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Former Deputy Assistant AG Offers Perspective On Unitary Executive Theory


It has been a day of confrontation between the two ends of Pennsylvania Avenue. The House Judiciary Committee wants the totally unredacted Mueller report. President Trump has asserted executive privilege over the redactions. And all of that comes on the heels of the president also saying he does not plan to be cooperating with any congressional investigations going forward. So can the president do all of this?

To sort through that question, we're joined now by John Yoo. He was a deputy assistant attorney general under President George W. Bush, and he's thought a lot about the powers of the executive branch. Welcome to the studio.

JOHN YOO: Oh, it's great to be here.

CHANG: So as an official in the Justice Department, you were known for a pretty expansive view of executive power. You were the one who wrote the now-infamous torture memo which laid out why the executive branch could use enhanced interrogation techniques. There is an interpretation of executive power that you support. It's often called the unitary executive theory. Can you just briefly tell us what that is?

YOO: Yes. This is an idea that goes back to Alexander Hamilton and George Washington through to Abraham Lincoln to FDR and our modern presidents. The idea is that the Constitution - when it grants the president the executive power, it grants him a reservoir of executive power that's not specifically set out in the Constitution that allows him to act as leader of the executive branch to enforce the laws and to defend the country in times of crisis and emergency.

CHANG: OK, so with that theory in mind, in your view, can the president refuse to cooperate with Congress as he's threatening now, Congress being the coequal branch of government that is tasked with providing oversight?

YOO: Well, you have the conflict of two direct constitutional duties. Congress has the power, of course, to conduct oversight, to see how the Justice Department is doing its job. On the other hand, as the head of the executive branch, the president has the power of executive privilege to have confidential discussions with his or her advisers and to keep secret certain kinds of information that would harm the public if it were actually released.

Usually when those two interests come into conflict, the two branches work it out. The thing that's unusual about this incident and about Trump and Nadler and Pelosi is that they've already rushed to the constitutional battlefronts. They are not engaging in compromise or accommodation. They've already raised, ratcheted up, escalated. The fight usually takes, like, a year first to get to this point. And they seem to be daring each other to push their powers to the furthest.

CHANG: All right, then let's assume that all the parties involved here continue not to work it out. Who wins this battle, in your view, constitutionally?

YOO: In the end, Congress gets the information it wants because it has the power of the purse. If they wanted to get this information, all they got to do is say we're going to shut down the government again during President Trump's re-election year, and maybe economic growth doesn't work out the way the president would like. But it could take a long time. Maybe, ultimately, it goes to court.

CHANG: If this does end up in court, who should win that constitutional battle in your view?

YOO: So if it was my personal, scholarly view as opposed to predicting what the courts would do...

CHANG: Sure.

YOO: ...I would think the president could withhold the information, and the courts will say Congress has all kinds of tools to sort of pry loose what it wants from the president. But the courts are not going to side with either branch. We're going to let them fight it out, which usually means the president, as a matter of constitutional law, can win. But in a matter of bottom line practical politics, Congress usually gets the information in the end.

CHANG: Well, it sounds like you're proposing a political solution to what's a constitutional fight.

YOO: You're sharing the same insight that the framers held. They thought each branch would have these constitutional powers at their disposal. Congress' are funding, oversight, legislation and what we have talked about, impeachment. And they are supposed to use those tools to constantly fight the executive branch as it uses its own constitutional powers. And the framers thought that constant grinding and fighting would produce what we all want, which is liberty for the American people and a responsible government. So the founders would have thought, yes, great, use the funding power; cut off funds to the executive branch in order to pry loose the information; even threaten impeachment if you need to get the information. Those would all have been valid in the framers' views.

CHANG: Rather than duking it out in court with arguments about the Constitution.

YOO: Yeah. That's a great point. I think, actually, the framers would have been rather surprised to see all these issues go to the Supreme Court. But we live in this era now where everyone wants the Supreme Court to settle these questions. Of course they would have expected the president and Congress - what their phrase is - "ambition was supposed to counteract ambition." That's a direct quote from The Federalist Papers. And they wanted each branch to use those powers to constantly fight against each other. And the result would be hopefully an accommodation that's good for the American people.

CHANG: Now, even someone like you who has supported a wide view of executive power - even you have written that you believe President Trump has transgressed the proper bounds of executive authority; he has already in his term so far. Tell me why.

YOO: I don't think the president can say, I refuse on behalf of the entire executive branch to provide any information to Congress of any kind of any nature of all subjects. You know, the president can preserve certain kinds of information - executive privilege discussion just between him and his advisers, grand jury information, classified information. But the Mueller report and the files underneath it have a lot of information that don't fall into those categories. And by tradition and practice and constitutional law, the presidents have traditionally recognized they have to hand over that information as part of Congress' job to conduct oversight.

CHANG: When you look at how presidencies unfold, you can see how every president's interpretation of executive power shapes the powers available to the next president. So when you look at the way President Trump is responding to these challenges to his power, how do you think this administration is shaping the executive branch for the next administration?

YOO: Well, the one thing I worry about as a supporter of presidential power is that presidential power expands and contracts depending on the circumstances - that it survives when it's used well because we really are in a crisis and emergency. The thing that worries me about the Trump administration is that every day seems like a crisis. Every day you see the invocation of really the broad extensive presidential power which we only see at rare moments in our history.

The - actually Trump is probably second only maybe to Lincoln in that. Lincoln really - but he had to because of the crisis of the Civil War. You know, we're not living through a civil war now. And so I worry sometimes that by overextending presidential power at times that don't justify it, you risk falling into becoming more like a Nixon rather than becoming like a Lincoln.

CHANG: You think President Trump now is becoming more like Nixon.

YOO: It's more that I worry that if you keep invoking the powers all the time when the circumstances don't justify it - that's what Nixon did. That's what some other, I think, presidents who have failed have done. I - you know, time will tell. We're still only halfway through his term, so things might change. But I think he could get his way without having to make these kinds of broad claims of presidential power, particularly, for example, here with the Mueller report and the investigation.

CHANG: John Yoo was deputy assistant attorney general under President Bush. He now teaches law at UC Berkeley. His recent article on the battle over the Mueller report is in The Atlantic. Thanks very much for coming into the studio today.

YOO: Thanks, Ailsa. Transcript provided by NPR, Copyright NPR.

Corrected: May 8, 2019 at 12:00 AM EDT
In an earlier headline, John Yoo was referred to as a former assistant attorney general. He is a former deputy assistant attorney general.