John Yoo — then and now

The authoritarian lawyer will say anything in service of defense of George W. Bush's power.

Topics: Washington, D.C.,

(updated below)

The Wall St. Journal Editorial Page wanted someone to defend George Bush’s serial assertions of “Executive Privilege” to block investigations into his wrongdoing, and it turned, of course, to ex-Bush-DOJ-lawyer John Yoo, who is not only the most authoritarian but also the most partisan and intellectually dishonest lawyer in the country. Yoo is not only willing — but intensely eager — to defend literally anything George W. Bush does or would want to do, including — literally — torturing people and crushing the testicles of children if the Leader decreed that doing so was necessary to fight Terrorists. Yoo, of course, is a principal author of most of the radical executive power theories which have eroded our constitutional framework over the last six years.

In defending the President, Yoo’s Op-Ed yesterday touts the grave importance of Executive Privilege and makes all the claims one would expect. He stresses the “president’s right to keep internal executive discussions confidential”; proclaims that “without secrecy, the government can’t function”; compares Bush’s assertions to George Washington’s; and concludes that by asserting Executive Privilege (nowhere mentioned in the Constitution), Bush “has the Constitution on his side.”

But this isn’t the first Op-Ed Yoo has written on the topic of Executive Privilege for the Wall St. Journal. Back in 1998, when Bill Clinton was asserting the same privilege to resist Congressional demands that his closest aides testify about the President’s deliberations in responding to the various Lewinsky investigations, Yoo became one of the leading spokespeople denouncing the assertion of this privilege.

On March 2, 1998, Yoo wrote an Op-Ed (sub. req’d) for the WSJ Editorial Page (which back then also opposed the privilege only now to depict it as the anchor of a Free Government). In denouncing Clinton’s executive privilege assertions, Yoo began his op-ed this way:

James Madison wrote that a “popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both.”

That is the same Yoo who, under the Bush presidency, has become a virtually absolute defender of presidential secrecy. Yoo continued:

Reports that President Clinton may invoke executive privilege to block the investigation into the Monica Lewinsky affair have elements of both. . . .

Mindful of the extraordinary step of keeping information secret in a democratic government, presidents since Nixon have been wary of resorting to executive privilege. Presidents Ford, Carter and Bush formally raised the privilege only once each, and President Reagan three times in two full terms. In less than 1 1/2 terms, Mr. Clinton has claimed executive privilege at least six times, four times before Congress and twice in court. Like the boy crying wolf, Mr. Clinton’s regular use of the privilege threatens to dilute its effectiveness for future presidents on matters of true national importance . . . .

A decision to invoke executive privilege in this case would be yet another example of the Clinton administration’s failure to understand the distinction between the office of the president and the person who happens to be the president. In democracies, we distinguish between a public office and the person who holds that office; people for whom the office and the person are one and the same are called kings.

That is from the individual who, from his perch at the Bush DOJ, has done as much as any other single individual to wage war on our constitutional order and drag this country as close to monarchical rule as it has been at any other point in its history. And while Yoo defends Bush’s newly announced position that he has the power to block U.S. attorneys from prosecuting his subordinates, Yoo complained in 1998 that “Clinton is effectively the first President to formally assert a complete freedom from the criminal justice system solely because he is President.”

Ironically, in his WSJ Op-Ed yesterday, Yoo — while attempting to distinguish Clinton’s allegedly invalid assertions from Bush’s (naturally) valid ones — accuses those who defended Clinton back then but oppose Bush now of “blowing partisan smoke.” Yet Yoo never once mentions his own complete reversal in positions.

This is not the first time that Yoo has spouted fundamentally different “legal” views based on his political agenda. As Anonymous Liberal first noted last year, Yoo — in 2003, before it was known that Bush was eavesdropping outside of FISA — wrote an Op-Ed praising FISA as a constitutional and important safeguard which gave the President the eavesdropping tools he needed to fight the Terrorists while at the same time protecting our privacy.

But once it was revealed in 2005 that the President was violating FISA, Yoo suddenly reversed course, claiming that FISA was an unconstitutional infringement on the President’s power and that Bush’s violations of it were necessary to protect us all from being vaporized at the hands of the Terrorists. That behavior is quite similar to the right-wing fanatics who spent the 1990s vocally objecting to the “secret FISA court,” whereby Bill Clinton could eavesdrop on us by getting warrants from a secret court (!), only to then defend George Bush’s eavesdropping on us with no warrants or judicial oversight of any kind.

Like every good authoritarian, Yoo’s only real principle, his only True Conviction, is that the Leader is Good and Right. Everything else he says is but a tool used to achieve that end, and as is true for all authoritarians — indeed, it is one of their defining mental attributes — there is no bar against holding fundamentally opposite views simultaneously as long as each is used to strengthen the cause and defend the Leader. John Yoo is the embodiment of the authoritarian mind.

UPDATE: Several months after he boldly spoke out against Executive Privilege during the Lewinsky investigation, John Yoo returned to the Wall St. Journal Op-Ed page, on July 20, 1998, to argue that impeachment of Bill Clinton for defying a Subpoena issued by Ken Starr — something which had just been advocated by Orrin Hatch — “would stand on firm constitutional footing.”

Yoo specifically (and solemnly) warned that if Clinton decided to defy Starr’s Subpoena, Clinton “would be going beyond even Richard Nixon in abusing the presidency.” Yoo then praised Nixon because, unlike Clinton, Nixon “chose not to press claims of presidential power to such extremes.” Because if there is one thing which the principled, constitutional “scholar” John Yoo cannot abide, it is pressing claims of presidential power to the extreme.

Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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