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 Axios 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 that flout federal law.
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.
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 against torture.”
Memos drafted by Yoo were used for justifying waterboarding and other forms of torture on terrorism suspects in CIA “black sites” around the world.
In a book titled Defender in Chief, due to be published next week, Yoo argues that Trump is restoring the powers of the presidency envisioned by the framers of the US constitution.
In a June article in the National Review, he wrote that a supreme court decision which 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. And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two.”
Yoo’s article was later spotted on Trump’s desk in the Oval Office.
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.”
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.”
Yoo did not immediately respond to a request for comment.
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.
“Our failure to hold him (and other torture-promoters) accountable after the Bush administration enabled him to continue to rot the legal checks and balances around the presidency today.”