Accidental Defender of the Constitution

Accidental Defender of the Constitution
Scott Applewhite)

Decades from now, when historians assess Donald Trump’s presidency with sobriety and dispassion, the ironies are apt to stand out most. Donald Trump is the populist who lost the popular vote, owing his ascendancy to the Electoral College, an institution designed to temper popular excesses and which Trump himself, while pondering a presidential bid in 2012, rebuked as “a disaster for democracy.” Trump has been condemned as the Constitution’s scourge by progressives for whom the Constitution is mostly a nuisance to evolve beyond, framed by white racists in a time before Wokeness. Trump is the president who upheld the rule of law by firing the FBI director. He submitted to investigation by a special counsel whom he reviled but who nevertheless cleared him. Trump was impeached anyway by Democrats who were pushed into the exercise by partisans. But Democratic partisanship proved so devoid of appeal outside the activist Left that impeachment, though it happened just a few months earlier, rated nary a mention in the Democratic National Convention.

Is it any wonder that these four years have aged most of us tenfold?

We’re not through with the ironies, though. For present purposes, here is the most striking one: Through all of this, President Trump’s most compelling defender may be John Yoo, a brilliant conservative thinker who appeared to have both feet firmly planted in Camp Never Trump when the president took office in 2017.

John Yoo is the Emanuel Heller Professor of Law at the University of California’s Berkeley Law School, where it is not easy to be a conservative academic, but anti-Trumpers are welcome. Professor Yoo is a nonpareil scholar of the presidency—in particular, of executive power as conceived in the Constitution and practiced through more than two centuries. He is a prolific author, his grasp of his core concentration immeasurably enhanced by service as a high-ranking Justice Department official. He played a pivotal role in national security policy development in the post-9/11 era, when President George W. Bush grappled with the vexing challenges of international jihadism, often with ferocious partisan opposition in Congress.

It is fair to say that Defender in Chief: Donald Trump’s Fight for Presidential Power is a book Yoo never thought he’d write. Fair because he says so himself, right up front: “If friends had told me on January 21, 2017, that I would write a book on Donald Trump as a defender of the Constitution, I would have questioned their sanity.”

But write one he has, and it is stellar.

Impeachment is not the only reason that Donald Trump has had to fight for the right to wield the presidential power he won in 2016. He has had to fight for it against an opposition party that has labored to cast doubt on his legitimacy; against a judiciary teeming with progressive activists who have portrayed him as sui generis and thus without entitlement to the comity and presumption of regularity accorded to other presidents; and against the sprawling administrative state, including executive branch agencies he nominally controls.

Yoo’s thesis is that, by waging these battles, Trump has safeguarded the presidency as the Framers envisioned it when they crafted our founding law. Two things must be borne in mind about that.

The first is that this is not Trump’s conscious objective. Even the most ardent Trump supporters acknowledge that their man, a non-lawyer, is no expert on the Constitution, let alone on the Framers’ conception of executive power. As Yoo recounts, Trump could only guess at the number of articles in the document (it is seven, not the eleven or twelve he estimated). It is not unheard of for the president to mangle fundamental principles in the stray tweet or ad-lib. The euphemism customarily attached to him is that he is “transactional”; he does not look at politics, let alone the constitutional framework in which politics plays out, in ideological or theoretical terms.

Yoo is quite right that, contrary to his political opposition’s dire predictions and studied outrage, Trump has turned out to be a staunch defender of the Constitution. His excrescences—some necessary disruptions of Washington’s way of doing business, some the inevitable fallout of unsavory character traits—have “broken political norms.” Yet, Yoo stresses, Trump “did not seek to break constitutional understandings.” Instead, “[h]e has returned to the Framers’ original vision of the presidency as an office of unity, vigor, and independence.” In so doing, Trump “may have done the nation his greatest service” by “securing the benefits of an energetic executive for his successors.”

Perhaps so. This, however, is an accident of the Framers’ design. Trump’s opponents have sought to undermine him in abusive and novel ways. He has taken refuge in the Constitution because its authors fashioned it as the antidote to such antics. Its system of divided powers and competing checks is based on the assumptions that governmental officials will exceed their authority at the expense of other officials, and that the aggrieved must be empowered to defend themselves. Trump’s concrete experience bears out those prescient assumptions. He did not start out with a purpose to vindicate our founding law. He inexorably gravitated to it as he sought to vindicate himself.

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