Acclaimed legal scholar offers insights on the barrage of lawsuits against Trump
John Yoo, the Emmanuel Heller Professor of Law at the University of California, Berkeley, lectured on the context and legal theory behind the myriad of lawsuits currently facing former President Donald Trump. The Center for Citizenship and Constitutional Government (CCCG) sponsored the April 19 lecture titled “Trump’s Legal Troubles.”
Yoo studied law at Yale University, graduating in 1992. His work, particularly as Deputy Assistant Attorney General for the Office of Legal Counsel from 2001 to 2003, helped to shape the American response to radical Islamic terrorism following 9/11.
The “Torture Memos,” a set of legal memoranda Yoo drafted in 2002, cleared the way for the Bush Administration’s use of controversial interrogation methods such as waterboarding during the Global War on Terror. Yoo also authored memos backing the Bush-era NSA’s wiretapping of U.S. citizens without obtaining a warrant.
He has published several books on presidential authority, most recently his 2020 book Defender in Chief: Donald Trump’s Fight for Presidential Power. Yoo argues that Trump’s approach to executive power is most in line with the original vision of the Founding Fathers. His interpretation of Article II of the Constitution, under the unitary executive theory, holds that the President of the United States is not accountable to Congress in his duties as Commander-in-Chief.
Before his lecture, Yoo sat down with the Rover for an interview. He first praised the lack of pro-Hamas demonstrations on Notre Dame’s campus in the wake of the Israel-Hamas war. “Notre Dame, because it’s a school rooted in religious tradition, could help lead these colleges that clearly don’t know what to do; these university presidents are clueless,” Yoo said.
When asked about the potential impact of pending litigation against Trump, Yoo argued that “any president wary of politically motivated charges down the road won’t act.” Such prosecutions, he claimed, threaten the president’s ability to enforce laws and conduct national defense.
Yoo expanded further on this idea in his lecture. He asked the audience, “Do you worry that presidents will start to worry about being sued when they have to make the toughest decisions for the country?”
Describing the risk of having an executive handicapped by fear of later prosecution, Yoo continued: “My worry is that we start to have presidents who become risk averse. … Do you want to have presidents who think like insurance agents?”
Next, he turned to provide an analysis of each of the individual legal battles facing Trump. First, he spoke about Manhattan District Attorney Alvin Bragg’s prosecution in New York. The case involves “hush money” paid to adult film actress Stormy Daniels by Michael Cohen, Trump’s former lawyer. Bragg’s case against Trump rests on the accounting of the payment as “legal fees,” which Bragg contends actually constitute campaign spending. Because Trump did not report the spending as such, Bragg claims that the former president violated federal campaign finance regulations.
Yoo finds two problems in the case. First, the prosecution’s first witness is Trump’s former attorney, Michael Cohen, a convicted felon and perjurer. “This is not who I would be leading off the trial with,” said Yoo. Second, Yoo did not agree with the idea that—even if the payment somehow qualifies as campaign spending—Trump still is not guilty of a crime. He based this claim on the allowable use of campaign funds for extraordinary political expenses, for which he believes this payment would qualify. “Even if he charged his campaign for it, he wouldn’t have been committing a crime.”
Yoo also takes issue with Bragg, a New York state official, enforcing U.S. federal campaign law. He contended that Bragg is “not allowed to try and prove a federal crime. The Justice Department looked at this, and they decided not to bring a case.”
Turning to the next case, Yoo addressed the ongoing election interference trial in Georgia prosecuted by Fani Willis. He humorously referred to the case as “Real Prosecutors of Atlanta,” citing alleged conflict of interest issues between Willis and Nathan Wade, her chief counsel, with whom she was romantically involved and to whom she had transferred thousands of dollars in hidden payments.
“As a prosecutor, that was one of the most embarrassing things I have ever seen,” Yoo said. He viewed the scandal involving Willis as eroding public faith in the legal system and took aim at her characterization of the Trump campaign as organized crime: “I have a lot of difficulty with that, and I think President Trump has a very strong free speech argument on appeal should this case ever get to trial.”
The former president also faces charges of mishandling classified documents, the case which Yoo considers to be “the easiest one for the U.S. government to win against Trump.” The prosecution rests on the claim that Trump mishandled classified documents after his term. Yoo takes issue with Trump’s claim of selective prosecution.
Trump has argued that both the Clintons and President Biden have retained and mishandled classified information as well without facing prosecution. Yoo observed that Trump “resorts to the easy out for any Republican, which is to say ‘What about Hillary?’” Still, Yoo does not believe the trial will occur before the November general election, and thus Trump is not in danger of incarceration before then.
“The one trial I think is worthy and is important is the January 6 trial,” Yoo said. Federal prosecutor Jack Smith is trying to prove that Trump committed insurrection by attempting to overturn the results of the 2020 election through numerous means. Yoo finds fault with the three charges levied against Trump.
Yoo described the first charge, committing fraud against the U.S., as “very weak” because it is usually used against firms that overcharge the government. He also labeled the second—obstructing a congressional proceeding—as dubious due to lack of concrete evidence that Trump interfered with Congress. The third charge, invalidating voting rights, is based on a statute formerly used to prosecute Jim Crow-era voting booth obstruction. Yoo believes this “fits the least well.” Importantly, “The prosecutor here charged Trump with neither insurrection nor sedition.”
Trump’s legal affairs remain a looming concern for the upcoming election, and Yoo’s articulation of the legal climate surrounding the trials provided valuable insights on jurisprudence that could have enduring ramifications for American democracy.
Sam Marchand is a freshman studying political science and finance from Beaumont, TX. He sorely misses Dr. Pepper, which is unavailable in the dining halls, and squanders much of his spare time by aimlessly reading the Current Events section of Wikipedia. He can be reached at smarcha3@nd.edu.
Photo Credit: PJ Butler
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