In hindsight, it’s amazing that John Yoo and Donald Trump didn’t find each other sooner.
Together, they are claiming—based on an absurd “legal” argument that has already taken hold in the White Supremacist Party—vast, dictatorial powers for the Presidency that will result in an avalanche of extralegal executive orders from now until Election Day that will fuck up this country for years to come.
John Yoo is an attorney who has aggressively laid claim to being the world’s leading expert in an area of the law that no adjudicator with any morality would even conceive of owning—using the law to justify monstrous acts that would be unthinkable in any civilized society.
It was John Yoo who, as a lawyer in George W. Bush’s Justice Department, argued that the President had the power to monitor the communications of U.S. citizens on U.S. soil without a warrant. But Yoo is most infamous for authoring a legal finding that justified the torture of prisoners in Afghanistan and at Guantanamo Bay by the CIA. Yoo based his memo on an 1873 Supreme Court ruling that Modoc Indians could legally be shot on sight. He claimed that the “president’s war-making authority was so broad that he had the constitutional power to order a village to me ‘massacred.’” Asked in 2005 “if the President deems that he’s got to torture somebody, including crushing the testicles of the person’s child, there is now law that can stop him?’”, Yoo answered “I think it depends on why the President thinks he needs to do that.” Clearly, Yoo was born too late to fill his dream job—as the head of Hitler’s National Socialist League of German Jurists.
Colin Powell denounced Yoo’s findings as being counter to the Geneva Conventions. The U.S. Navy general counsel called Yoo’s memo “catastrophically poor legal reasoning.” The Justice Department’s Office of Legal Counsel declared Yoo’s conclusions legally unsound, and its Office of Professional Responsibility found that Yoo had “committed professional misconduct.” Journalist Glenn Greenwald and the dean of the University of California law school argued that Yoo should be indicted for war crimes, and at least two European countries seriously considered doing so.
As a candidate in 2016, Donald Trump took a much more favorable view of Yoo’s handiwork, declaring that as President he would “bring back waterboarding and a hell of a lot worse.” John Yoom clearly, is Donald Trump’s kind of Presidential lawyer.
Nightmarish stuff, but what has this got to do with Trump’s executive orders? If we go back a couple of months, the link between Yoo and Trump becomes clear.
On June 18, the Supreme Court ruled that Trump had acted illegally when he repealed Obama’s executive order creating the DACA program. It was a very narrowly defined decision. The Supreme Court did not rule of the constitutionality of Obama’s executive order. It did not decide that Trump lacked the power to repeal it. It blocked Trump’s repeal on the grounds that Trump’s Department of Homeland Security failed to “provide a reasoned explanation for its action” or address “the hardship to DACA recipients.” It didn’t say that Trump couldn’t repeal Obama’s order, it said that Trump didn’t follow the right process in doing so.
John Yoo, who is now a professor at the same University of California law school that once called him a war criminal, saw something in the decision that appealed to his love for unlimited presidential power
On July 19, Axios reported that an upcoming National Review article by John Yoo had been spotted on Trump’s Oval Office desk. In the article, Yoo argued that the Supreme Court’s DACA ruling “makes it easy for presidents to violate the law.” You can imagine Trump’s response to this claim. Yoo confirmed to Axios that he had met virtually with White House officials about his theory, and Axios reported that Trump had been sharing the article with key advisers.
That same day, Trump told Chris Wallace in a Fox News interview that the Supreme Court had recently given him extended powers and that he would exercise those powers to issue decrees on healthcare, immigration, and “various other plans.” Trump told Wallace that “we’re signing a health-care plan within two weeks.”
On June 20, Yoo explained his theory further to the Guardian: “If the court really believes what it just did, then it just handed President Trump a great deal of power, too. The Supreme Court has said President Obama could [choose not to] enforce immigration laws for about two million cases. And why can’t the Trump administration do something similar with immigration—create its own…program, but it could do it in areas beyond that, like healthcare, criminal justice, inner city policy. I talked to them a fair amount about cities, because of the disorder.”
On June 22, the conservative National Review finally published the article that had made such an enormous impact in the White House. In it, Yoo laid out his theory that that the Supreme Court’s DACA decision “makes it easy for presidents to violate the law, but reversing such violations difficult—especially for their successors” and detailed a frightening example of the enormous power that, in his view, the Supreme Court had just granted to the President. “Suppose President Donald Trump decided to create a nationwide right to carry guns openly,” Yoo wrote. “He could declare that he would not enforce federal fireams laws, and that a new ‘Trump permit’ would free any holder of state and local gun-control restrictions. Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency. And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two.”
Consistent with their conversations with Yoo about “disorder” in American cities, on July 4th Trump deployed federal agents to Portland, Oregon, supposedly to protect federal properties, a move that ignited a national debate on whether such an executive order was legal.
Four days later, on July 8, the Justice Department announced the launch of Operation Legend, under which federal agents were sent to Kansas City, Missouri, to crack down on protests there after the murder of George Floyd.
On July 22, Trump announced that Operation Legend was being expanded to Albuquerque, Chicago, Baltimore, and Philadelphia.
On July 27, White Supremacist Party Senate majority leader Mitch McConnell unveiled his caucus’ plan for the next round of coronavirus relief legislation. Yoo confirmed to Axios that he had met virtually with White House officials about his theory. House Democrats had passed their second coronavirus relief bill on May 15, but McConnell waited until a week before extra unemployments benefits and moratoriums on rent and evictions were set to expire to unveil his bill. To make matters worse for McConnell and the White House, it became immediately clear that at least half of the White Supremacist Party Senators were opposed to the plan, which meant that McConnell could not pass a bill without the support of Democratic senators. This put Pelosi and Schumer in the driver’s seat as negotiations on a compromise bill began. Treasury Secretary Mnuchin had brokered the first coronavirus relief bill with Pelosi and Schumer last spring, but many folks in the Trump administration felt that Pelosi had gotten the better of him, so White House chief of staff Mark Meadows, who was certainly aware of the new Yoo theory of expanded Presidential power via executive orders, was added to the negotiation team. Little progress was made during the next two weeks, primarily due to Meadow’s refusal to compromise, and Trump began to threaten to solve the impasse by issuing executive orders.
On August 6, Trump signed an executive order calling on federal agencies to purchase “essential drugs” and medical supplies made in the U.S., rather than from the foreign companies that currently provide most of those.
On August 7, negotiations on the second coronavirus relief bill collapse.
The very next day, Trump surfaced with four completed executive orders related to coronavirus relief and signed them. The orders deferred payroll taxes for Americans earning less than $100,000 a year (those taxes fund Social Security and Medicaid), implemented a moratorium on evictions and gave financial assistance to renters, added $400 a week in extra unemployment benefits through the end of 2020 (IF financially strapped states can somehow cover 25% of the cost), and postponed student loan interest payments through the end of 2020.
Later the same day, Trump tweeted that he was “pursuing a major executive order requiring health insurance companies to cover all pre-existing conditions”—even though, thanks to Obamacare, this has been the law of the land for ten years. The Trump campaign called this “huge news.”
Yesterday, White Supremacist Party Senator Ben Sasse of Nebraska slams Trump’s coronavirus-aid executive, saying that “The pen-and-phone theory of executive lawmaking is unconstitutional slop.”
In an interview this morning with CNN, White House economic advisor Kudlow admitted that he regrets saying just a few days ago that unemployment benefits could only be extended by Congress. And Treasury Secretary told Fox News today that Trump’s executive orders on coronavirus aid were cleared by the Justice Department’s Office of Legal Counsel, and said that Democrats are going to “have a lot of explaining to do” if they challenge them in court.
Donald Trump has never shown any inclination to do the hard work of negotiating with Democrats and his own party on legislation. The “master of the deal” has turned out to be the worst deal maker in American presidential history. Trump has utterly rejected the very concept, much less the crystal-clear constitutional provisions for, Congressional oversight of the Executive branch. As he has repeatedly shown—through his illegal travel ban, his elimination of government regulations, his firings of multiple inspectors general, his refusal to allow any members of his administration to testify before Congress—his idea of the way America should work is as a fascist state where he makes the law and spends the taxpayers’ money, regardless of what the Constitution and over two hundred years of legal precedent say. And Congress’ failure to impeach Trump, thanks to the unwillingness of the White Supremacist Party to live up to their oaths to uphold the Constitution, left him with no further impediments to realize his authoritarian vision.
In the tortured legalistic spins of John Yoo, Trump has found not only the slim legal justification he didn’t even really need to move forward, but the realization that he can spend the 80-plus days between now and the election trying to win votes by ignoring Congress and issuing a blizzard of delusional (but real, in the sense that they will preoccupy the country and derail real efforts to fix our problems) executive orders on the coronavirus, guns, healthcare, immigration and god knows what else.
Actually, we know “what else” will include. We will surely see, before November 3, executive orders from an American President explicitly interfering with the election itself. Trump’s only talent is creating chaos, and after November 3, 2020 the last remaining pillars of a representational democracy in this country—the belief of most Americans that our elections are legitimate and the quick and peaceful transference of power following those elections—will be a dim memory.
