I don’t know if this is a weird attempt to absolve himself, a bizarre case of the pot calling the kettle black, or an earnest warning, but John Yoo, the principal author of the infamous Bush/Cheney torture memos, fears that Donald Trump is abusing his executive power.
Yoo, who is now a law professor at UC Berkeley, is one of the former Department of Justice attorneys who bent the law to justify waterboarding, wall-slamming, and other so-called “enhanced interrogation techniques” used by the CIA against al Qaeda prisoners during the Bush administration. In 2010, the DOJ’s internal ethics department released a 260-page report finding that Yoo and his colleague had committed “professional misconduct” and recommended further disciplinary action. However, after a senior DOJ attorney rejected the report findings, the recommendations were ignored and Yoo escaped punishment.
In a New York Times Op-Ed, Yoo admitted, “But even I have grave concerns about Mr. Trump’s uses of presidential power.”
He cited Trump’s firing of acting Attorney General Sally Yates, his threat to pull out of NAFTA, and his proposal to have Mexico pay for a border wall as evidence that Trump repeatedly crosses the limits of constitutional power:
“Take his order to build a wall along the border with Mexico, and his suggestion that he will tax Mexican imports or currency transfers to pay for it. The president has no constitutional authority over border control, which the Supreme Court has long found rests in the hands of Congress. Under Article I of the Constitution, only Congress can fund the construction of a wall, a fence or even a walking path along the border. And the president cannot slap a tax or tariff on Mexican imports without Congress.”
But within the op-ed, Yoo also creates a road map for Trump that outlines what Trump needs to do to wield his power more effectively. Of the disastrous and potentially unlawful immigration ban, Yoo argues that the main flaw was its execution. “Had Mr. Trump taken advantage of the resources of the executive branch as a whole, not just a few White House advisers,” Yoo writes, “he would not have rushed out an ill-conceived policy made vulnerable to judicial challenge.”
It’s mildly terrifying to imagine what Trump would do if he had as masterful a grasp of the constitution as Yoo. But since Trump prefers Pixar movies and yelling at Don Lemon through a TV screen over reading, it seems unlikely that he will ever become a disciple of the Constitution.