John Yoo, former Bush administration lawyer behind the 2002 memos justifying "enhanced interrogation," warns the DOJ’s Trump prosecutions—like Manhattan’s Stormy Daniels testimony—violate due process norms, echoing Soviet-era tactics. Garland’s politicized leadership and special counsels (e.g., Jack Smith) risk weaponizing justice, while Biden’s Supreme Court term limits proposal mirrors FDR’s failed court-packing. Yoo argues the DOJ’s partisan approach undermines legal credibility, comparing it to past abuses under Nixon and Starr, and urges accountability to prevent systemic erosion of trust. [Automatically generated summary]
Hey everyone, it's Andrew Claven with this week's interview with the great attorney, John Yu.
You probably remember John, if you are old enough, from his appearance on the Daily Show after he gave George W. Bush memos saying that it was legal to have enhanced interrogation against terrorists.
I have to be honest with you and say it was a moral controversy.
I never understood why would you not have enhanced interrogation against terrorists, but Jon Stewart did his usual kind of superior face making and John Yoo took him to pieces.
It was a wonder to behold.
However, he is also the Emmanuel Heller Professor of Law at the University of California at Berkeley, a non-resident senior fellow at the American Enterprise Institute.
And also, you're not only at the Hoover Institution, John.
First of all, John, hello.
It's good to see you.
Thank you for coming on.
Oh, sure.
And in fact, you may not remember the first time we met, but we were on a cruise ship doing a speaker's tour for National Review.
And we were sitting together and you said something along the lines of, we haven't met before, but I really respect the work you did for the Bush administration, working on interrogation and terrorism.
And this is around, I think, 2006 or 2007.
So I think I started patting you down for a microphone.
I was like, who's the camera?
Where's the man?
No, I would get into these arguments, especially with Catholic friends who thought, no, enhanced interrogation is torture.
And I would think, I don't know, man, if they find out what the terrorists are doing, I'm all for it, but I'm a simple man.
Before we get started on what I want to talk to you about is lawfare, and I want to talk to you about what's happening over the Department of Justice.
But before we get to that, you are now doing something with the new Austin University.
Special Counsel and Political Prosecutions00:15:44
Is that right?
Not the new Austin University, the very old Austin University, but one under competition with the new Austin University.
So I think you've seen these, I think, schools about civics and great books sprouting up, Florida, North Carolina.
So the University of Texas at Austin last year created a whole new college within UT Austin called the School of Civic Leadership that's going to teach the classics, teach great books, teach civics, teach the Constitution.
So I think that's why they're having me.
And I'm going to spend a semester there this upcoming year.
And they're going to have a think tank called Civitas, which is going to try to play a role in public policy.
So I'm really excited about it, actually.
And you get to Texas and they say, what do you want to do?
So I give some ideas and they say, well, can't you do twice as that, twice as much?
Why does that have to be so small?
What's wrong with you?
It's Texas.
Everything is big in Texas.
I know in California, it's always like, you can't do that.
There's too many regulations to do that.
Actually, though, it's very encouraging to hear they're doing that.
A little competition is a good thing.
It's nice to hear them taking care of the basics.
The other day, Merrick Garland, the Attorney General, gave a speech in which he declared that law has to be above politics and never be touched by politics, which I sat watching with my jaw on my chest because it seems to me that the Department of Justice has become a corrupt organ of the administration.
I guess I want to ask you, am I right about this?
Does it look that way to you too?
And is that abnormal?
Well, first, whenever someone says, I'm not being political, I'm not being political, that is probably a pretty good sign they're being political.
Because if you're a judge or a prosecutor, you shouldn't have to tell people this over and over again.
On the other hand, I don't know if I would say corrupt, although corrupt you may mean in a different way than I mean it.
I have lost a lot of faith in the Justice Department this last four years.
I worked at the Justice Department.
I had a lot of respect for the civil servants there.
But I think this quest to get Trump has so overwhelmed their good judgment that they ended up tossing aside a lot of the restraints, important restraints on prosecution that we've had for the history of law enforcement in this country.
It saddens me to say that.
And one reason why is because actually there's a great liberal attorney general, Robert Jackson, who was FDR's Attorney General and later became a great Supreme Court justice.
He said the prosecutor may be the most powerful job in the United States because you could destroy somebody without ever appearing in court.
You just leak someone's being investigated.
You just undertake a search of someone's house.
Never make it to court.
You never actually even charged them with a crime, he said.
And he said, you could destroy that man's reputation, his job, his finances, his family.
And so prosecutors always had to be specially careful that what they were doing was neutral, that it wasn't partisan.
He said, we prosecute crimes, not the man.
After seeing what this special counsel has been doing, Jack Smith, after seeing what the DAs in Manhattan and Georgia have been doing, it's obvious they're out to get the man, not the crime, which is exactly the attitude that the Soviet Union's secret police used to have, right?
There's Berea famously said, show me the man and I'll show you a crime.
And I worry that our Justice Department is getting closer and closer to that.
It pains me to say that, but I can't explain why they have gone so over the edge with their prosecution of Trump.
When you were in the Justice Department, there's this moment when Joe Biden essentially came out and said, I want Trump prosecuted.
And that sort of seemed, at least in terms of time, it seemed like it was causation.
It seemed that that's when they started to prosecute.
Was that something that never happened?
Sometimes happened, happened behind the scenes, but we didn't see it.
It seemed to me anomalous, but I don't know.
Is that something that you kind of, you were getting pressure from the White House?
If Nixon had done what Biden did, they would have impeached him for that.
One of the main things you're not supposed to do, again, this is one of the norms that's been tossed aside that's existed for centuries is right, the president is the head of the executive branch.
He is actually the head of law enforcement under the Constitution.
The Attorney General reports to President Biden.
The special counsel ultimately reports to President Biden.
The Constitution doesn't mention anyone else actually as carrying out law enforcement.
And so it was always an important norm that you don't accuse people of doing things that you can't prove.
You don't go around saying someone is an insurrectionist.
Someone is an existential threat to democracy is the phrase I heard Biden just say.
What you say is what you prove in court, what you're willing to go to court for and charge someone with and prove it against them.
You don't go out and say, you don't go out and investigate Andrew Clavin for speeding, but meanwhile say, and he beats his wife.
That is one of the core norms of being a prosecutor.
And so I am willing to accept that if someone actually was an insurrectionist, they should be investigated and prosecuted.
But when you look at what the special counsel eventually charged President Trump, the word insurrection and sedition does not appear.
He's charged with defrauding the United States as if Trump were a defense contractor who charged us for a hammer for $600.
They charged him with obstructing an investigation of Congress, which the Supreme Court says you really can't charge him with.
So That is the most dangerous thing.
And this is something presidents were always very careful to do, was never to accuse people of things that they weren't willing to charge them for in court and prove before a jury.
Because you can see the terrible danger that creates.
It's what we've seen here.
Then you'll have presidents going out and accusing someone of being a criminal and then, right, not feel like proving it at all, but have the implication that they have the whole machinery of government behind them and that they know things about them that they don't feel like proving.
Ultimately, I think it undermines public faith in the justice system and it ruins the integrity of our rule, you know, rule of law.
Is the special counsel?
It seems to me that if you have a special counsel, he almost has to find something.
I mean, he has to justify his appointment.
It just seems a bad way to use human nature.
You know, it seems like it's against human nature.
Is that something that should be gotten rid of?
Does it have a purpose?
Yes.
So, I mean, the special counsel has been a terrible idea.
And in fact, this special counsel has been held illegal and unconstitutional by a judge in Florida.
And this special counsel doesn't actually make any sense.
So the reason we've had special counsels before is if the president or his family members were accused of executing a crime.
So remember, since the president's in charge of law enforcement, they actually are in a quandary because they want the public to believe the investigation into themselves is legitimate.
So they would actually say, you would have presidents like Nixon himself.
I'm appointing a special counsel.
I want them to be independent because when they clear me, then everyone will believe it.
So that kind of special counsel makes sense.
Like having a special counsel for Hunter Biden makes a lot of sense, although I think they picked the wrong guy there too.
What you don't need a special counsel for is investigating Donald Trump.
He's not the president anymore.
He's not in charge.
So what they did, what Biden did was he deliberately picked someone to be special counsel so he could unleash them on Trump and to pretend he had no responsibility for it, even though, of course, he benefits enormously from all the investigations into Trump.
But, right?
So this is not even actually an appropriate setting for a special counsel.
The second thing is, I think really the special counsel should always be accountable to somebody.
And so ultimately, this guy, Jack Smith, is responsible to Merrick Garland, who is responsible to Biden.
There was before a special counsel that was created by Congress, and he was unaccountable to no one.
I mean, he was just utterly unaccountable.
He could spend whatever money he wanted, hire whoever he wanted, and keep prosecuting and investigating until he felt like stopping.
And that one eventually, right, that was used heavily against Republicans in the 80s.
And then when it was used by Ken Starr, who was the special counsel investigated Clinton, suddenly the Democrats realized that was a terrible idea and they let it expire back in 2000.
But I think these special counsels are a bad, bad idea.
I think instead the better thing to do with presidents who are accused of abuse of powers for Congress is to investigate them for impeachment.
That's what the Constitution really wants as the instrument for correcting presidential abuse.
Is Merrick Garland, you said you didn't like my use of the word corrupt.
I don't think he's taking money or anything like that.
I don't think he's corrupt in that sense.
But is he a guy who was oversold to us as a good guy?
Or is he a guy who has lost his way?
Or what do you think is going on with him just as a public figure?
I think he has such strong ideological blinders on, he doesn't even realize that it's distorting what he's seeing.
And that's probably the most charitable thing conservatives said about him in a long time.
You know, I don't think he was originally a partisan figure.
You know, he was, if you may remember, he was a judge on the D.C. Circuit, the second highest court in the land.
And he had been nominated to be a Supreme Court justice back in 2016, never got a vote because of Senator McConnell keeping the seat open.
So he could have felt some bitterness.
I wouldn't blame him for being human if he didn't have some bitterness about that.
But instead, what I think is going on is he and other people in the Biden administration are so convinced that Trump really did try to execute an insurrection, that he really did try to carry out a coup, that they think anything they do to investigate and prosecute him and get him, stop him from becoming president again is legitimate.
And so I think it's a, I don't think it's partisan, like Republican, Democrat.
I think it's ideological.
They just believe that Trump is an insurrectionist.
If he really were an insurrectionist, you would say, oh, we should stop him from being president.
I think that's how I think he thinks and a lot of the upper leadership of the Justice Department, I think.
So I want to ask you a little bit about the, I know the cases against Trump are probably not going to come to any kind of fruition before the election.
But I want to get to the point about losing faith in the legal system.
So I just want to go over a couple of things that I saw, and I'm not a lawyer.
I read the indictments, but I just want to understand if my reactions are overreactions.
I mean, especially in this New York case, when the judge said to the jury, you don't have to know what felony you're convicting him of.
I kind of felt like I disassociated, like I thought I was floating in space somewhere.
You're completely right.
That trial was a travesty.
I mean, it was a miscarriage of justice, and Trump should win on appeal.
It might take him years to get his reputation back.
But that, and I think if you talk to any objective observer, they would admit that case is the weakest of all the cases that were brought against President Trump.
It's ironic that it was the only one that got to verdict.
And that's because the judge, Judge Murcho, and the DA, Bragg, accelerated the case so fast, trampled over a lot of reasonable objections to what they were doing that ultimately they won at the Supreme Court.
And so that's one of the other reasons that trial is going to have to get thrown out.
And it's really based on an account, this claim about an accounting shenanigan, which itself is not a felony.
So this is in direct answer to your question.
They couldn't bring a charge just for bookkeeping errors because they had waited too long to bring the charges.
And it was a misdemeanor.
So it was already, it's what we call the statute of limitations had run.
They had waited too long.
So what they essentially did is they said, oh, no, what we did with the, what Trump did with the bookkeeping, you know, charging himself in the wrong way, essentially, was a cover-up.
It was a bookkeeping, it was an accounting error that was really a cover-up to some greater crime.
Yeah, and then as you said, Andrew, they went to the jury and said, you don't have to decide what that greater crime is.
But if you think there was one out there, then you can convict him and throw him in jail.
I mean, that's a violation of due process.
I mean, you can't, I mean, you just can't do that.
And an American tries to say, well, you can convict him of something.
We don't have to tell you what it is.
But that's why Bragg and the prosecutors dragged Trump's reputation and name through the mud during the trial on questions that had nothing to do with the charges.
They spent great length of time getting Stormy Daniels to testify about what Donald Trump looks like in his underwear, what kind of shampoo he uses, because they wanted to say, oh, he's a terrible adulterer.
He must be guilty of something.
And that's a miscarriage of justice.
Second thing is this greater crime, whatever it is, is going to be a federal crime because what they told the jury, what they've been telling the American people, is what Trump really did was he paid off Stormy Daniels. under a non-disclosure agreement because they were worried it would affect the election.
And this was really an effort to influence the 2016 presidential vote.
Not that politicians ever try to influence a vote, but that's a federal crime if it's a crime.
And that's up to the Justice Department and the FEC.
And they decided not to bring any charges.
State DAs aren't allowed to go around and force federal law however they like.
It's up to the federal government to enforce federal law.
And then the third big failure, the other reason you're dissociating is your sister, you say, like, how is it that President Trump can be prosecuted by a state, you know, an elected New York City DA for things that he did when he was in the Oval Office and have White House officials testify against him, right?
That has occurred in the trial.
The U.S. Supreme Court said that that was a violation of Trump's rights.
And because of that, any normal judge would throw this verdict out at this point and say, we got to hold a new trial because the Supreme Court said a significant part of what we did actually violated the Constitution.
But this judge and this DA, they want to notch a political hit on Trump saying that he's a convicted felon so that they overrode all the things you're supposed to do under the law and having a fair trial in order to get Trump.
Yeah, I'm glad to hear that.
I mean, it's what it seemed like to me, and yet I didn't feel it was reported at that level, the level of sort of shock that I was in when I was watching that.
Term Limits Controversy00:05:11
Let's move on.
There are other things I'd like to ask you about that, but I want to move on to the Supreme Court.
The Supreme Court, now that it has conservatives on it, has come under attack from Congress and from the president.
And the president has put forward this plan, which I don't suppose is ever going to go anywhere, but still, it was put forward as if it were benign.
For instance, term limits.
Everybody hears term limits for the Supreme Court and thinks, well, I can understand that.
Why should they be there until they're 85 and past the point when they can do anything?
But is that that seems to me to mess with the program in a big way?
Is that true or not?
People should realize that this is just a barely disguised effort to pressure the court to stop deciding cases in the way that Joe Biden and his party doesn't like.
This is exactly what FDR did when the Supreme Court blocked parts of his New Deal.
FDR said exactly the same way you described it, Andrew.
He said, oh, there are so many old justices.
They need helpers.
So we're going to appoint like these helper justices for every justice that's over 70 to assist the older justice to understand the real world, the new world we have, and to assist them in their duties as they age, which would have given, and by that, I think by that count, he would have gotten to appoint six justices to the Supreme Court.
The American people back in 1937 realized that was just a ruse and that what FDR was trying to do was pack the court.
I hope they see this for what it is too, that this is a ruse that President Biden and the progressive left want to use to try to remove the Supreme Court as an obstacle because the Supreme Court has been blocking their efforts to achieve their goals without complying with the Constitution.
They don't like that the Supreme Court is saying, if you want to forgive $450 billion in student debt, then have Congress vote on it.
If you want to have abortion, have people in the states vote on it.
I mean, an ironic way, actually, what the court has been doing in a lot of these decisions has been kicking back a lot of the most important questions in society and telling people to vote on it rather than having the Supreme Court decide it for everybody.
It's a threat to democracy.
But progressives.
Progressives, yes, it's an existential threat to democracy.
Progressives hate this because if you know what the right answer to everything is, why would you let things like voters get in the way when you can just get five justices of the Supreme Court to do it for you?
But I have to say, I disagree with you a little bit, Andrew, in the sense that you don't think it's going to go anywhere.
I actually worry about that because, you know, Kamala Harris has endorsed the plan.
If Democrats take a 51-vote majority in the Senate and get rid of the filibuster and they take the House, I could easily see this bill moving through quickly.
This is one of the things I think progressives really believe that the Supreme Court is some kind of opponent of their agenda.
Lastly, I'll just add is this is one where I think progressives always escalate and conservatives are slow to catch up.
When the Supreme Court made gay marriage the law throughout the country, whether you agree with that as a policy or not, they did it unilaterally and short-circuited the democratic process in the states.
I didn't hear conservatives say, oh, we got to add six new justices to the Supreme Court.
We've got to have term limits.
That's one, I don't think conservatives, when they lose these political battles, they start to entertain, let's just overthrow the whole system because it's not working for us.
But that's what I hear coming out of my progressive friends right now.
Yeah, no, I hear it all the time.
No matter what they lose that, that's the problem.
The electoral college, free speech.
I mean, free speech is something that they are now actively opposed.
And the Supreme Court.
I just want to go back for a minute, though, to the idea of term limits.
If, let's say they said we're going to have term limits, but they won't start for 50 years.
Are term limits for the Supreme Court inherently a bad idea?
I don't think they're inherently bad.
The question is, how would they be applied?
And the second thing is, I think that I wouldn't mess with anything having to do with the Constitution.
We've had such a successful run as a country.
The Constitution has a lot to do with it.
All the parts work in ways we're not really sure exactly which stick you pull out and then the whole thing starts to tumble.
And I do think that having a Supreme Court that's untampered with by either side for partisan reasons is important.
So I don't have, you know, as an abstract concept, I don't mind having term limits.
I will say one thing.
I mean, the only job we have term limits for at the federal government is the president, the two-term limit.
I'm not so sure that's even a good idea.
Alexander Hamilton actually spent some amount of time in the Federal Papers saying, you know, term limits seem like a good idea, but how do you restrain a president in his last term then?
Yeah.
Yeah.
And that's what I would worry about: I'm not so sure term limits are really a very good idea when you start to think about it.
People Come Forward00:06:13
So you were credited and blamed with allowing the W. Bush administration to go forward with enhanced interrogation.
Recently, there was a deal struck momentarily with the terrorists in Gitmo, the guys who were engineered the 9-11 attacks.
And then it was overturned, then it was thrown out, right, by the Department of Defense, I guess.
What did you make of that?
What was going on there?
Well, the first thing is these are people who were responsible.
I mean, these are people who were captured.
They were early leaders of al-Qaeda.
They're responsible for planning and carrying out the 9-11 attacks.
They're proud of that.
And I think if there's anybody who should be eligible for the death penalty, it's them.
And that was what the deal was.
I think that the deal that was struck between the Defense Department prosecutors and the Al-Qaeda terrorists was they would get life in prison.
And the 9-11 families, I think, were rightfully upset.
There are people who think that they can't get a fair trial because we did interrogate some of them, and the defense lawyers are raising objections that this means they can't get a fair trial.
All the evidence against them has been biased.
This has never come up to the Supreme Court before.
I think that the prosecution, as I remember it, has said that all the evidence we've gathered to use against them hasn't come from any of these interrogations.
So we can still guarantee a fair trial.
And so I would say, because of how terrible their actions were, I don't think we should be taking the death penalty off the table.
Second, we got to have a deterrent against terrorists in the future.
And so if it turns out all you got to do is wait out the American government and make all kinds of accusations against them, some of them I think are unfounded.
And you're going to just scare the United States government into taking the death penalty off the table.
Well, what effect's that going to have on future terrorists and future 9-11 plots?
So I thought it was a mistake to reach that plea.
Look, there are people who I served with in the Bush administration who have the other view because they would rather see this come to some kind of conclusion rather than having it opened and ongoing.
I could see that point of view.
My friend Ted Olson, whose wife Barbara, who was Solicitor General then and whose wife Barbara Olson died in one of the 9-11 planes, he, I think, has said that he would rather have the thing brought to a conclusion and have them given life sentences.
I think that it's important to have the death penalty on the table, not just for retribution, but to deter future terrorists if that's possible.
If Donald Trump gets reelected and he appoints John Yu to be Attorney General, what would you do to restore faith in the rule of law in this country?
What do you think needs to be done at the DOJ?
So I guess all the senators would have been on their lunch break during the confirmation vote.
That works for me.
Yeah, just a momentary loss of attention.
So I think the most important thing to do is to restore people's faith in the rule of law, to restore the idea that the Justice Department is not, and the presidents are not picking out their political opponents for prosecution.
One thing about going after Trump that has been so damaging is not just that he was a former president, but he's the leading candidate of the opposition party for president.
And so the criminal justice system in our country actually can't function if lots of people don't believe in its integrity.
People have to come forward as witnesses.
People have to cooperate with prosecutors.
People have to believe that the law is going to be enforced when they volunteer.
America is an incredible country in that respect.
I mean, people in Europe, I don't know about you, Andrew, but my friends in Europe are stunned that so many Americans voluntarily file their taxes and pay.
They don't need anyone to force them to do it.
That's a wonderful thing about our country.
And I'm worried these last four years have really undermined people's faith.
So I think that's the most important thing an attorney general can do.
That might mean doing something dramatic, like saying, we're not going to prosecute Hunter Biden as well as Donald Trump.
It might take something dramatic and symbolic, but that's what's necessary because I really worry that people have come to view law enforcement in our country as driven by partisan motives, not by just a desire to enforce a law and protect the public.
Yeah.
John, it's great to see you and a really interesting conversation.
I hope you come back and talk again.
I'm sure there'll be more to say right soon.
I would love to come back.
I'm sorry if I went on too long talking about the intricacies of federal law enforcement.
I worry it's not, it's so boring.
I mean, you talk about all kinds of cool stuff like a woman underground.
I mean, that just sounds so much better than anything I could do.
I don't know if the book is about, but the title sounds great.
It could be about anything.
Life is so much easier if you just make stuff up.
That's the great thing about being a novelist.
John, it's great to see you.
Thank you very much.
I really, I hope you'll come back and we talk again.
Thank you.
My pleasure.
I really enjoyed it.
John, you really a brilliant guy and just a really interesting conversation for me because when I watch this stuff as a non-lawyer, I've been appalled at the way the Biden administration has handled the DOJ and the way the DOJ has handled Donald Trump.
And sometimes you sit there and think, am I really seeing this?
Is it really as bad as it looks?
And apparently it is.
Now we know.
I hope you will come to the Andrew Clavin show on Friday.