What Is the Crisis? the Unitary Executive Heresy

In yesterday’s New York Times, John Yoo argued Forget Watergate; Think Iran-Contra.

In it, Yoo argues that “Unlike in the Watergate case, there is no evidence that the president ordered witnesses to lie, destroyed evidence or tried to block F.B.I. agents from doing their job. At least, no evidence yet.”  Thus, in his view, the President is unlikely to be found guilty of obstruction of justice,  and then he adds “… not just for lack of facts, but on constitutional grounds as well.”

It’s the constitutional grounds Yoo sketches that draw my attention here in part because — as even Yoo acknowledges — we don’t yet know the facts about whether there is a legal/criminal case to be made against Trump in the Comey matter.  But I think Yoo is wrong about the constitutional situation and he tries to slip by us a mistaken understanding of the Constitution.

First, let’s remember who John Yoo is.  The NYT op-ed identifies him thus: “John Yoo, a deputy assistant attorney general from 2001 to 2003, is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute.” His wikipedia biography adds this: “He is best known for his opinions concerning the Geneva Conventions that attempted to legitimize the War on Terror by the United States. He also authored the so-called Torture Memos, which concerned the use of what the Central Intelligence Agency called enhanced interrogation techniques including waterboarding.”

Although he is a very intelligent person, Yoo’s defense of torture makes me wary of anything he says.  He is also just one among many conservatives who assert the constitutional claim of the ‘unitary executive,’ and I believe it is important we not get suckered into accepting this view while we sort out the facts of the obstruction of justice matter.  Here’s what Yoo says:

Article II of the Constitution gives the president the duty to “take care that the laws be faithfully executed.” With this clause, the framers vested in the president the authority to oversee all federal law enforcement. As Alexander Hamilton observed in Federalist 70, “good government” requires “energy in the executive,” and a vigorous president must ensure “the steady administration of the laws.” According to this original constitutional design, President Trump may order the end of any investigation, even one into his own White House.

Whatever Trump may or may not have done, Yoo is saying, neither the FBI nor any other organization within the executive branch of the federal government can (should?) be used to build a case against him, because legally and properly (constitutionally) he can shut down such an investigation at will.  “Instead, Congress should turn to the powers designed by the framers for exactly such circumstances: the tools of funding, oversight and, as a last resort, impeachment.” It’s up to the Congress, not the FBI.

Put another way, Yoo is saying that the President in his activities as President is beyond the reach of law enforcement because he is the boss of everyone, no exceptions.  It isn’t really true, Yoo is saying, that “no president is beyond the reach of the law.”

Most of the argument about the unitary executive has played out over matters of the president’s power over foreign (especially) and domestic policy.  Here’s an overview of the issue from the Los Angeles Times in 2008.  Here’s another from The Atlantic in 2011. In 2007, Cass Sunstein wrote the following on the University of Chicago Law School Faculty blog:

Gerhard Casper, for example, has vigorously argued that the Constitution gives Congress broad authority to structure the executive branch, by insulating law implementation from complete presidential control. Others, including Steve Calabresi, have vigorously disagreed, contending that the document and its history clearly forbid Congress from intruding on the president’s authority to run the executive branch.

In essence, those who hold to this theory, hold that Congress cannot create in law any provision that gives true independence to any organization within the executive branch of the government.  Thus, no one in the Justice Department can appoint a special counsel who has the ability or independence to fully pursue the matter of the 2016 election Russian connection wherever it leads.

If you read Yoo’s op-ed, you’ll see he offers as support for the doctrine of the unitary executive only a single sentence from Article II of the Constitution and some snippets from Alexander Hamilton’s contributions to The Federalist.  Hamilton was the member of the constitutional convention most supportive of a strong executive.  He left the proceedings for several weeks when he didn’t get his way, returning only to sign the finished document.  The use Yoo makes of Hamilton’s remarks are strongly antithetical to the spirit of the U.S. Constitution, which everywhere seeks to divide and separate power to prevent tyrannical domination by any person or group.  The ‘unitary executive’ is a pernicious doctrine that seeks to make the Constitution say what Hamilton was unable to have it say in 1787.

I want to be clear: I do not think that obstruction of justice is at the heart of this crisis.  The crisis has much more to do with the general unfitness of Trump to be President, with a number of reckless, nation-threatening steps he has taken or tried to take, and with the continuing support of the man on the part of Republican party leaders in the face of this unfitness and various reckless actions.  I believe the proper remedies are more likely to be political than legal.

I agree with Yoo when he notes that impeachment does not require a showing of criminal behavior:

Contrary to common wisdom, impeachment does not require the president to commit a crime but instead refers to significant political mistakes or even incompetence. This was the framers’ intent — as Hamilton explained in Federalist 65, impeachment was to tackle “the misconduct of public men” or “the abuse or violation of some public trust.” Such offenses, he wrote, “are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

Nevertheless, with Thomas Friedman, I am inclined to think impeachment is unlikely given the Republican leadership’s perfidy in backing Trump.  “This G.O.P. is not going to impeach him; forget that fantasy. Either Democrats get a lever of power, or we’re stuck emailing each other “S.N.L.” skits.”  Rather, we have to look to the 2018 and 2020 elections, hoping no disaster befalls the republic before those elections.

Meanwhile let’s not swallow the unitary executive claim of Yoo, Calabresi and others that the president is, essentially, above the law.

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About Doug Bennett

Doug Bennett is Emeritus President and Professor of Politics at Earlham College. He has a wife, Ellen, and two sons, Tommy (born 1984) and Robbie (born 2003).
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