Showdown: John Yoo on Trump, Kavanaugh, and Constitutional Crisis

By Glen Martin

Last week, as the Senate Democrats prepared to grill Trump’s Supreme Court nominee Brett Kavanaugh, Berkeley Law Professor John Yoo spoke to the Chronicle’s Joe Garofoli about what to expect from the proceedings. As Garofoli pointed out, the ultra-conservative Yoo, who is perhaps best known as the Bush administration attorney who authored the infamous “Torture Memos,” brought a unique perspective to the proceedings, being both a personal friend of Kavanaugh’s and an avowed opponent of Donald Trump.

With the hearings now over and Kavanaugh’s confirmation all but certain, we wanted to follow up with Yoo on a bombshell hypothetical he dropped with Garofoli; namely, in the not unlikely case that special investigator Robert Mueller subpoenaed Trump and the Supreme Court held that the president must comply, Yoo wondered what if “…Trump says, ‘Go screw yourselves. I’m not going to do it’?”

“Presidents largely have complied with court orders,” said Yoo. “To do otherwise would be tantamount to putting personal interests over the long-term stability of the constitutional
system.”

As Yoo explained to California, Trump could claim immunity from indictment. “If that happens, though, Mueller could say that he simply wants to obtain evidence, to question Trump as a witness, not because he’s looking to indict,” Yoo said. “The Supreme Court upheld [evidence seeking] in U.S. v. Nixon, ordering Richard Nixon to hand over tapes to the Special Prosecutor [during Watergate].”

Of course, in U.S. v Nixon, the president complied with the court’s order to turn over evidence—the notorious Watergate tapes. There are no guarantees Trump would act in a similar fashion. Indeed, the only thing predictable about the sitting president is his unpredictability—and his solipsism. It’s well within the realm of possibility that he might ignore a SCOTUS order. And if that happens, the court has no practical means of physically enforcing its decision. (It does have the U.S. Marshals Service at its disposal, but it’s difficult to imagine federal marshals being dispatched to the White House to take the president into custody.)

“As Hamilton noted, the courts have will, but not force,” said Yoo. “There’s only been one time in the history of the United States that a president defied an order from the Supreme Court. That was Ex Parte Merryman , at the beginning of the Civil War. Lincoln refused an order from the court to release a Confederate prisoner because the military had exceeded its constitutional authority.”

Lincoln ignored the order, but the Union was then engaged in a war for survival, and mere constitutional issues paled in comparison. Similar defiance by Trump, however, would likely throw the nation into a constitutional and civil crisis.

“Outside of the emergency of the Civil War, presidents largely have complied with court orders,” said Yoo. “To do otherwise would be tantamount to putting personal interests over the long-term stability of the constitutional system.” For all his faults, Nixon did not do that. Trump, Yoo fears, might.

“At that point it would be a political matter, not a judicial one,” Yoo said. “The 25 th Amendment could be invoked [i.e., he could be found ‘unfit’ for office]. Or more likely, he’d be impeached [by the House of Representatives]. Even if he wasn’t [turned out of office by the Senate], he’d be unlikely to win re-election in 2020, and he’d be liable for prosecution when he left office. Nixon understood that, which is why he handed over the tapes. And Bill Clinton understood the same thing, which is why he testified [before a grand jury during investigations by special prosecutor Kenneth Starr over allegations of lying under oath and obstruction of justice].”

Justices have not always been predictable in how they would rule, and Kavanaugh may be no exception. President Trump’s quixotic nature, however, makes him a truly exceptional Chief Executive.

Opponents to Kavanaugh’s nomination, however, worry about the other possibility: The court rules that executive privilege trumps, so to speak, a subpoena from Mueller, effectively creating an imperial presidency. Yoo thinks those concerns are overblown. While it’s true that Kavanaugh wrote opinions in 1998 and 2009 stating that a president shouldn’t be indicted or even investigated for criminal malfeasance, he was a prominent, and, by some accounts, especially zealous, member of special prosecutor Starr’s team during the Clinton investigations, one who advocated fiercely for forcing the president to testify.

Some analysts, including author, political commentator, and Cal alum David Brock, think those divergent opinions merely illustrate Kavanaugh’s partisanship. Brock, author of Blinded by the Right, was once in the same political camp as Kavanaugh but is now a pro-Clinton Democrat.

“I’ve known Kavanaugh for years,” Brock wrote in an op-ed for NBC News, “and I’ll leave it to all the lawyers to parse [his] views on everything from privacy rights to gun rights. But I can promise you that any pretense of simply being a fair arbiter of the constitutionality of any policy regardless of politics is a pretense.”

In a scathing editorial, The New York Times also questioned Kavanaugh’s truthfulness and insisted his ideological agenda was clear: “for starters, a well-established hostility to women’s reproductive rights and a stunningly expansive view of presidential power and impunity.”

Yoo still maintains that the body of Kavanaugh’s work indicates strong support for limiting the power of the presidency—or at least assuring it remains co-equal with the judiciary and Congress.

Justices have not always been predictable in how they would rule, and Kavanaugh may be no exception.

President Trump’s quixotic nature, however, makes him a truly exceptional Chief Executive, one whose actions are unpredictable even to his own advisors. The one dependable element of his nature is an unwillingness to cede power or even play by the rules, and that characteristic may bode chaos, no matter who accedes to the bench of the Supreme Court.

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