Episode 29 -- Trump & the Law of Presidential Power: Prof. John Yoo, U.C. Berkeley School of Law
Episode 29 -- Trump & the Law of Presidential Power: Prof. John Yoo, U.C. Berkeley School of Law  
Podcast: The Republican Professor
Published On: Thu Mar 24 2022
Description: Join our conversation with the University of California at Berkeley's Emanuel S. Heller Professor of Law John Yoo, author of the very carefully argued "Defender in Chief: President Trump's Fight for Presidential Power." John has been teaching Law at Berkeley for nearly 30 years ! Could President Trump legitimately have fired Mueller ? Our guest today says, yes. What about other issues related to presidential power ? Was the 45th president's vigorous (perhaps pre-theoretical or unconscious) defense of presidential power legitimate from the point of view of Article II of the U.S. Constitution? John Yoo says, to a large extent, yes. John did not vote for Trump initially, but he nevertheless defends the "unitary executive" theory of the US Constitution, which simply says that the best explanation of the data of the text and history of the Constitution's creation of the presidency is that there is one, and should only be one person in charge of the executive branch. The Executive Branch was not designed to be run by bureaucrats who are unaccountable to the people in elections. It does not matter if those bureaucrats are "experts." Democratically unaccountable expertise is still democratically unaccountable. Article II's first sentence is as follows : "The executive power shall be vested in a president of the United States." The executive power is not defined or "herein granted", as the text of Article I does with the legislative power. It is vested in one person, elected by the whole nation, the president. That person alone is accountable to the American people in elections for the actions of the Executive Branch of the US government. And therefore, that one person should have control of the branch. That's the original, wise design. So what Professor Yoo does here is take that as a good starting point for reflecting upon Trump's defense of presidential power and his official actions as president (not necessarily his use of Twitter). Grounded in a careful reading of Article II and the original design of the Presidency, as well as its history and tradition, John reflects on contemporary events related to presidential power. Such topics include law enforcement, immigration & the wall, war-fighting and the conduct of war, Trump's approach to executive branch agency rule-making, his demand for the loyalty of the Executive Branch administrative state (the bureaucracy, what some call 'the Deep State"). Yoo also has chapters on the Electoral College and Trump's prerogative to shape the federal judiciary. For John, and the proper Constitutional check on the presidency is Congress and public opinion, not the Executive Branch turned on itself. It's not surprising that those are the levers that went into action--that's the proper design of the US Constitution. So could Trump have fired Mueller ? Yes, because Mueller was in the Executive Branch, performing executive functions, but only the President has a duty to "Take Care that the Laws be Faithfully Executed." There is no rival, junior varsity chief law enforcement officer of the United States. John gives us a glance as to what it's like teaching in Berkeley, what it's like to live there, whether and to what extent there is grade inflation there and at the Harvard he attended before. And how ought we understand some issues related to January 6th of last year ? Join our warm conversation here. Professor Yoo's book is available for purchase on the Nile, the Ganges, the Mississippi, or whatever other great river from which one can purchase books, e.g., here : https://www.amazon.com/Defender-Chief-Donald-Trumps-Constitution/dp/1250269571/ref=sr_1_1?crid=28CNPDQK32LUZ&keywords=john+yoo&qid=1647988347&sprefix=john+yoo%2Caps%2C141&sr=8-1 Be sure to subscribe to our Youtube channel for more episodes in the future. The Republican Professor is a pro-Article-II, pro-correctly-understanding-Presidential-power podcast . Therefore, welcome John Yoo !