Lessons for President Trump on executive power - from an unlikely source

Michael D Goldhaber, IBA US Correspondent

‘He's gone too far and it's harming his presidency,’ says the former Deputy Assistant US Attorney General John Yoo in a wide-ranging interview on the history of presidential power. ‘I hope he course corrects.’

It’s one thing for moderate George W Bush adviser John Bellinger to voice discomfort with President Trump's draft executive order on treaties (see related links).

But ‘moderate’ is rarely used to describe John Yoo, the Justice Department official who was convicted in Malaysia for drafting Bush's ‘torture memos,’ and once cancelled a backpacking trip to Europe because Spanish judge Balthasar Garzon was investigating him for war crimes.

Even Yoo has upbraided President Trump, in a recent newspaper article under the headline ‘Executive Power Run Amok.’

To Yoo, Trump’s order to build a Mexican border wall clearly strays beyond the limits of a US president’s powers. Under Article I of the Constitution, Yoo notes, 'only Congress can appropriate funds for the building of things like walls or parks or even walking paths.'


Podcast - John Yoo on Trump's executive orders


As for the travel ban, Yoo says that if courts are willing to scrutinize Trump’s motive and construe it as a Muslim ban, they might find that if violates both the First Amendment clause guaranteeing the free exercise of religion, and the First Amendment clause prohibiting the establishment of a state religion. ‘It’s hard to violate both of them at the same time but it can be done!’ he says.

Born in Seoul, Yoo knows he could have grown up under totalitarianism if not for President Harry Truman's willingness to wield power resolutely at the start of the Korean War. Now a contrarian law professor in the liberal bastion of Berkeley, Yoo is the author of Crisis and Command: The History of Executive Power from George Washington to George W. Bush. The book's thesis is that presidential power expands to meet crises. ‘War acts on executive power as an accelerant,’ says Yoo, ‘causing it to burn hotter, brighter, and swifter.’ When the crisis is authentic, that's a good thing.

‘‘Trump is claiming these broad powers for things which are not really emergencies.... There's no actual emergency about crime.... There's no immigration emergency…we're not in a war with these seven countries

John Yoo, Former Deputy Assistant US Attorney General

Virtually everyone agrees that Lincoln's use of executive power was justified by circumstances. Virtually everyone, including Yoo, agrees that Nixon's was not. Based on his first month, suspicions are mounting that Trump might fall into the Nixon category. Yoo differs from more progressive commentators in his belief that the War on Terror justified all George W. Bush's actions. Yoo is kinder to Andrew Jackson – US President from 1829 to 1837 – than many modern historians, though he is appropriately forthright in condemning Jackson's atrocities against Native Americans, and is uncomfortable with Jackson's pioneering American populism.

Like Jackson and Nixon in their different eras, Trump aims to expand presidential power by appealing to anti-establishment feelings tinged with nationalism, and populism. To use the terms that Trump has borrowed from Nixon, Trump claims to be the voice for a ‘silent majority’ of once-powerless voters. ‘That sort of appeal worries me,’ says Yoo.

But the heart of Yoo's critique is that Trump cries wolf: ‘Trump is claiming these broad powers for things which are not really emergencies.... There's no actual emergency about crime.... There's no immigration emergency.’ And, he adds, ‘we're not in a war with these seven countries,’ alluding to the seven Muslim nations targeted in Trump's travel ban. Moreover, even if such wars existed, Congress controls borders and states fight crime. Trump invokes ‘commander-in-chief powers for things that are not’ allocated by the Constitution to the commander-in-chief, complains Yoo. ‘Nixon did the same thing.’

Trump’s reference to ‘these so called judges’ puts some commentators in mind of Jackson's scornful dismissal of judicial power: ‘Well, [Chief Justice] John Marshall has made his decision, now let him enforce it.’ This was in response to the Supreme Court ruling in Worcester v. Georgia, which sought to limit state suppression of the Cherokee nation. The defiance of justice by Georgia, abetted by Jackson, led to the death of thousands of Native Americans, as they were driven to Oklahoma on the ‘Trail of Tears.’

If Jackson teaches that courts are a weak check on a populist president, the lesson of Nixon is that Congress is the strongest. Yoo finds encouragement in the feisty remarks recently made by a few Republican Senators in connection with Trump and Russia. Unfortunately, their actions have been less feisty. Republicans voted with the president 98 percent of the time in the first three weeks, which, if sustained, would be the highest rate of partisan support for a President since the Korean War. Congress may well be the only institution that has so far failed to perform its role in checking the president.

But, as Nixon learned, Congress is the only institution with the power to force an abusive president from office before the end of his or her term. The courts, the media, the public, the bureaucracy, the states, and the international community may push back all they like. But, as long as political incentives align Congress with the President, Trump isn't going anywhere.

Michael D Goldhaber is a freelance writer based in New York and was Senior International Correspondent at American Lawyer magazine for 12 years. He can be contacted at michael.goldhaber@gmail.com