The attorney perhaps best known for writing the memos that President George W. Bush used to justify torture by waterboarding enemy suspects after the 9/11 terror attacks, and stating a president could be justified in crushing the testicles of a young boy to obtain information from his parent, is under fire again.
John Yoo, a professor of law at the University of California, Berkeley, served as the deputy assistant attorney general in the U.S. Dept. of Justice’s Office of Legal Counsel (OLC) during the Bush administration.
On Monday, Yoo declared Donald Trump, because he is an ex-president and a candidate for the office of president, should not be prosecuted for the 37 criminal felonies he will be arraigned on on Tuesday.
Yoo warned that no other former president has ever been prosecuted, while neglecting to mention that no other former president was ever known to commit any federal crimes, certainly not crimes under the Espionage Act, crimes of obstruction, or other egregious attacks on America’s national security.
Fox News host Neil Cavuto told Yoo, “But you did say that there was a dangerous leap here, on the part of the Biden administration, quoting: ‘officials must explain why prosecuting Trump for misuse of classified documents justifies disregarding two centuries of constitutional practice.’ I could go into it but you’re far more eloquent than I.”
“But one of the things you stipulate, Cavuto continued, “is that this type of situation with a former president is an entirely different can of worms. Maybe you can explain that and the leap – justified or not – on the part of this administration, the Justice Department, to pursue this case against Donald Trump.”
“First,” Yoo declared, “I never want to be out of the camp Bill Barr is in.”
“Attorney General Barr is completely right about the facts here. If anyone other than a president were being charged for this kind of conduct, with this indictment, with this evidence, I would be telling the defendant to seek an early and quick plea bargain. I would not want to go to trial with this kind of recorded evidence, video evidence, photographs. It’s pretty damning,” Yoo acknowledged.
“But what should give us all pause, is that we’ve never prosecuted for a federal crime a former president before,” Yoo said.
“We’ve never prosecuted the candidate, the likely candidate for the other major political party, who’s actually leading the incumbent in the polls right now,” Yoo continued, appearing to suggest America is not a nation of laws because the law should be applied differently based on the defendant’s current and prior political achievements and aspirations.
“This is like crossing the Rubicon,” Yoo declares, “and I say, ‘Rubicon’ because remember, Julius Caesar crossed Rubicon and by doing that, broke institutional rules of his day, brought about the fall of the Roman Republic. Similarly here, we’re breaking an institutional norm that has been there since the beginning of our country, which is, ‘leave former presidents alone. Don’t use criminal prosecution in a way that interferes with elections.'”
“Let the people decide in the next 2024 election, whether Donald Trump should hold office – don’t distort it with prosecution and worse than that, make future presidents worry about being prosecuted for their tough decisions, or even worse yet, begin a cycle where presidents start prosecuting their predecessors from the other party.”
Yoo is suggesting that Donald Trump’s alleged mishandling, if not theft, of hundreds of classified, secret, and top secret documents from a wide range of federal government agencies, documents that pertain to our national defense, the military capabilities of our armed forces and the military capabilities of another nation’s armed forces, and nuclear secrets – in short, some of the most critical classified information this country possesses, was a “tough decision,” perhaps, like, say, deciding if torturing a suspect or their child to possibly obtain information is legal or ethical.
Seth Masket, a professor of political science and the director of the Center on American Politics at the University of Denver, responded to Yoo’s remarks.
“Ford pardoned Nixon precisely because this norm does not exist,” he said, referring to the “norm” of not prosecuting former Presidents.
Historian Kevin M. Kruse adds that Ford “literally says this in the pardon itself!”
Kruse adds: “1. Everyone, including Nixon, thought it was likely that he would be prosecuted 2. The Watergate Special Prosecutor drafted memos on it (see below) 3. Ford’s pardon text *explicitly* notes that Nixon was liable to be prosecuted.”
MSNBC’s Chris Hayes also weighed in, saying, “The torture guy is wrong here just simply as a matter of history. Nixon was almost certainly going to be prosecuted after leaving office and was only saved by Ford’s wholly unprecedented blanket pardon.”
Former Associate White House Counsel Ian Bassin served up a mockery trifecta.
Mocking Trump’s claim he could “shoot someone on Fifth Avenue” and not lose supporters, mocking the concept that regardless of what they do no former president should ever be prosecuted, wrote, and mocking Yoo’s apparent support of torture as legal, Bassin wrote, “I mean, if it’s ok for us to torture people, why not make it ok for certain designated persons to shoot people on 5th Avenue without legal consequences.”
Watch Yoo below or at this link.