The Trump administration has been consulting the former government lawyer who wrote the legal justification for waterboarding on how the president might try to rule by decree.
John Yoo told the Guardian he has been talking to White House officials about his view that a recent supreme court ruling on immigration would allow Trump to issue executive orders on whether to apply existing federal laws.
“If the court really believes what it just did, then it just handed President Trump a great deal of power, too,” Yoo, a professor at Berkeley Law, said.
“The supreme court has said President Obama could [choose not to] enforce immigration laws for about 2 million cases. And why can’t the Trump administration do something similar with immigration – create its own … program, but it could do it in areas beyond that, like healthcare, tax policy, criminal justice, inner city policy. I talked to them a fair amount about cities, because of the disorder.”
In a Fox News Sunday interview, Trump declared he would try to use that interpretation to try to force through decrees on healthcare, immigration and “various other plans” over the coming month. The White House consultations with Yoo were first reported by the Axios news website.
Constitutional scholars and human rights activists have also pointed to the deployment of paramilitary federal forces against protesters in Portland as a sign that Trump is ready to use this broad interpretation of presidential powers as a means to suppress basic constitutional rights.
“This is how it begins,” Laurence Tribe, a Harvard constitutional law professor, wrote on Twitter. “The dictatorial hunger for power is insatiable. If ever there was a time for peaceful civil disobedience, that time is upon us.”
Yoo became notorious for a legal memo he drafted in August 2002, when he was deputy assistant attorney general in the justice department’s office of legal counsel.
It stated: “Necessity or self-defense may justify interrogation methods that might violate” the criminal prohibition on torture.
Memos drafted by Yoo were used for justifying waterboarding and other forms of torture on terrorism suspects at CIA “black sites” around the world.
Asked if he now regretted his memos, Yoo replied: “I’m still not exactly sure about how far the CIA took its interrogation methods but I think if they stayed within the outlines of the legal memos, I think they weren’t violating American law.”
In a book titled Defender in Chief, due to be published next week, Yoo argues that Trump was fighting to restore the powers of the presidency, in a way that would have been approved by the framers of the US constitution.
“They wanted each branch to have certain constitutional weapons and then they wanted them to fight. And so they wanted the president to try to expand his powers but they expected also Congress to keep fighting with the President,” he said.
In a June article in the National Review, he wrote that a supreme court decision that blocked Trump’s attempt to repeal Barack Obama’s Deferred Action for Childhood Arrivals programme, known as Daca and established by executive order, meant Trump could do the same thing to achieve his policy goals.
Daca suspended deportations of undocumented migrants who arrived in the US as children. As an example of what Trump might achieve in the same way, Yoo suggested the president could declare a national right to carry firearms openly, in conflict with many state laws.
“He could declare that he would not enforce federal firearms laws,” Yoo wrote, “and that a new ‘Trump permit’ would free any holder of state and local gun-control restrictions.
“Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency,” he said. In a telephone interview, he added: “According to the supreme court, the president can now choose to under-enforce the law in certain areas and it can’t be undone by his successor unless that successor goes through this onerous thing called the Administrative Procedure Act, which usually takes one to two years.”
Constitutional scholars have rejected Yoo’s arguments as ignoring limits on the executive powers of the president imposed by the founders, who were determined to prevent the rise of a tyrant.
Tribe called Yoo’s interpretation of the Daca ruling “indefensible”.
He added: “I fear that this lawless administration will take full advantage of the fact that judicial wheels grind slowly and that it will be difficult to keep up with the many ways Trump, aided and abetted by Bill Barr as attorney general and Chad Wolf as acting head of homeland security, can usurp congressional powers and abridge fundamental rights in the immigration space in particular but also in matters of public health and safety.”
On the deployment of federal paramilitary units against Portland, Yoo said he did not know enough of the facts to deem whether it was an abuse of executive power.
“It has to be really reasonably related to protecting federal buildings,” he said. “If it’s just graffiti, that’s not enough. It really depends on what the facts are.”
Alka Pradhan, a defence counsel in the 9/11 terrorism cases against inmates in the Guantánamo Bay prison camp, said: “John Yoo’s so-called reasoning has always been based on ‘What can the president get away with?’ rather than ‘What is the purpose and letter of the law?’
“That is not legal reasoning, it’s inherently tyrannical and anti-democratic.”
Pradhan and other defence lawyers in the pre-trial hearings at the Guantánamo Bay military tribunal have argued that the use of torture against their clients, made possible by Yoo’s 2002 memo, invalidated much of the case against them.
“The fact that John Yoo is employed and free to opine on legal matters is an example of the culture of impunity in the United States,” she said.