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John Yoo
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John Yoo
Law Professor, UC Berkeley
John Yoo is a professor of law at the University of California, Berkeley. Yoo served as the deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice during the George W. Bush administration. He also served as general counsel of the U.S. Senate Judiciary Committee and was a law clerk for Supreme Court Justice Clarence Thomas and federal appeals court Judge Laurence Silberman. He is co-author of The Politically Incorrect Guide to the Supreme Court.
The following interview was conducted by the Kirk Documentary Group's Mike Wiser for FRONTLINE on March 27, 2025. It has been annotated and edited for accuracy and clarity as part of an editorial and legal review. See a more complete description of our process here.
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Maybe start with this idea of the unitary executive, which people are talking about a lot right now.What is it, what was the state of play coming into the Trump administration?Where did this idea come from?Just help me understand it.
The unitary executive theory comes to us from the very founding of the republic.It’s an idea I think that was really first promoted by Alexander Hamilton in The Federalist Papers and then in the first Washington administration.It is the idea that the Constitution vests all of the executive power of the federal government in a single person, the president.1The Constitution doesn’t mention any other figures in the executive branch.Then it gives the president certain responsibilities, like commander in chief, chief executive— execute the laws and so on.That implies that everyone else in the executive branch is an assistant to the president, who helps him or her carry out those constitutional duties.Therefore, the president must be able to direct and control—ultimately fire—all those officials who are also helping him carry out federal law.
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Law Liberty: Putting the "Executive" in “Unitary Executive”
And how did it become a debate?Because the way you're describing it I gather is not the way some people see it, especially after Watergate and the Nixon presidency.How did that conception change?
I think there are two watershed moments where you see resistance to the unitary executive idea.The first one is the New Deal.During the New Deal, Congress gave a lot of power to the executive branch to regulate the economy for the first time, but it didn’t really trust the president.So Congress would give the power to the executive branch and then try to create these special commissions, special bodies, and say, “The president can’t really fire those people.”
Then the other watershed moment, of course, is Watergate.[Richard] Nixon was seen to have gone too far in pressing the powers of the presidency, and so in a series of reforms in the ’70s, Congress tried to take some power back.It tried to create new kinds of independent bodies.The high point of this I think was the independent counsel, where the Congress actually moved part of the power to prosecute, which is the core executive power, the power to carry out the laws, and gave it to someone not really under the control of the president.
So one way to see what’s happening today is that it’s a clash between the original, more Spartan view of the executive branch that was introduced by our Constitution, our founders, and this more large, bureaucratic state that we have with multiple power centers, which are designed not to be fully under the control of the president, really established in the New Deal but really put into cement by Watergate.
What’s at the heart of it?What is the argument in favor of it?You say that it’s in the Constitution.But as a sort of democratic, what would be the argument you would make for this theory?
I think the main argument for it is two.One is, it produces a better executive.Alexander Hamilton had said the definition of good government is an energetic executive.2You want someone who can act with speed, decisiveness, energy.If you have an executive branch that is split up with different power centers, each of them running independently from the president, you introduce what Hamilton thought would be a sluggish executive, one that’s fighting with itself, one that can’t get its act together, can’t act swiftly.
2
Bill of Rights Institute: Federalist Paper no.70
The other one is democratic theory.If you have these independent bodies, who do they work for?Who are they responsible to?How do the voters know who’s in charge?And more importantly, how do the voters hold them accountable?At least with the president, who is responsible for the executive branch, everybody knows we voted for that president.That president is accountable for everything, therefore, that happens in the executive branch.
I’ve heard that analogy to Gulliver.What is that?
I think I introduced that idea.One way to think of it is, Gulliver is the president.And then, after Watergate, what Congress did is they tried to tie him down, just like the Lilliputians tried to tie down Gulliver.And what you've seen, presidents … [Donald] Trump is not the first president to come up with the unitary executive theory.Trump is not the first president to try to push against the bounds of these Watergate changes.You could see the presidency is trying to reassert itself, to break free from these bonds that have been with us at least since Watergate, if not from the New Deal.
Yoo’s Career Background
One other thing about this is your background and your career.But also, is it fair to say you’re an advocate for this idea?How did it come to you, and how has it played out across your career?
Well, I started my career writing about war, writing about war powers.This is actually one area where the energetic executive has I think historically been a benefit to the United States, and it is an area where Congress did, after Watergate, in the War Powers Resolution, try to take some of these powers away from the president.But this is one area, Democrat or Republican, presidents of both parties, have ignored the War Powers Resolution and continued to assert the right to use force abroad without a declaration of war, without congressional approval.
And your role in it, in [your] career?Because you spent some time in government.
Actually, I’ve been in all three branches of government.I did serve in the Justice Department, in the Office of Legal Counsel during and after the 9/11 attacks, and of course I worked on the counterterrorism response where President [George W.] Bush did make these same arguments that President [Barack] Obama, President [Joe] Biden and now President Trump are making of war powers.I also worked in the Senate as general counsel of the Senate Judiciary Committee, and I clerked on the Supreme Court.
So it’s not that I think I advocate for one branch over the other.Actually having worked in all three branches, I have a lot of sympathy for the perspective of each one, but I think on this question, this way of approaching the presidency is more true to the original conception of the executive branch.
Did being there around 9/11 change your view of this, or that was where you were?
No, I had had this view before 9/11.I started writing about this actually under the [Bill] Clinton administration, and I was supportive of his decision, for example, to intervene in Yugoslavia without congressional permission.
Before we get into the Trump administration, one other thing a lot of people have talked to us about is Trump v. United States, as a key moment coming into the Trump administration that tells us something about presidential power, where the Supreme Court is.3How important do you think that decision was?
3
Oyez: Trump v. United States
Well, one important thing to realize, again, is that this unitary executive idea is not just something that Trump came up with, or Nixon came up with.It’s something that’s actually fully expressed in Supreme Court opinions, and Trump v. United States, which granted the president immunity—past presidents immunity from criminal prosecution—is just the latest statement.In Trump v. United States, the Supreme Court, with Chief Justice [John] Roberts writing, says the president is the chief of the executive branch, and the president is also in charge of executing the laws and for this reason must have immunity from presidents later on prosecuting him or her for those decisions.
And one of the reasons the chief justice gives is so that the president can fully run the executive branch and take advantage of those Hamiltonian qualities of energy and speed and decisiveness without having to worry about his criminal liability or civil liability after.
For President Trump to come in in his second term with that explicit, with that decision made, do you think that sent him a message to him or to the lawyers around him?
I’m not sure.I think there were already a series of decisions by the Roberts court, particularly in the area of removing subordinate officials.We’re seeing that play out right now.But this court, for the last 20 years, has actually been moving this unitary executive theory forward already, so even if Trump v. United States had not been decided, I think the Trump administration still would have been doing what it’s doing.4
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Columbia Law Review: BECOMING THE ADMINISTRATOR-IN-CHIEF
Donald Trump is not a lawyer, and I don't know if he’s familiar with the phrase “unitary executive theory.”I want to ask you about two people inside the administration and if you know them and their views on it, starting with Mark Paoletta.… Can you help me understand him and his perspective?I know he wrote an article after that decision, but has a history going back farther than that?
Well, Mark Paoletta started his career in the White House Counsel’s Office back in the George H. W. Bush administration.If you think about the two most important offices, legal offices, for defending the constitutional powers of the president, they are the White House Counsel’s Office and the Office of Legal Counsel in the Justice Department.So you could say probably that Mark has been working on these issues for over 30 years, three decades, where he’s been in these positions of defending the executive branch, and then he was, I believe it was general counsel of the Office of Management and Budget in the first Trump administration, which I think is the same job he holds now.
And again, part of that job is, OMB specifically, trying to exercise the president’s control over the vast executive branch bureaucracy.I think in both of those jobs, Mark would have come to have a very pro-executive position, although during much of his career, I believe he was a congressional staff aide as I had been, so I think he certainly is respectful of congressional prerogatives, too.
Trump’s Executive Orders
… Let’s go into the first day of Trump’s administration.There is a flurry of executive orders on all sorts of things, and presidents always are signing executive orders.People have told us that this was sort of unprecedented kind of testing of presidential power, of the Constitution, when it comes to birthright citizenship.What did you see in the flurry of executive actions?
They’re certainly unprecedented in terms of doing it all at once in the first week.I think there’s two kinds of orders.One is the orders that are about the president trying to reassert control of the way the executive branch works internally.Who do I get to order?Who do I get to fire?Who has to follow my orders?How can I rearrange the organization and size of the agencies?I think in the end, Trump is going to have a lot of success on those.The other kind of orders are ones where he’s affecting people outside the government.You mentioned birthright citizenship, where he is actually trying to change the legal rights and duties of citizens, people outside the government.There I don’t think Trump is going get any special deference from the courts.I think he may tend to lose as many as he wins there, but that’s nothing unusual.
I think the real area of innovation and change is what he is trying to do within the executive branch, where courts have been more deferential, as mentioned, like in cases like Trump v. United States, and these earlier, Roberts court cases—to what presidents of both parties want to do.
What about the overall?People talk about there was a “flood the zone” strategy, and apparently the orders did not go through the Office of Legal Counsel, where you worked.What’s your assessment of the strategy, of the quality of them?Are they trying to overwhelm the system?
I think that legally you can’t overload the system.Maybe they were trying to do that politically.There were so many orders on so many things.Maybe the strategy was, we’ll just overwhelm the ability of the inside-the-Beltway community to analyze all of them and criticize all of them.But legally there have been dozens if not hundreds of lawsuits filed, and many of these executive orders are now tied up in court.There is never, I think, a chance of really sneaking anything through the legal process.People have the right to go to court if they are affected by these executive orders, and they are fully making use of that right now.
He clearly had the right to pardon all of the people he did on the first day from Jan. 6.What did you think of it as a message, as somebody who had worked at the Justice Department?
Yeah.First, constitutionally, the president has an absolute right to pardon, so this was up to President Trump’s discretion.I would not have pardoned anybody who had been convicted of any kind of violence or conspiring to commit violence on Jan. 6.There may be people who were engaged in simple trespass, who were protesting but didn’t hurt anybody.I could see a distinction between people who committed violence, felons, and people who were not violent.
So I wish he had not pardoned everybody.5I think that sends a bad message throughout our justice system.
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Trump’s Speech at the DOJ
I saw an interview with you before he went to speak at the Justice Department where you said you hoped he would go there and chastise the department for what they had done in the prosecution of him, I believe.Can you help me understand that moment of him going there, what it was that you meant, and to some extent what might have motivated him to do that?
There seemed to be this idea that presidents aren’t allowed to go speak at the Justice Department, and I think this actually is wrong.I think by going to speak at the Justice Department he is reasserting what you mentioned from Trump v. United States.The president actually is, under the Constitution, ultimately responsible for the execution of federal law, for federal law enforcement, all of it.The Justice Department is not independent of the president.The president is the one who is responsible for every prosecutorial decision, every investigation that the Justice Department chooses to make.
So I think it is actually important for a president to make that clear.I also thought it would be a good idea, because whether you agree with it or not, the Justice Department under the last administration did break this tradition that we’ve had in our country for our entire history of not prosecuting bad presidents, past presidents, and that’s not because every president we’ve had in our history has been a golden boy, golden girl, right?We’ve had bad presidents.We did not prosecute Nixon, for example.I thought that was a terrible thing that the last Justice Department did, and I thought it was important for the president to go and say, “This was a mistake.”
Now, the speech.I didn’t watch the speech; I read the transcript.It seemed to be more of a campaign-style speech, where he wandered around and went well beyond doing that.I can’t really speak to whether that was a good idea, but I thought it was a good idea to make clear that the president is in charge of the Justice Department, just as he’s in charge of the Treasury Department, the Defense Department, the State Department and every other executive branch agency.
I guess the question is—he says the Justice Department was weaponized and he’s at the Justice Department.He calls out political enemies, a lawyer who he refers to as “scum,” standing there at that moment.6Did that go beyond what you would have wanted—
Yes.
—in chastising?
Yeah. When I say chastising, I don’t mean calling people names, attacking the entire department.What I hoped he would do is go there and make clear that this had been a breach of norms we had during our entire history; was a bad idea; brought the Justice Department too far into politics, where prosecutions I thought were being used to try to affect election outcomes; and to say we were going to, that the Justice Department was going to stop that, that we are going to refocus on other priorities other than national politics.
Like I said, unfortunately he crossed the line into sometimes more of a campaign stump speech, which I don’t think is a good idea for him, not to give to the Justice Department but to give as the president to any of the Cabinet agencies.
At the Justice Department, one of the things that the attorney general does when she comes in is to issue a memo, where she says the president of the United States, me as the attorney general, are the ones who decide what the law is for, the executive branch for the department, and if you don’t like it, maybe you shouldn’t be here.7What do you make of that, of that memo, of that argument?
7
Department of Justice: Office of the Attorney General Memorandum
I didn’t read the memo.What she says is at base correct.The part about whether you want to leave or not, that’s a totally different matter, but presidents have long said they have the right to interpret the Constitution, too, particularly in areas within the president’s core constitutional authorities.And on behalf of the president, the Justice Department performs that function.That’s why we have offices like the solicitor general and the Office of Legal Counsel, is that we interpret the law, interpret the Constitution on behalf of the president.
What she’s saying there is true, that the president has the right to interpret the Constitution, too.I’ll point us back to Andrew Jackson, who decided to veto the Bank of the United States after the Congress and the Supreme Court and past presidents had all decided it was constitutional.8But Jackson said, I have the right to interpret the Constitution as I see fit, and using my own powers, I can veto something because I think it's unconstitutional, even if the other branches don’t.He said the opinions of judges don’t bind the way I think about the Constitution, just the way I think about the Constitution doesn’t bind judges.
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National Archives: Conflict with the Executive:The Bank War
When I talk to people who say that there is an idea that the people who work in the Justice Department are his lawyers, the “president’s lawyers,” and that is not how they see themselves—they see themselves as lawyers for the United States and with their duty to the Constitution—what do you make of that?How does that fit into that idea of the unitary executive, when people push back on that idea that they are not the president’s lawyers?
That’s right.Trump’s not the first president to use this kind of sloppy rhetoric—“my secretary of Defense” or “my Justice Department.”It is not just Justice Department lawyers.Everyone who works for the executive branch works for the United States government.They don’t work for the person who happens to be in the office; they work for the office.
One other question on this, because you worked at the Office of Legal Counsel.What happens if the president, either maliciously or not, says, “I know enough about what the law is, and I don’t need to listen to the Office of Legal Counsel,” or “I don’t need to listen to the lawyers around me.”What do you make of a situation like that, when you have the unitary executive theory, when you have the president being the final say, the only one elected in the executive branch?
Hopefully it doesn’t ever come to that.But if a president were to say, “I am interpreting the law or the Constitution this way," and you’re the attorney general or you’re the White House Counsel and you disagree, then the president is the head of the branch of government, and he is elected.He is the one appointed by the Constitution to make those decisions in order to take care the laws are faithfully executed, which is the phrase from the Constitution itself.He has to figure out what the laws mean.
Then your only choice is really to resign if you think that he’s really making a serious mistake, and he’s interpreting the Constitution truly at odds with what you think it means.
The Eric Adams Case
The place where this really bubbled up early on was the [New York City Mayor] Eric Adams case, where it is not necessarily the president’s interpretation, but it is the interpretation of the Justice Department, or the order coming down from the Justice Department, to the Southern District to make a deal here that the acting U.S. attorney doesn’t feel is legal.What do you make of that case and its implications for what we are talking about?
First, I don’t think that the Eric Adams case involved any kind of misinterpretation of the law.This is a question really of what kind of factors should go into the president’s decision when he uses discretion.I don’t think anyone doubts the president and the Justice Department have the right to choose who to prosecute and not to prosecute.The president says, “Don’t prosecute this person.”That is not illegal or unconstitutional.That’s certainly constitutional, and presidents can do it for reasons that don’t have to do with the guilt or innocence of the party.They’re certainly allowed to do it for broader national reasons.
President [George] Washington, during the Whiskey Rebellion, chose not to prosecute some of the ringleaders of an actual rebellion, an insurrection, because he thought it was better to have peace; he thought it was better to calm the waters.That didn’t have to do with whether they were guilty or not.
So I think the criticism of Trump deciding not to prosecute Adams is way overblown, and claims it’s illegal or unconstitutional are quite unfounded.But on the other hand, I think the U.S. attorney in New York and those who are on her prosecution team—certainly within their rights to say, “I’m not going to carry out this decision I disagree with.I think you, Mr. President, or you, the attorney general, have made the wrong choice, so I’m resigning from office.”I think they did the honorable thing, too, from their perspective.
And I think that’s always a choice available for any of the people who are subordinates in the executive branch.If they disagree with the president, they disagree with the agenda, his reading of the law, they don’t have to serve in government.They don’t have to assist the president in carrying out interpretation of the law that they seriously disagree with.
Is there any line that could be crossed?If he—I don't know what the line is.If he takes money from somebody who is charged if it’s—the allegation here is that it was for political benefit.It’s unclear.We don’t know the facts, if it’s for policy benefit or political benefit.But is there any line in the president’s discretion?
The founders, when they created the Constitution, I don’t think they expected the Justice Department and courts to be the ones to control presidential misdeeds.The impeachment clause is designed to take care of this, right?It says you can remove a president for bribery, treason, and other high crimes and misdemeanors.Corruption would certainly fall within that category.If the president took a bribe, if a president was doing something for reasons not in the public interest but for his own personal interest, those are grounds for impeachment.
One thing we’ve fallen into after Watergate—this is actually part of Congress’ effort to tie down the presidency—was the idea to use the criminal justice system, the idea to use prosecution to try to constrain presidents, to try to block off presidential control of the executive branch rather than the job really being up to Congress.That’s the branch that the founders expected to control the presidency.
Elon Musk and DOGE
Let’s talk about another area that’s gotten a lot of attention, which is the role of Elon Musk, of DOGE inside the executive branch.It’s obviously created a lot of controversy, some of it legal and some of it about the appointments clause and some of it about separation of powers.What do you make of DOGE as an entity?Had you seen something like that before?What’s your analysis in what we are talking about?
It’s hard to tell because it’s hard to tell exactly what the facts are about DOGE.Certainly presidents have the right to call in outsiders to help him make decisions, to help him develop policy.This is a long tradition going back all the way to the time of the founding, where presidents turned to private citizens for advice.What really matters is, does this DOGE body have the power to order anybody to do anything rather than just advising?If they actually have the power to do something, like if they could give commands or orders, then I think they have to be appointed to a federal office.Then I think that they are covered by federal laws, and then I think that some of these claims against them might have some grounds.
But if they are more in the position of advisers, where they go to, say, the head of a Cabinet agency and say, “You might want to do A, B and C,” it’s really the Cabinet officers who do it.Then they are in the position of a commission or a committee that doesn’t have any real power of its own.That’s really the key.But I can’t tell from the facts whether it’s one or the other.And of course there is litigation going on about that right now.Maybe we’ll learn more in court, but if DOGE actually has real power to enforce the law, to give people commands, then they have to be appointed under the Constitution as federal officers, and they have to fit within the structure of the executive branch.
The other thing that it raises is questions about separation of powers and this idea of impoundment and whether the president can unilaterally say, “I don’t want to spend funds that are allocated by Congress.”I’m curious: Does that fit into the idea of the unitary executive?Is that part of unitary executive theory, the idea that … the law barring impoundment, is that one of those constraints?How do you view that issue?
Yes. Impoundment is a great example of a power that presidents had historically had from the founding, which Congress tried to limit and take away because of Watergate.I think it is fair to say presidents have two secure grounds for impoundment, the idea of not spending funds.One is they can’t be forced to spend funds unconstitutionally.Congress can’t say, “Build this bridge only using white workers.”The president is totally entitled to say, “I’m not spending—that’s a violation of the Constitution.”
From Thomas Jefferson on, through to Nixon, presidents also had a power not to spend money that harmed national security.The classic example is Congress wanted a little Navy built on the Mississippi River at the very moment that Thomas Jefferson was negotiating the Louisiana Purchase, so Jefferson said, “I can’t tell you why, but I’m not going to spend the money and build this fleet.”It turned out it was a good idea because we didn’t take that provocative action, and Napoleon sold us Louisiana.
All this continued by tradition and practice, and presidents and Congress would work it out through negotiation until Nixon.Nixon tried to impound all spending because he was trying to cut federal spending because of inflation.After Watergate, Congress passed the Budget Control and Impoundment Act [sic] and said presidents no longer can impound for any reason at all.9
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U.S. Government Accountability Office: What is the Impoundment Control Act and What is GAO’s Role?
The Supreme Court has never held on whether this Impoundment Act is constitutional.So one thing you can see Trump trying to do now is generate a test case to get to the Supreme Court, to see whether Congress really could take all of the president’s ability to stop spending, to freeze funding, or whether it’s limited to only certain areas.
USAID and Inspectors General Cuts
You’ve said national security as a justification, but a lot of what’s going on here, it’s hard to connect to national security with maybe more than a fig-leaf argument.What do you make of, “We’re going to shut down an entire agency,” like USAID?
This is the third area where the courts haven’t really dug in before.The Impoundment Act tries to take the president’s power completely away over domestic spending, so presidents can’t impound at all.Presidents had historically said, “Well, if you give me $100 million to build a bridge, because of a change in conditions, new technology, better costs, I can build it for $50 million.”Presidents would say, “I’m going to build it for $50 million and save the government $50 million, send the savings to the Treasury.”
Can Congress actually tell the president to waste money?Can Congress say, “You must spend $100 million on that bridge, even if you could do it for less”?Presidents have long said, “No, I don’t have to be forced to waste money.”Personally, I think Congress probably can force the president, if they specifically say so, to be wasteful, to waste the taxpayers’ money if they want, but that’s part of the fight, is the president is also trying to say, “That also is in the constitutional prerogative of the president.”
I’m not sure I agree, but I also think Congress has to be clear.A lot of these spending laws that President Trump is trying to freeze are not clear.They often just say, “The agency can spend up to $100 million.”They don’t say, “You have to spend exactly $100 million.”That’s where the fight, that’s where the struggle is going to be when this case gets to court.
And USAID, which is a congressionally created agency—and the claim, at least initially, it’s being completely eliminated.Is there a justification for that?
I don’t think that the president can actually close an agency created by Congress.Only Congress can establish and disestablish Cabinet agencies, but the president is in charge of how those agencies run.And so if a president says, “Congress gave USAID $60 billion to give out.I think a lot of those grants are harming our foreign policy and national security interests, so I’m going to tell those employees not to do anything.Don’t give the money away because you’re harming our national security interests.”I think that is actually closer to the president’s claims in the past: You don’t have to spend money that hurts national security.
The harder case for a president is the Department of Education.There is no foreign policy or national security interest with most of the Department of Education’s spending.This is the harder case.Can President Trump say, “I think the grants that we’re giving out through the Department of Education are wasteful.I want to freeze them”?I don’t think the president can fire people from the department, eliminate the positions forever, permanently, unless Congress says that the positions can be eliminated.I don’t think the president can close the Department of Education unless Congress closes it.But I think the president can tell the people there to redirect spending and give grants out according to his priorities or her priorities, which could have the effect of getting the agency closer to closing down just by not giving it its full mission.
In USAID, it seems like he wants to not spend money abroad, and Congress has said, “You should spend this money we are giving you abroad.”Is that a good test case for this issue?
USAID is a better test case for the president than it is for Congress because the president can say, “But this is all money aimed at foreign policy and national security.”The courts have recognized that the president is the primary policy setter and executor of our foreign policy, so could Congress, for example, say, “You, the president, have to give $50 million to Hamas,” or “You have to give $50 million to Hezbollah”?I think the president does have the constitutional right to say, “No.I’m not going to give that money because they are declared enemies of the United States, and I think it harms our foreign policy.”
The president can go into court and say, “A lot of the USAID grants are doing things that are actually counterproductive to foreign policy.”That’s going to actually be a stronger argument for him than instead saying, “I don’t want to give money to Head Start.”That’s a much tougher case for him.There I think he is not going to have as much success because there is no foreign policy or national security interest there.
We’ve talked to people who are outraged by the firing of all of the inspector generals [sic].I imagine that idea of independent office, of an independent watchdog inside the executive branch is one of the things that you were warning about or not in favor of.Is that right?Help me understand where you see the president’s power in that.
First of all, if everyone works inside, who works in the executive branch agencies, works for the president, then you can’t have people inside the executive branch who are independent of his control, and given jobs and functions and report to Congress rather than the president.So these inspector generals are a great example of these Watergate reforms that tried to chip away at the unitary executive, creating offices in each agency whose job is really to report back to Congress on what the agency is doing.
Mind you, this is not a constitutional problem because Congress itself has oversight authority and has the right to do this itself if it wants to as the legislative branch.I also think that the Congress can’t create officers in the main Cabinet agencies who cannot be fired by the president, because if the president can’t fire them, then they don’t have to listen to the president.They don’t have to take orders or direction from the president, and that I think is really an affront to the idea of a unitary executive.
I understand the argument that the president needs to be energetic, that the president is the only one elected, and these other individuals are not democratically elected.I think on the other side they would say the reason after Nixon was the potential of abuse; was that a political enemy could be audited by the IRS; that without an inspector general inside knowing what’s going on in secret that Congress and the courts might not know about, the president could use the executive branch to consolidate power in ways that go beyond the Constitution.What do you make of that?
I certainly understand the reason why the Watergate reforms were created in the first place.I’m no apologist for Nixon on Watergate.I think he did abuse his powers, and I think he did resign properly.The problem is I think the reforms went too far.I think that they, Congress, was worried about the potential abuse of executive power.But what they tried to do, notice, is not stand up for itself.What Congress should have done was invigorated its own oversight authority, its own investigation.
Look, I worked in Congress.I know how to conduct a congressional investigation.They are very effective.Congress can subpoena. Congress can bring through witnesses.Congress can remove executive officers through impeachment.They can cut off funds.But what Congress did after Watergate, rather than boost its own institutional responsibility for oversight of the executive branch, it tried to turn the executive branch in upon itself: inspector generals, special counsels, these new kinds of bodies, these efforts to reduce the president’s ability to control the Cabinet agencies.
That wasn’t Congress and the separation of powers trying to strengthen itself.That was an effort to fragment the executive branch.I think that was the mistake, to try to solve the Nixon problem by making the executive branch less effective.
Role of Congress
As you watch this moment, and you can see the Congress and—is it, as you watch it, there are some, certainly Democrats, who are saying the rights of the Congress when it comes to the power of the purse are being infringed on.Does it seem like the Congress is an effective check at this moment, even in these first few months?
We’ll see.Congress under the Constitution has plenty of authority to fight for itself.This is the reason the founders created the separation of powers.The famous language from The Federalist Papers is, “Ambition must be made to counteract ambition.”The founders wanted the president and Congress to fight.What they did not anticipate was political parties.The reason why Congress isn’t fighting now, if people want Congress to fight more, is that Congress is controlled by the same party as the president.Congress, the majority of part of the House and Senate, probably agree with what the president is doing with DOGE, with trying to close down spending programs, trying to reduce the federal workforce.
And so, if you have a Congress that’s in agreement with the president, well, then, they are not going to use these authorities against him.
When we’ve talked to people here who are journalists, they say that you are right.A lot of Republicans in Congress agree with what the president is doing, think it’s a good thing, but that some of them are afraid politically, are afraid possibly of violence after Jan. 6.How does the system that you’re talking about, that theoretical system of checks work if part of the Congress is afraid?
People in Congress have to do their duty.They’re elected to office for the purpose of representing their constituents, and part of their job is to conduct oversight of the president.This is not something that, again, Donald Trump thought of either.The person who really thought of this was [President] Woodrow Wilson.Woodrow Wilson is really the one who said, “I want to overcome the fighting between presidents and Congress, and I’m going to use political parties to do it.”The progressives, the ones who created this New Deal state, their view was that politics was dirty and ugly, and we didn’t want them, these politicians, running the government, so the best thing was to have a political party led by a president who would use his powers to organize the Congress to follow behind him so that the experts could make the decisions.
This is—I hate to say this—this is really kind of the working out of Woodrow Wilson’s vision of a president who’s exercising discipline and control through the political party to stop the natural tug for primacy that the separation of powers was designed to create.Trump might be more brash.He might be uglier in the way he does it, but this is what political parties have been trying to do for decades, for over 100 years now.
Trump Takes on the Courts and Law Firms
Does any of the rhetoric at this moment concern you when the president says, “He who saves the country does not violate any law”?There’s people around him who have said, “I don’t care what the judge thinks.”What do you think of that kind of rhetoric?
I deplore the rhetoric that suggests that anyone in the government doesn’t have to follow the Constitution or the laws or obey court orders.Hopefully it’s just careless rhetoric.I also take it that President Trump has said that nobody will be defying any court orders.That doesn’t mean presidents can’t challenge the courts, of course, but I think it would be a dangerous path for our country if any president starts saying they’re going to act outside the Constitution, so I hope it is just careless rhetoric.
… Do you think the courts can handle this moment, all of these hundreds of lawsuits and all of these issues?What’s your confidence in the system to sort it all out?
I think the courts are more than capable of hearing all the challenges and resolving them, and they’re doing it right now while we speak.We’ve got probably hundreds of lawsuits going, and the courts are handling them.Probably maybe not as quickly as the Trump administration would like, but I think they are all going to get handled, and a lot of them are going to make their way to the Supreme Court.
What do you make of the executive orders around the law firms, around Perkins Coie, around the others?
I hate to tell you, I haven’t thought that much about it because this sort of legal ethics area is not my area.I don’t like to see individual law firms punished.But again, this is not unprecedented either.After 2020 I had a lot of friends in the Trump administration who could not be hired by law firms, who—law firms generally refused to represent anybody who had been in the Trump administration, even if they had nothing to do with Jan. 6 or the effort to overturn the election results.I think, unfortunately, law firms have already been drawn into this back-and-forth fight, law schools, legal leaders.I think it’s unfortunate.
I see why Trump is doing it.I wish he hadn’t done it because I don’t think it’s necessary.I think there will always be lawyers and law firms who are willing to stand up and represent people and asserting their rights no matter what presidents say, no matter what elected politicians say.To me, going after law firms is like a self-inflicted error.
Because some of the people we talked to say it seems like an attempt to deny people who might challenge the administration and counsel, the idea of pulling security clearances, naming particular lawyers is a way to instill fear, and whether the executive order is legal or not, it sends a message.
Yeah.I completely understand that perspective, and that may be exactly why Trump is doing it.I think it’s not a good thing for the legal system if the executive branch is actually trying to sanction firms, for people who are not there anymore, or to punish individual lawyers, aside from investigating them.If the president thinks that people who went after him actually committed crimes in the course of doing that, well, he can have the Justice Department investigate them.I don't know whether law firms as a whole should be held responsible for people who worked there years ago.
Deportation of Venezuelan Migrants
You talked about war powers being an area where the president has sort of expansive authority.What about on immigration, which seems to be a forefront of a lot of this controversy?
Immigration is very complicated because it has separation of powers and a federalism dimension, federal/state dimension.The Supreme Court has said Congress has complete control over immigration, but Congress has delegated a lot of authority to presidents and how they choose how to run the immigration system.And so you’ve seen, I think right now, President Trump drawing on some ancient statutes like the Alien Enemies Act, which hasn’t been used since 1945, but also trying to use some of the powers that are granted very expansively to the presidency, to both Democrat and Republican presidents.10Democratic presidents use it to advance a more friendly immigration agenda, and Republican presidents, like Trump, have tried to use it to impose a more restrictionist agenda.
10
But the modern statutes also grant a great deal of authority to presidents in the immigration area, but ultimately the power is Congress’.
What do you think about the invocation of the Alien Enemies Act and in particular the idea that—can the courts review his claim that this is an invasion or a war, that these are terrorists?What do you think of the use of the Alien Enemies Act in this way?
Well, it’s unprecedented, so I don’t think the Trump administration should be surprised that out of the 677 trial judges in the country, federal trial judges, one of them was going to enjoin what they were doing because the Trump administration is making the claim that they can use this act for the first time outside of a declared war.Now the law, the Alien Enemies Act passed in 1798, does say it can apply in case of a declared war or an invasion or what it calls a “predatory incursion.”
And so the question is, is this, what we’re going through now, an invasion or a predatory incursion?The Supreme Court has never held—in fact, no federal court has ever issued a decision on this.It’s never been invoked before.I’m not sure.I think it’s a hard—it really depends on the facts.It’s really difficult, though, to say whether this gang, Tren de Aragua from Venezuela, can be considered an arm of the state of Venezuela.11If it is, then I think Trump has a better case.If it’s not, if it’s just a criminal gang or even a terrorist organization that’s not connected to any government, then I don’t think it falls within the Alien Enemies Act.That is just the base question.
The second question that you asked is, can the courts review it?That’s a hard question.The courts have said before that they get the right to review the Alien Enemies Act.In earlier cases, they didn’t want to decide whether there was a declared war going on or not anymore.They wanted to leave that up to the elected branches of government.One question today is, are the courts going to allow the president, and ultimately Congress, to decide whether this is an invasion or a predatory incursion, or are the courts going to look at the facts themselves and decide?
The courts really don’t want to take the second course.They really don’t want to have to decide on the facts: is this an invasion?Is this a predatory incursion?Most of the time in the past in war, the courts defer to the president and Congress on that.
What do you make of the conflict with Judge [James] Boasberg and the injunction on the flights continuing and some of the rhetoric that follows after? …
In terms of what’s going on in the political realm versus the courtroom, I think in the political realm, presidents have every right, politicians have every right to attack judges for what they decide, and they can use crazy rhetoric if they want to.Judges have lifetime tenure.They have permanent salaries exactly so that they can make their decisions free of political pressure.They don’t have to care.In fact, they shouldn’t care what politicians are saying about themselves.
What’s going on in the courtroom is much more important, it seems to me.Judge Boasberg has issued now a TRO [temporary restraining order].It’s just been upheld by the D.C. Circuit Court of Appeals.No more flights are to take off under the Alien Enemies Act.People can be deported under existing immigration law outside of that act, and the government has said it will comply with that order.12And so, I think that alleviates this idea that there are actually going to—that the president or the executive branch was actually going to defy a judicial order, which I agree would be a redline that it should not cross.
There’s only one case that I know of where a president refused to obey a judicial order, and that was [President] Abraham Lincoln at the start of the Civil War when the chief justice of the United States, Roger Taney, the author of Dred Scott, ordered Lincoln to release Confederate prisoners because he said: We’re not at war yet.If they’re criminals, you can’t hold them without charge.President Lincoln, I think wisely, refused to obey, but that’s because the existence of the country was at stake.That might be the only circumstance, it seems to me, where a president could refuse to obey an incorrect judicial order.
Here, we’re nowhere near those circumstances.
You said that rhetoric about judges is pretty common on both sides of the aisle.In this case, though, the chief justice felt it was necessary to weigh in on it.What did you think of that?Is there a point where that rhetoric on either side would be inappropriate, and has this administration gone beyond that point?
First, this rhetoric had been going on for a while now, where you had people saying that they were going to hit Justices [Neil] Gorsuch and [Brett] Kavanaugh if they overturned Roe v. Wade.You even had an assassination attempt on Justice Kavanaugh.You had the Democrats saying they wanted to pack the Supreme Court.You had President Biden saying he wanted to impose term limits on justices, so this rhetoric has been going on for a while.I think they’re fair game.I think justices and judges are fair game for political criticism of all kind.I actually wish Chief Justice Roberts had not publicly come out and said: Impeachment is not the proper remedy for incorrect decisions.13Just use the normal appeals process.
Again, I think it’s better if judges act as if they don’t hear anything going on in the political world and instead tend to their own garden.So I think judges should just let the political system and the rhetoric go its own way.Now, if there are actually attacks on justices, like the assassination attack on Justice Kavanaugh, then I think the government has to act to protect them.But I don’t think there should be any hold, any limits on the free speech that goes around about what judges do, just like there aren’t on presidents and members of Congress.
Chief Justice Roberts and the Supreme Court
How consequential a moment is this for the Supreme Court as these issues come up in a really divided a country and one where their own legitimacy is questioned by people on both sides of the aisle?
I think this is going to be an important time for the Supreme Court.Part of this is the decisions of the Supreme Court itself, particularly the Roberts court on executive power, are being used as justification for President Trump’s effort to break the bounds of the Watergate reforms.But also, the cases themselves are going to come up to the court.I think that the court, of course, no matter what it’s going to do, the decisions are going to be political acts.They’re going to be criticized by … the losers.They’re going to be praised by the winners.It can’t help but have political consequences.
But I think if the court sticks to its guns, it treats the decisions as legal questions, as constitutional questions, issues carefully considered opinions as it does, that’s all it can do.What I worry about is that pressure from one side or the other will affect the way it makes decisions, and those decisions will be altered in some way.That will only encourage more efforts to exert political pressure on the judiciary rather than stick to their job, decide the cases.They’re hard questions, but decide them as best they can, issue their opinions, and then do their job.
What's Ahead in Washington?
Is this a moment, the equivalent of after Watergate, where the balance of power and the constitutional order is being rearranged?Is that what this Trump administration is forcing to the forefront at this moment?
They’re trying.But one thing that—and I’ve written a piece and just published it yesterday about this—is efforts to use the executive power alone, without Congress, are going to be fleeting, because anything Trump does, the next Democratic president can reverse.14To actually achieve some really meaningful change in the balance of power, change in the way the president and Congress in the course interact, Congress has to codify it by statute.And so presidents can go out far, but it’s going to be fleeting unless the presidents can get a Congress to cooperate.
14
I think I’ve asked you already, but I want to ask it again, because I’ve talked to a lot of people who are afraid in Washington—lawyers, journalists—who feel that the president seeing things in personal ways, using executive power but also more of a bully-pulpit power is cowing people into not doing what they would otherwise do.It is not a strictly constitutional question, but is there a point where you would be concerned, where that system that was built isn’t enough for what might happen?
I place my faith in the people we elect to office.I have faith in the people we have in government.Presidents make policy decisions.They may be good ones or bad ones, and they’ll get carried out.But if presidents try to turn the office into something that’s about their personal interests, then I expect people in the executive branch, as I was saying, not to carry out the orders or resign from office if they disagree.I expect Congress to conduct investigations and to conduct oversight, maybe impeach presidents if they go too far and they cross the line between—from the office into just benefitting themselves personally.
We have had a lot of presidents in our history.We’ve had some bad presidents.Maybe we’ve had presidents who have used the power of the office to benefit themselves or haven’t had the right vision in the public interest, but I think our system has worked pretty well.And I think our system is corrective for anybody who’s been in office like that, and I don’t think that Trump is going to break our constitutional system that we’ve had all these years even if, as his critics fear, he is really out for just his own individual interest rather than the national interest.
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