Just as the publication of another batch of his memos—repudiated by the Bush Justice Department just as it was handing the keys over to its successor—is causing quite a stir in legal circles, John Yoo appears in an interview in the Orange County Register.
He is not asked about the basis for his conclusions that the president’s commander-in-chief powers trump the First and Fourth Amendments, perspectives that yesterday caused Duke University law professor Walter Dellinger to say he could “never get over how bad these opinions were,” while Yale’s Jack Balkin said they laid out a “theory of presidential dictatorship.”
But Yoo musters some defense nevertheless:
These memos I wrote were not for public consumption. They lack a certain polish, I think–would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice.
Of course, under the Judiciary Act of 1789, OLC memos fix government legal policy and are binding on all government agencies. The Justice Department has made a practice of publishing them for more than a century. But Yoo does not feel constrained by these facts when he speaks with the popular media; the facts might complicate things.
Does Yoo mind the withering criticism he’s taking over his secretive scribblings?
I think the job of a lawyer is to give a straight answer to a client. One thing I sometimes worry about is that lawyers in the future in the government are going to start worrying about, ‘What are people going to think of me?’ Your client the president, or your client the justice on the Supreme Court, or your client this senator, needs to know what’s legal and not legal. And sometimes, what’s legal and not legal is not the same thing as what you can do or what you should do.
I hear a distinct echo of Carl Schmitt at home in San Casciano in the post-war years explaining why there was nothing wrong with his legal engagement in the prior decade. But no doubt about it, any wannabe dictator would love to have John Yoo as his lawyer. Whether he actually uses the dictatorial powers Yoo gives him, bulldozing over the Constitution, is entirely up to the wannabe dictator, says John Yoo.
Yoo appears ready to make a permanent move to Orange County, and he has nothing but contempt for Berkeley, where he still holds a tenured professorship. “Berkeley is sort of a magnet for hippies, protesters and left-wing activists. So I’m not surprised that being one of the few recognizable conservatives on campus that I would generate a lot of heat and friction.” He explains that he was lured to Chapman University to teach as a visitor by his good friend (and fellow Clarence Thomas clerk) John Eastman, the law school’s distinctly right-leaning dean.
But he doesn’t explain one curious fact. He was originally announced as the “Bette and Wylie Aitken Distinguished Visiting Professor”—the holder of a specially endowed professorship set up by Chapman trustee and well-known attorney Wylie Aitken for a “prominent legal scholar whose expertise will compliment the strengths of the law school’s existing class offerings.” But it subsequently became clear that Yoo did not receive this appointment. Why not, I wonder?
Update, March 10, 2009: A letter from Dr. Eastman corrects the section above.