Defender in Chief: Donald Trump’s Fight for Presidential Power

The title of this publication gives the impression that John Yoo is a strong supporter of President Donald Trump, but the book must be judged by the content and analysis of individual chapters. The work reflects extensive research backed by documentary evidence. Once the reader gets to specific examples, Yoo’s position on presidential power becomes clear.

Yoo does not offer unqualified support for any and all presidential initiatives. As he notes at the end of Chapter 7, even though Congress at the urging of President Lyndon Johnson passed the Gulf of Tonkin Resolution, the Vietnam War “still provoked some of the most divisive politics in American history.”

In terms of personal positions regarding Trump, Yoo mentions in the Introduction that he 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.” He described Trump “as a populist even a demagogue, who had not prepared for the heavy responsibilities of the presidency.” As a result of Yoo’s experience in all three branches of government, he worried that Trump “would test, evade, or even violate the Constitution.”

But the next paragraph begins: “Boy was I wrong. Trump campaigns like a populist but governs like a constitutional conservative.” He did not agree with all Trump initiatives. Toward the end of the Introduction he said he did not “share Trump’s restrictionist approach to immigration or his suspicion of free trade and the American-led postwar order.” If Trump ended up “pulling back America’s global commitments, I would regret the moves and question whether they serve our national interests.” The Introduction concludes by predicting that Trump “could achieve his political agenda because he has returned to the Framers’ original vision of the presidency as an office of unity, vigor, and independence. In securing the benefits of an energetic executive for his successors, Trump may have done the nation his greatest service.”

In interpreting the scope of presidential power, Yoo depends heavily on the writings of Alexander Hamilton, particularly essays in the Federalist Papers. Selecting Hamilton as a primary and trusted source would lead any writer to promote broad and independent power for the President in both domestic and external affairs. Yoo does not mention Federalist No. 4 by John Jay, who issued a very clear warning about executive power: “It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting any thing by it.” Absolute monarchs, he said, “will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.” Executive leaders will often engage in wars “not sanctified by justice or the voice and interests of his people.” Jay was not speaking solely of British monarchs. He was warning about single executives in any political system, including in America.

On a number of pages, Yoo discusses the Neutrality Proclamation issued by President George Washington in 1793. He does not explain how this presidential initiative backfired when the administration began to prosecute individuals for violating the proclamation. Jurors announced they would acquit anyone brought into court because under the Constitution criminal law is made by both branches through the statutory process, not unilaterally by the President. Washington understood his error, stopped prosecutions, and came to Congress to seek authority for the Neutrality Act.

We have had many military operations of great cost to America, requiring checks by Congress and the judiciary. Yoo does not mention that when President John Adams engaged in certain military actions in the Quasi War against France, a unanimous Supreme Court in Little v. Barreme (1804) held that a proclamation by Adams exceeded the authority granted him by statute. Yoo refers to the Mexican-American War of 1846-1848 but does not explain that the House of Representatives in 1848 censured President James Polk for acting “unnecessarily and unconstitutionally” against Mexico.

Yoo discusses initiatives taken by President Abraham Lincoln at the start of the Civil War. Correctly, Yoo says that Lincoln “was no dictator.” Lincoln acted unilaterally but explained that his measures, “whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity; trusting, then as now, that Congress would readily ratify them.” Yoo does not mention that Lincoln acted independently because Congress was not in session. To make his actions legal, he understood he needed Congress to pass legislation, which Congress proceeded to debate and pass.

With regard to the Spanish-American War in 1898, Yoo explains that Congress did not declare war until after “the destruction of the U.S.S. Maine in Havana harbor.” That is correct, but it would have been helpful to explain how the ship was destroyed, killing two officers and 264 crew members. Although a naval board ruled out any cause of an internal explosion and concluded that the ship was destroyed by a mine placed below the ship, the board ignored the fact that other U.S. ships had experienced spontaneous combustion of coal in bunkers. The Navy had been previously warned that spontaneous coal fires could detonate nearby magazines. President William McKinley continued to insist that the Maine was destroyed by an exterior explosion. It is a good example how Presidents have regularly deceived Congress and the public about the need for war.

The book does not explain how often the Supreme Court expands presidential power in external affairs by relying on totally false positions. A good example is United States v. Curtiss-Wright (1936). Yoo discusses that case on page 57, stating that the court made clear the President “is the sole organ of the nation in its external relations.” However, all the Court had to do in that case was uphold a delegation of statutory authority to President Franklin D. Roosevelt. Yet the Court proceeded to add loads of extraneous material (dicta), even claiming that the President possesses “plenary and exclusive” authority in foreign affairs. That claim can be rejected simply by looking at the text of the Constitution. As for the President being “sole organ,” the Court relied on a speech by John Marshall in 1800 when he served in the House of Representatives. Marshall defended President John Adams for turning over to Great Britain a British subject charged with murder, but Marshall made no claim for plenary and exclusive presidential authority. Instead, Adams relied on explicit authority placed in the Jay Treaty. After scholars regularly explained defects in the sole-organ doctrine, the Supreme Court finally jettisoned it in the 2015 Zivotofsky case.

Yoo correctly states that even though Congress passed the Gulf of Tonkin Resolution to support military action in Vietnam, the war provoked great political opposition. Part of the criticism, not covered in the book, resulted from highly misleading statements by the Johnson administration, not only about the Gulf of Tonkin incident but the subsequent escalations of the war. All of which did great damage to Lyndon Johnson and the Democratic Party. Although the executive branch typically claims great expertise in matters of national security, the record is clear that various administrations have deceived members of Congress and the general public about the need for military action. Not mentioned in the book is the record of the Bush administration in 2002, offering six reasons why Saddam Hussein in Iraq possessed weapons of mass destruction. It was later learned that all six reasons were found to be empty. There is great danger in automatically assuming that statements by Presidents and senior executive officials about national security are reliable.

In the Introduction, Yoo says he has “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.” However, Bush sought and received statutory authority for military action against Iraq, a war that did great damage to the Middle East, to Bush, and the Republican Party. Obama (in Libya) and Clinton (in Bosnia and Kosovo) decided they could ignore the need for congressional authority and merely seek authority from the U.N. Security Council or NATO authorities. Such actions merit impeachment and removal.

Also in the Introduction, Yoo states that Trump “claimed the unilateral right to build a wall along the Mexican border without congressional funding or authorization.” On pages 117 and 121, he states that Congress rejected Trump’s $5.7 billion border wall request. However, the record shows that although Congress declined the full amount requested, it did appropriate $1.375 billion for wall construction. The Trump administration proceeded to take funds from the Defense Department, appropriated for other purposes, and transfer them as supplemental funds to build the wall. The dispute remained in the courts, with lower courts understanding that the spending power belongs to Congress, not the executive branch. On July 31, 2020, a 5-4 Supreme Court turned down a plea from opponents of the wall who had prevailed in district court and the Ninth Circuit. A year earlier, the Supreme Court had placed a stay on their request, allowing the administration to spend DOD funds on the wall. In its July 31 action, the unsigned statement consists of seven words: “The motion to lift stay is denied.” No argument, evidence, or reasoning.

What the Supreme Court appears to support is the following argument offered by President Trump and executive officials. If someone runs for President and during the campaign pledges to build a wall along the Mexican border, and that person is elected President, that individual has a right to request from Congress a specific sum to satisfy the campaign promise. If Congress falls short of that request, the President has the right to take funds appropriated to other departments (such as the Pentagon) and use that money to fulfill a campaign promise. In short, the power of the purse shifts from Congress to the President. Is that the message from the Supreme Court? I think any President who conducts himself in that fashion deserves impeachment and removal so that no future President repeats that unconstitutional conduct.

Yoo’s last chapter focuses on efforts by Democrats to impeach and remove Trump for withholding funds from Ukraine unless it agreed to find evidence damaging to the presidential aspirations of Joe Biden in November 2020. I agree with Yoo’s conclusion that the “haste” by which the House of Representatives pursued impeachment “doomed it.” He states that both Congress and the Trump administration “staked out extreme constitutional positions from the start.” He concludes that “the type of conduct at issue involving President Trump and Ukraine could provide the grounds for impeachment.” He acknowledges that the Framers “openly worried about a president who might use his foreign affairs powers for personal or political gain.” Yoo does not argue that Trump “deserved no blame for the Ukraine affair or that he might have had ulterior political motives in mind.” Unfortunately, heightened partisanship in the impeachment process prevented the two parties from agreeing that a President may not withhold funds from foreign governments in order to improve his chance of reelection.

Louis Fisher is Visiting Scholar at the William and Mary Law School. He served four decades with the Library of Congress as Senior Specialist in Separation of Powers with Congressional Research Service (1970-2006) and Specialist in Constitutional Law at the Law Library of Congress (2006-2010). Many of his articles and congressional testimony are placed on his personal webpage, http://www.loufisher.org.