Who said there are no second acts on the American public stage? The good fortune of Donald Trump’s narrow escape from an assassin is a powerful recent exception to that rule, along with his GOP nomination this week after his 2020 election loss. Now Republicans are pressing their luck, bringing back Berkeley law professor John Yoo who is attempting to hitch his wagon to the second act of Donald Trump.
Yoo first came to prominence on the national stage two decades ago, in 2002, when he authored a series of infamous memos providing legal justifications for the Bush administration’s post-9/11 use of torture. Recently, Yoo has again broken out of the pack of the right-wing chattering class and returned to the limelight as a regular commentator on Fox News.
Because of his ardent defense of former President Trump and advocacy of revenge and reprisal as legitimate tools in a second Trump Administration, as Rolling Stone Magazine notes, “Trump and his allies are increasingly smitten with John Yoo’s work and his views on punishing their enemies and expanding presidential power.”
They may well be drawn to Yoo’s contention that prosecutors who investigated and charged the former president “have to be prosecuted by Republican or conservative DAs exactly the same way for exactly the same kind of things until they stop.” Yoo’s May 29 essay in the National Review laid out that case in detail.
According to Rolling Stone, one of Trump’s advisors labeled that essay “The Vengeance Memo,” a playful, if chilling reference, to Yoo’s Torture Memos.
Along with the authors of Project 2025, Yoo is laying the groundwork for an assault on constitutional governance and making the case for his appointment as Attorney General or to the United States Supreme Court should Trump win in November.
On July 8, Yoo used a startling point of reference to expand on his vision of what a second Trump Administration should do. “If we’re not going to become a banana republic,” Yoo said, “Unfortunately, we’re going to have to use banana republic means.”
You could be excused for thinking that Yoo mistakenly inserted the word “not” into that sentence. But he made no such mistake. As the New Yorker’s Robin Wright explains, “Over the past century, ‘banana republic’ has evolved to mean any country (with or without bananas) that has a ruthless, corrupt, or just plain loopy leader who relies on the military and destroys state institutions in an egomaniacal quest for prolonged power.” Wright reminds us that one of their favored means is to use the justice system to try to crush and intimidate political rivals.
Trump’s advisors admire Yoo because, as one told Rolling Stone, “He knows how to get things done.”
Before looking more closely at Yoo’s thoughts about the use of “banana Republic means,” let’s look at the things he has “gotten done” in the past.
Thirty years ago, Yoo was a rising star in the conservative legal firmament. As the journalist and podcaster James LaRock argues, “He did everything a rising right-wing lawyer should: clerking for a Reagan nominee on the D.C. Circuit, and then for Justice Clarence Thomas on the Supreme Court, and then working on the Republican-led Senate Judiciary Committee.”
Along the way, Yoo laid out an expansive vision of presidential power that turned the idea of separation of powers and checks and balances in a constitutional Republic on its head. He argued that any president had the authority to start wars unilaterally.
As LaRock reports, in 2000, Yoo “wrote glowingly about President Bill Clinton’s authority to order American troops into what was then Serbia, as well as Clinton’s other military actions in Sudan, Afghanistan, Somalia, Macedonia, and Rwanda. Congress didn’t usually authorize these missions.”
Not surprisingly, Yoo took an “originalist position” and argued that “unilateral executive war power” could “find support in the Constitution’s text and original understanding.” He mocked scholars whom he said, “whined about Congress’s enumerated responsibility to declare war,” saying that they had ‘failed to describe reality.’”
In July 2001, President George W. Bush appointed him Deputy Attorney General in the Office of Legal Counsel, where Yoo would show what he could get done when he authored the Torture Memos. As the superb legal analyst Dahlia Lithwick says, those memos “redefined ‘severe pain or suffering’ by cherry-picking language from a health benefits statute to argue that ‘severe’ pain must be ‘equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.’”
Yoo provided specious legal cover for the Bush Administration’s post-9/11 use of waterboarding, prolonged sleep deprivation, shackling in stress positions, and exposure to extreme cold and heat. Those un-American techniques were used against any Muslim captured on foreign soil and suspected, often wrongfully, of being a terrorist.Per his memos, those methods might even include the “maiming, drugging or applying ‘scalding water, corrosive acid or caustic substance’ on detainees,” according to Time Magazine. Lithwick rightly called Yoo’s handiwork the “the lowest low point in post-9/11 legal thought.”
The Justice Department’s Office of Professional Responsibility later recommended that Yoo be referred for bar discipline, but higher-ups gave him a pass. And what do you know? Like others, when lawyers escape consequences for misconduct, they show up later with more of the same.
Yoo’s record reminds us that the law can be misapplied and used as an enabler, rather than as a restraint on unlawful power. Now Yoo is back in the good graces of powerful people, trying again to use his well-cultivated skill in manipulating the law in service of what he takes to be Trump’s political agenda. Yoo won favor with the former president by criticizing the New York hush money trial, seeing it as a damaging precedent while echoing the usual, right-wing talking points.
As he wrote, "Make no mistake, Democrats have crossed a constitutional Rubicon. For the first time in American history, they have brought criminal charges against a former president. . . . To prevent the case against Trump from assuming a permanent place in the American political system,” Yoo urged Republicans “to bring charges against Democratic officers, even presidents. A Republican DA… will have to investigate Joe Biden for influence-peddling at the behest of a son who received payoffs from abroad.”
And on July 1, Yoo took to Fox News to crow about the radical Supreme Court majority’s presidential immunity decision. “Donald Trump today won the most important decision of any President before any Supreme Court at any time in our history” Yoo claimed.
If Yoo has been mounting a “charm offensive” aimed at Trump’s inner circle, it appears to be working.
“Since late May,” Rolling Stone reports, “some attorneys and Trump confidants have briefed Yoo’s legal theories and writings directly to the ex-president, who in turn has privately lauded Yoo’s recent defenses of Trump in conservative media, particularly on Fox News.”
There’s a recent model for someone auditioning to be Trump’s Attorney General. It happened in June 2018 when private citizen William Barr circulated a memo attacking the Mueller investigation. That memo was music to Trump’s ears; six months later, he nominated Barr to replace Jeff Sessions. Yoo certainly watched that happen.
Responding to the report of his influence in the former president’s orbit, Yoo issued a for-public-consumption coquettish non-denial denial of his ambition. As he told Rolling Stone:
I am bemused that Trump aides are saying that my writings have any influence in Trump’s inner circle. I haven’t discussed these issues with anyone on the campaign or legal teams or Trump himself.
He may be bemused. We should not be.
American voters need to pay careful attention to what Yoo is saying. In November, it will be up to us to decide if we want to follow the course he is charting.
