment was off and i dont see how impeachment would run other than people say the president misused his powers and witnesses from the executive branch. It was a standard that the house and members of the senate were using as a high crimes and misdemeanors, instead i wouldve thought all those things and impeachment were much more appropriate for oversight hearings to be brought out for spending cuts, the usual tools that congress uses to fight with executive branch and putting it before the voters as we will this november, this will be before us when we go this november, thats the better solution. We talk a lot about executive power and prerogative and trump defended the institutional presidency, i wanted to go through some of the different powers of the presidency, starting with the executive orders, thats an easy one to talk about, the president has the authority to reverse actions by executive order or at least earlier, under that is signing executive orders with real president ial leadership and we have a President Joe Biden next year, i would imagine he would adverse a road under really large number of executive order, is their legacy for president to engage in the traditional process of negotiation, building consensus, getting compromising congress in and getting the walls to the system that will have a greater permanency rather than willynilly large numbers of executive orders and saying i did a lot of things. I think thats a great point, the book doesnt approach it the exact way you did, just the way i think of it is that the president has his power of reversal, i thought that was something new and a lot of things a president can do unilaterally and they have to do it reverse what the last guy did, you are right, if the president only offers executive order, he is laying and vulnerable to a simple reversal when President Biden comes in generally 21st, only by working with congress to affect statutory change you give it a longlasting legacy impermanen impermanence, i agree with you, President Trump, like president obama have been frustrated congress not being able to get a lot of their agenda through, naturally theyre going to turn to executive orders but i dont think its so long as the constitution says, so long as president s have that power to quickly and neatly reverse any use of unilateral executive power by their predecessors, i think that was by the Supreme Court decision on the daca case which really surprised me in the book and i thought it would turn out the other way and then i wonder all the implications that would occur that it did not allow President Trump to reverse the daca program. On that let me take a contemporary application of this particular issue, can the president issue an executive order to prohibit evictions as recently that they might like to do with congress that approves the temporary moratorium, without being appropriate use of an executive order or should the president as well, only after the tiktok, can the president issue an executive order banning tiktok . Im sure lots of parents want the president to have that power. [laughter] but it is really interesting, this power that president obama creates an daca for the first time is like creating a program by not only enforcing the law, which leads daca programs, for example the rent eviction, i have not studied that closely but simply to meet eviction law is a state law issue and i dont see how the federal government by restraining itself prosecutorial discretion and have an effect on the state and whether theyre going to evict people, if theres going to be any kind of eviction waivers at the federal level at the state court can the federal government and its a whole thats expanding the power by attaching and spending for our conditional spending when the states except the pandemic relief money, it is not the same thing, also i would say with tiktok, that the traditional use of the executive order as you are mentioning earlier and effective power in the more common executive order is the execution of some delegated power from congress and now you know congress has given a huge amount of power to the executive branch to regulate International Economics for security reasons, already i believe there have been a National Emergency declared for sanctions purposes wer with regd to China Businesses and a lot of its companies and practices are under investigation by the fbi, im sorry if President Trump bands tiktok, that seems constitutionally straightforward, is just an exercise of the 1977 law that gives congress the president the sanction national companies, transactions for national securities, if President Trump were trying to do unilaterally without any congressional, that would be a difficult question, i dont think without congress the president has an International Sanctioning power. Let me turn to another contemporary issue, to be fair the author, youre not writing during the pandemic like with all books is published in late july, i was looking at your citation in the last source was february of this year. Guilty as charged. I think its a good topic to bring up with the exercise of executive power, this is absolutely the biggest challenge of president ial leadership over time and none of us expected this challenge, all point out at one point you said challenges at home dont have the unforeseen and unprecedented, a virtually thats what happened in this particular case it came from abroad. Right it became a domestic crisis, the president has an obligation to establish his leadership in the country that has been really hungry for that and in the book, which again before the pandemic, you did not have a chance to to approach the president leadership and i want to ask you to apply it in a sense because President Trump is a strong and vigorous leader, but where is that leader during the outbreak when he said effectively to the state youre on your own, the federal government is not a shipping clerk, when the governors were pleading for some help getting protective equipment and also in a new edition of this book, i dont think in ignore the pandemic as a new chapter in the president ial powers, what are you going to say in the next edition when you discuss the pandemic in this president s leadership. Im glad you raised that, that the chapter i wish i couldve written after the deadline, i thought it would wrap up nicely with the end. During this presidency things keep happening which consume a whole presidency over and over again, it is interesting, people criticize trumper being a dictator, too much executive power, in february and then within a month people are saying why arent you doing more, this i think is not really the separation of power, its federalism, the constitution no matter what the president s powers are with filling in with the federal government can or cant do they still have limits, i think this is where this wouldve gone along with my thesis that trump has been respecting the federalism limit on his power even to his own political detriment, the populace and him im sure wants to set closing dates and reopening dates for every business in the country and wouldve wanted to set standards for social distancing, but the constitution does not give the federal government that power, the constitution is one of limited federal powers and we all along have had the understanding that Public Health and safety is primarily a state and local issue and that the federal government can come in as a support but the frontline trench warfare starting the pandemic or disorder is going to always be city and state, local authorities and i think the federal government has been doing what its supposed to do, it can provide money to the states, it can provide equipment and personnel and resources, it can fund a vaccine, technical research, spread information but the federal government does not have the people or the actual mechanisms of government to take care of and nationwide pandemic, if you think about how many people that the federal government even has, how can the forces pandemic, social distancing system, i like to point the hall the higher fbis, the higher workforce is smaller than the new york police department, there is a real agency of government, arm of public power and the widespread pandemic has to come from the state government, it is interesting because i think a president with the constitutional limits on power when even try to go beyond that, i think with the political detriment stayed within those boundaries. Is if a fair question to ask, can you imagine fdr saying in a situation like this, this is for the state and were not a shipping clerk, thats what bothers so many people that they expect the president to be big and powerful and authoritative and how difficult is it to say wear a mask. As i argue, this is why the founders created the presidency and why even have an independent executive branch and the parliamentary system where the chief executive is a leader of the Majority Party and the party would be nancy pelosi or paul ryan if you mea years ago, they wanted the branch of the government to act quickly and swiftly in a time of emergency and unforeseen circumstances and crises so we expect president s to do that and we think its easier to do that when you have an enemy who is attacking or natural disaster, someplace where the president can use their own constitutional powers or invoke legislation that provides the emergency power, it seems to me Something Like a pandemic is just outside the grasp of the national government, its too large a problem, to its a great social problem and affects everybody, and you could say please wear a mask, please stay socially distant, the federal government could create the law and enforce it to make you where mask, to say 6 feet away from each other. I hope its not offtopic but some scholars are making the case that this is an indictment of the federal system itself that were not terribly well suited for handling this crisis and you look at nonetheless some of the under federal systems, germany and australia, for example canada were they done a lot better, is there something inherent to the system that led us to the situation that we are in now with this pandemic and the president really was constrained and the tools that he had available to solve the problem and some of the democracies. President biden or president hillary clinton, i dont know the outcome wouldve been that different just because there is a restraint on the president an

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