john Yoo - Defender in Chief ; Donald Trumps Fight for Presidential Power

The Constitution has become the sword for Democrats who want Donald Trump removed from office. In her December 5, 2019, speech formally calling for articles of impeachment, House Speaker Nancy Pelosi declared, The presidents actions have seriously violated the constitution, especially when he says and acts upon the belief Article 2 says I can do whatever I want. No. She portrayed Trumps actions as a fundamental threat. His wrongdoing strikes at the very heart of our constitution. A separation of powers, three co-equal branches, each a check and balance on the other. A republic, if we can keep it, said Benjamin Franklin.

Democratic critics have made violations of the Constitution a regular part of their litany attacking the Trump presidency for breaking the law. Hillary Clinton took to the airwaves in September 2019 to dismiss President Trump as an illegitimate president and a corrupt human tornado, and to declare that he knows he stole the 2016 election.

This book will explain why Trump has not become the Constitutions destroyer, but instead its most unlikely defender. Rather than a sword, the Constitution has become Trumps shield. Even though he had not had any previous government or military office or public policy experience, Trump has defended the constitutional text, structure, and design for an independent, vigorous executive. Trump has fought off the efforts of progressives who have wanted to revolutionize our constitutional order by vesting ever more power in a permanent bureaucracy of virtually limitless authority and to undermine institutions designed to channel and balance pure majority rule. Whether consciously or by following his own political incentives (which the Constitution itself creates, as we will see), Trump has become a far more stout defender of our original governing document than his critics have. Should he win a second term, Trumps exercise of presidential power to protect the nations security, slim the federal government, and appoint originalist judges may engineer a radical return of our constitutional system to its founding roots.

If friends had told me on January 21, 2017, that I would write a book on Donald Trump as a defender of the Constitution, I would have questioned their sanity. I had not voted for Trump in the 2016 primary or general elections. His many personal and professional flaws, including his bankruptcies, sexual scandals, crude and cruel language, repelled me. I saw him as a populist, even a demagogue, who had not prepared for the heavy responsibilities of the presidency. My study of the separation of powers, and my time in the three branches of government, led me to worry that Trump would test, evade, or even violate the Constitution. And let us just say that the University of California at Berkeley, my place of work for nearly three decades, did not foster an environment for Trump supporters.

Boy was I wrong. Trump campaigns like a populist but governs like a constitutional conservative. Throughout American history, presidents who believe they represent a popular movement have sought to overturn established constitutional practices. Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Franklin Roosevelt, and Ronald Reagan did not just win the presidency with broad support; they sparked revolutions in constitutional understandings. They aggressively wielded presidential power to advance their political agendas against a resistant establishment. But these greatest American presidents succeeded because their circumstances demanded the vigorous exercise of executive power. I worried that Trump would draw upon the great reservoir of presidential power during times that did not need it.

After Trump won the Republican primaries, he gave traditional Republicans a lot to like. Tax cuts and deregulation would jump-start the economy, which had recovered listlessly after the Great Recession. Appointing conservative judges would end the cultural wars in the courts and return social questions to the democratic, federal, political process. Recognizing the rising threat of China, he would rebuild a military hollowed out by years of sequesters and spending caps, one that had played defense on the new battlefields of cyber, drones, and space. But he also broke with Republican orthodoxies on generous immigration and international trade, where union-led Democrats had the longer record of hostility toward the free movement of people, goods, and capital. While I never signed the Never Trumper letters that freely circulated among former Bush national security officials, I could not bring myself to support the nominee of my party because I felt that his rashness could lead to a foreign policy disaster, even if he were to appoint a conservative Supreme Court or cut taxes.

In the first few months of the Trump presidency, I even wrote an op-ed in the New York Times to warn about executive power run amok. I have consistently defended the presidential power, such as the right to wage war unilaterally, of George W. Bush, in whose administration I served, but of Barack Obama and Bill Clinton too. But President Trumps first moves gave even me pause. During the campaign, he had displayed little knowledge of the Constitutionrecall that he thought the Constitution had 11 or 12 articles. It only has 7. He claimed the unilateral right to build a wall along the Mexican border without congressional funding or authorization. His first executive order banning travel from Muslim nations violated the Religion Clauses of the First Amendment. He threatened to terminate the North American Free Trade Agreement, which takes the form of a law passed by Congress rather than a treaty. Even Alexander Hamilton, our nations most ardent proponent of executive power, would be worried by now, I suggested.

Trump is disrupting the political system, perhaps for good. He has transformed presidential speeches, for example, from formal addresses into stream-of-consciousness rallies. He speaks directly to the American people through social media, randomly calls in to Fox News shows, and engages the press in off-the-cuff, spontaneous arguments. Trumps direct talk to the American people has banished the formal Oval Office address and press conference to the dustbin of historythankfully. Trump has brought the combative politics that he brandished on the campaign trail into the Oval Office. He boasted about the size of his inauguration crowds, refused to release his tax returns, attacked so-called federal judges who ruled against him, and labeled a range of news stories and media organizations as FAKE NEWS. He attacked opponents with a variety of nicknames, such as Pocahontas for Senator Elizabeth Warren, Crooked Hillary for Clinton, and Shifty Schiff for Representative Adam Schiff of California. He threatened to inflict fire and fury on Little Rocket Man North Korean leader Kim Jong Un. Trump seemed to delight in violating the rules of political correctness whenever he could.

We could explain much of Trumps political brashness and destructiveness by referring to the American peoples desire to disrupt the countrys ossified political system, which he called the Swamp. No doubt he had the good fortune in 2016 to run against Hillary Clinton. Despite her sterling rsum as first lady, senator, and secretary of state, Clinton campaigned terribly and made elemental mistakes, such as taking the Midwestern states of Pennsylvania, Michigan, and Wisconsin for granted. If Trump had a past dogged by scandal, ethical controversies, and shady business deals, he could have found no better opponent to run against than Hillary Clinton.