Screw Yoo: the Turtle, the War Criminal and the Mutant who would be King

NinaIllingworth October 18, 2019November 5, 2022 Amerikan Musik, Andrew Johnson, Bill Clinton, checks and balances, constitutional law, Constitutional originalism, Deep Dives, despotism, dictatorship, Donald Trump, Essays, FA1, fascism, Federalist Society, Fox News, GOP, James Madison, John Yoo, Justice, law, lawless state, Mitch McConnell, MP6, Nancy Pelosi, obstruction, Op-Ed, Opinion, Politics, Republican, Richard Nixon, Senate, the GOP is obstructionist, Torture Memos, Trump impeachment, turtle boy, war criminal, WD7

Editor’s Note: although I’m still struggling to juggle enough time to get back to a more rapid pace of writing, I have (despite my wishes otherwise) frequently found myself rubbernecking the bizarre and increasingly alarming Trump impeachment (or even impeaching inquiry) debate.

Deep down inside I’m still hoping to avoid writing thousands of words about an endeavor I remain convinced is going to end in failure unless Bernie Sanders is the Democratic Party nominee in 2020; after some Morlock put John Yoo on my TV screen to commune with the dead on behalf of yet another fascist President however, I felt the urgent need to return to the topic.

Screw Yoo: the Turtle, the War Criminal & the Mutant who would be King

While spending my early afternoon crashing through the scream sheets as I am want to do, I came across a particularly absurd Fox News clip in which law professor and former Bush administration Justice Department official John Yoo actually said, and I quote:

“What the framers thought was the American people would judge a president at the time of the election. They would never have wanted impeachment within a year of an election. It’s up to the American people. If the American people think Trump has done wrong, they don’t have to return him to office.”

Ok but; who is Yoo?

Okay so first let’s dispense with John Yoo; who is a fascist, being interviewed by another fascist (Laura Ingraham) on a news network (Fox) that is at best supportive and sympathetic to fascism if it isn’t outright fascist itself. So who the fuck exactly is John Yoo? He’s the Department of Justice minion who penned the infamous “Torture Memos” in 2002 that were used to provide speculative legal cover for George W. Bush’s CIA torture program; which was, you guessed it, a violation of both the U.S. Constitution and the laws built into international treaties previous American governments had signed on to.

So right off the hop we have three pretty good reasons to disregard anything Yoo says about Trump’s impeachment – he’s a batshit fascist Republican, he’s a former member of an Administration that also should have seen its President impeached and he’s already argued for the legality of heinous and quite frankly inhuman constitutional violations. This guy shouldn’t be on your television offering nonsense legal opinions based on his speculations about the “intent” of the framers; he should be rotting in fucking prison.

Furthermore history demonstrates that Yoo’s opinion is garbage; impeachment proceedings have only begun against three presidents in U.S. history and in all three cases Yoo’s argument doesn’t hold up. In 1868, the process of impeaching Andrew Johnson began a mere nine months before the end of his term; while the impeachment process for both Richard Nixon and Bill Clinton began during their second term when re-election would have been impossible. In fact, impeaching a U.S. president isn’t even really a question of legality anyway; there is absolutely no definition whatsoever anywhere in the Constitution or the U.S. legal code identifying what does or doesn’t count as “high crimes and misdemeanors” – impeachment is an inherently political process; Congress can try to impeach a president for nearly any damn thing it wants to, including lying about a blowjob. Since the Constitution mentions both elections and a completely political impeachment process left solely to the good judgment of America’s elected representatives, it simply does not follow that the framers “intended” one to replace the other; in fact, James Madison argued exactly the opposite. Clearly then, impeachment is not tied to, nor meant to be replaced by, the electoral process.

Frankly the entire “originalist” framework of Yoo’s argument (and virtually all other originalist arguments about constitutional law) is also wrong because if the U.S. Constitution was intended to be “frozen in time” based entirely on the understanding of the framers themselves, it wouldn’t contain the ability to *amend* the Constitution as found in Article V. All of which is setting aside the fact that there is literally nothing written in the U.S. Constitution about “election years” as it pertains to impeachment; which means that astoundingly, Yoo is arguing that Trump shouldn’t be impeached in an election year because of the original intent of the framers – intent that apparently only he can divine because there’s no evidence for it whatsoever in the original document. Some might call that having your cake and eating it too but I’m more inclined to think of it as pissing on my head and telling me it’s just rain.

Do I even have to bring up the fact that technically, the 2020 U.S. Presidential election was more than a year away even as Yoo was spewing this fanciful garbage on television? Right, so let’s move past Yoo, Ingraham and the Der Sturmer Lite news network and look at the bigger picture in American politics.

There Is Nothing Special About “An Election Year”

Did you happen to notice the familiar phrasing of Yoo’s argument, in specific the “in an election” year part? All seven liberals who still read my blog will be nodding their heads now as they remember in vivid detail the absurd argument Mitch McConnell used to deny a vote on (admittedly poor) Obama SCOTUS appointee Merrick Garland while hiding this bald-faced abuse of power behind the logic of “throwing the decision back to the voters” – an obstruction that allowed Trump to appoint the next two SCOTUS judges and achieve a 5-4 (and counting) Federalist Society approved, revanchist right wing majority.

I mention this neither because there’s any point in demonstrating that Mitch McConell is obviously a fucking hypocrite cracker sleezebag, nor because I think Garland had a snowball’s chance in hell of being nominated even if he got a Senate hearing, but rather to talk about the twisted and terrifying logic that emanates from the GOP’s “in an election year” argument; an argument that thanks to Democratic Party incompetence and the self-serving power politics of men like McConnell and Yoo, is about as close to “facts on the ground” precedent as it possibly could be without being an actual law.

Look we can debate until we’re blue in the face about the delegation of authority between the executive, legislative and judiciary branches of American government, whether or not the President of the United States can be criminally prosecuted under the U.S. legal code and what does or doesn’t constitute a “legitimate impeachment inquiry” but at the root of the GOP’s argument is the complete shattering of any and all “checks and balances” on the President or the majority party in the Senate, and to a lesser degree the House of Representatives.

When you strip away the flowery language about “framers” and “intent” what Yoo is effectively arguing is that a President or administration can do pretty much whatever the fuck it wants “during an election year” (a phenomenon that occurs once every two years by the way) because “the voters will decide” – thus turning the electorate into a peculiar sort of police, judge and jury that must pass judgement on Trump’s guilt and yet has no power to punish him in any real way except by sending him back to his corruption-fueled eponymous empire. Meanwhile the sum of McConnell’s shifting arguments on SCOTUS hearings and election years essentially amounts to justifying both oppositional obstruction or partisan complicity in a President’s abuses, violations and yes, crimes based entirely on the theory that the will of the electorate somehow provides the U.S. Senate with this exact same blanket, above-the-law mandate.

This is of course completely insane because spun out to their logical conclusions, these ideas result in alternative periods of either absolute gridlock or a ruling party dictatorship, since essentially there’s no practical or logically defensible difference between turning an election into a criminal trial or open referendum on all of an administration’s past misdeeds from year one to year two, or year three either. This in turn replaces the oversight (and impeachment power) of the legislative and judicial branches with an electorate that has no investigative resources, lacks the power of subpoena and for the most part has no understanding of constitutional law or how the government operates. In other words, we’re talking about a process that is going to actively encourage corruption, not prevent it; in fact, you can make a pretty good argument that it already has – after all, Trump has (seemingly successfully) argued in the court of public opinion that his election after refusing to release his tax returns means he no longer has any legal obligation to do so as POTUS.

Mitch McConnell Is Fascism’s Handmaiden

Furthermore, I can’t figure out if Mitch McConnell is a moronic fascist, an absolutely amoral and power-hungry sociopath or all of the above, because by successfully pushing this flavor of argument, he’s ultimately codifying a sort of “rule by mob” system of government; a system that American elites have always disingenuously invoked the fear of to attack and undermine the power of democratic institutions. At that point there’s no law, restrictions or process of accountability in government anymore; just votes – which means you can do anything and everything so long as you’re in power and you win that next election; and even if you don’t win at the ballot box, it’s not like you can’t just try to pardon yourself and your accomplices on the way out the door. In theory, this will eventually result in everything, every single act undertaken by a party that controls both the White House and the Senate (criminal, political or otherwise) being lumped into an all or nothing judgement at election time, and there’s no penalty for losing, except maybe you have to take a job in the private sector!

This type of legal and administrative environment is absolutely how a country finds itself progressing from reactionary right wing populism and concentration camps, all the way to actual dictatorships and mass graves. And the really fucked up part of all this is I’m not at all sure folks like McConnell, Yoo and Trump are actually changing much here in a practical sense – this is objectively how the government in our corrupt oligarchy already works if we’re being honest. But by uniting that practical lack of oversight with explicit justification for crimes the GOP (or its president) are committing however, you’re openly crystallizing an effectively lawless state in which the names of the tyrants might change every few years but the power to violate the law and Constitution remains absolute in the meantime.

Ultimately the lesson here is probably that it’s not a very good idea to base the “checks and balances” in your system of government on understood bipartisan sensibilities and a series of governmental “norms” because in the end, you and your representatives in government have to constantly defend those norms. If you don’t want to, or are unable (looking at you, Democratic Party) then the office of the Presidency essentially assumes the right to violate those norms as a permanent power, as does each of his predecessors under the guise of simply obeying precedent. That’s how Reagan’s secret Latin American narco wars became Bush Sr’s “anti-narcotics” invasion of Panama, and how George W. Bush’s “War on Terror” mass surveillance program became President Obama’s drone assassination program and communications panopticon – once a power is conceded to the office of President, future occupants of the White House have shown little interest in relinquishing it, regardless of party affiliation.

Look, Trump is a crook gangster, Yoo is a babbling puppet and McConnell would knife his own mother to hang onto the power behind the Oval Office for an extra ten minutes but in the long run the greater threat is probably the underlying logic each of these selfish monsters are employing to keep the good times rolling in fascist Disneyland – tolerating this argument today all but ensures that eventually someone far less greedy, stupid and self-sabotaging than Trump will use that logic to justify atrocities and abuses we have not even begun to imagine yet today.

Maybe someone ought to explain that to Nancy Pelosi while she’s voguing her way through the tough decision about whether or not to even open an official inquiry into the mere possibility of impeaching Downmarket Mussolini.

– Nina Illingworth

Independent writer, critic and analyst with a left focus.

You can find my work at ninaillingworth.com, Can’t You Read, Media Madness and my Patreon Blog.

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