Matters Of Policy & Politics: Supreme Concerns

which is hoover.org. Click on the tab of the top  of the homepage. It says Commentary. Head over to where it says Multimedia and it will  come about a dozen or so audio podcasts, including this one, at the very top of the  list. That's because I try to get the top of the talent at the Hoover Institution, including  today's guest and that would be John Yoo. John is a Hoover Institution visiting fellow,  as well as the Emanuel S. Heller chair in law

and distinguished professor of law at the UC  Berkeley Law School. When he is not teaching in the classroom or on television trying to  make sense of legal matters and court rulings, John is a writer and that includes a book released  last summer. It's called The Politically Incorrect Guide to the Supreme Court, the cooperative  of Robert Delahunty. It explains what goes on inside that building past and present, and  also includes the best and worst justices,

recap of controversial decisions and the court's  future. John, welcome back to the podcast.

we have a very big one. We're going to get to  that to start the podcast. The second half, I want to talk to you about the 4th of July  because I think you have a rather unique perspective on what Independence Day stands for  and means in this country but let's begin, John, with the high court, which not too long ago,  about 90 minutes ago, issued its long awaited ruling in the question of presidential immunity. John, this is the case of Trump v. United States,

which I believe the oral arguments were  last April. What his issue is this, whether former President Donald Trump could  claim immunity from the four felony charges leveled by Special Counsel Jack Smith, who has  accused of former president of conspiring to derail the peaceful transfer of power and thus  disenfranchised voters in the 2020 election. Trump's argument, John, is what he did fell under  the umbrella of his official duties as president.

The pushback was, "No. Mr. President. These  were not official acts." The matter made its way to Supreme Court, John, and now we have the  ruling, and, correct me if I'm wrong here because you are the legal brain and I'm not, but, as I  interpret it, John, the court upheld the notion of presidents having immunity for official acts,  but it also sent the case back to Federal District

Court to decide if Trump's post-election  actions constituted just that. Official X. So, it seems to be, John, that we're back to  square one, which is whether and how to prosecute a former president, especially one who is still  politically viable, for things that happened during the presidency. So, here we go, John. So, I  want you to look at this from three standards that I always do with Supreme Court cases. One, is it a  ruling in your opinion, one of common sense? Two,

is the court's ruling clear, is there clarity?  And three, is there closure? So, go for it. In the interest of not sounding like  the defendant, in this case, Donald Trump, but I have to say today Donald Trump has won  a greater victory in the Supreme Court than I can think of any president before any  Supreme Court at any other time of our history. This may be the most pro executive power  decision in the history of the Supreme Court.

Usually when presidents get dragged to the  Supreme Court, bad things happen to them.

where Truman tried to take over the steel mills  during the Korean War. President lost that one too. So, usually presidents lose when they get  dragged before the Supreme Court. Trump was no different when he was president. He lost a series  of very important decisions at the end of his presidency. This case is a resounding victory  for the President. I'm very pro presidential, obviously, in some of my writings. Even I did not  anticipate that he would win so profoundly. So,

you asked, does it make common sense? Bill Whalen: Yes.

places like Brazil and South Korea even today. That makes common sense. I have to say though, that the dissent makes excellent points that,  well, if you looked at text of the Constitution,

if anything, it suggests that presidents don't  have immunity. Congressmen have immunity for what they do on the floor of the house or the Senate.  And actually the constitutional text talks about being able to prosecute presidents after they  leave office and only being able to impeach them while they're in office but it does make  a great deal of common sense, and that's really the appeal that the Supreme Court majority, led by  Chief Justice Roberts here, at 6-3 decision makes.

He basically says, "Look, the presidency would  not be able to function. We would not be able to have a real separation of powers if you could  prosecute a president because imagine a president, an unpopular one for example, who later  becomes subject to laws passed by Congress to go after him, to presidents who want to  use those laws to prosecute him. You could

really persecute a president." And the  court, I don't think the dissent buys it, but they try to make clear this doesn't have  to do with Trump or Biden or whoever's in the office. It has to do with allowing the institution  of the presidency to function. It won't be able to function if you're always looking over your  shoulder worrying about what president is going

to come after you and wants to throw you in jail. Now, closure, this is the interesting thing. Even though Trump has won this resounding victory,  the court does leave the door open for the January 6th prosecution against him to go  forward because it says, "Immunity does not

apply to acts you take when you're not in your  official presidential capacity." And President Trump's lawyers even had to concede at oral  argument that some of the things Trump has been charged with involve things he did as  a candidate for office, not as an official. And there the courts have said, I think  unanimously, that, "You're not acting

officially." So, an example would be, what if  Trump was calling the heads of the Republican parties in different states and conspiring  with them to overturn the electoral votes in those states and replace those votes with his own  electors? It doesn't hold it. The court suggests,

"Well, that's probably an unofficial act, and  so there's no immunity." So, that part of Jack Smith Special Counsel investigation could  continue but I have to say, and this is, I think, the closure you're also asking  about, which is a closure on the whole law fair against President Trump. It's very  hard to see how the January 6th prosecution, the Aileen Cannon case that's sitting on the  classified documents in Florida prosecution...

By the way, this case also applies to the Georgia  prosecution too even though that's in state court. It's hard for me to see any of those cases  getting to jury verdict by the election. And so, I would think the closure could really  come about from President Biden and Attorney General Garland. If they were playing  this smart, what they should do is say, "The Supreme Court has now made it impossible for  us to get the Special Counsel's job done so we're

going to drop all this and just throw it to the  voters in November." Drop the Lawfare campaign because it's not going to work. The Supreme Court  is disgusted with it. That's another thing that comes through in the majority opinion. They  have had it with Lawfare and they have done as much as they could have done to put an end to it. Bill Whalen: So, Trump is technically not out of

the legal woods. Cases could still go forward  but, if you don't like Donald Trump and your vision wants to put the guy on trial before  the election, that appears to be over now.

Yeah. Exactly right, Bill. I mean, the  court goes to great pains to say, "A lot of the things in the indictments against President  Trump can't be determined all the way up here at the Supreme Court level so we're sending the  case back down to the trial judge, Judge Chutkan, here in Washington DC, to go through every single  act in the indictment and decide was it official?

Was it not official?" And again, the nitty-gritty,  then the court actually says, "If it's official, you then have to decide, was the president acting  within his or her core presidential powers, for example, like giving out pardons, or was  the president acting in an area where he shares power with the Congress? An example would  be appointing officers." And then it says, "In the first, in core areas, the president has  absolute immunity. You cannot prosecute him."

Interestingly, this seems to suggest to me that  the president can give out pardons for money. He can't be prosecuted now, ever- Bill Whalen: No, but he could be impeached for that, John. John Yoo: Yes. You could be impeached, but you can't be prosecuted. Bill Whalen: And that gets in the idea of

checks and balances here. So, okay, maybe  under immunity you can't prosecute them, but if the blaring headline of the  Washington Post and the New York Times is, John, President Yoo, takes a million dollar  bride for Whalen for ambassadorship, yeah, you can get tossed for that. John Yoo: Yeah. So, this is an interesting, remember- Bill Whalen: [inaudible 00:10:11] could be gone. Yeah. John Yoo: Yeah. Remember

Bill Clinton, he allegedly did this at the end  of his presidency, right? He gave a pardon to a fellow named Marc Rich, right? Bill Whalen: Yes. A guy who was on the lamb for federal  prosecution for many years. And the story was, he did it so that Marc Rich's wife, who controlled  his money, would support Hillary Clinton in her

race for the Senate. So, suppose that was all  true. It seems to me, according to this decision, Bill Clinton could never be prosecuted for that,  and he couldn't really be impeached for it because he did it on the last week of his office.  He did it on the way out the door. I think, if I read the opinion carefully, the system  can't punish a president for that anymore. He will live in infamy or she will live  in infamy, but she can't be put in jail.

away we go. Question for you, John. Professor,  you are going to let me ask you a question as a legal student here. Three of the justices  were appointed by Donald Trump. Why did these three justices not recuse themselves  from a case that had directly involved Donald Trump and his political chances? John Yoo: Interesting. So, one thing is, as opposed to other courts, the Supreme Court only  has nine members and so the rules on recusal work

differently for them. For example, if they step  down, you can't call in another judge to replace them, which you can do in the lower courts. And  so, they actually have to be much more careful, in a way less generous to the recusal rules  because there's only nine of them and anyone missing, one of them can make a huge difference. But, two, it's never been thought that because a president who appointed you has cases before  you that you have to recuse. Think about

Neil Gorsuch. He was appointed in the very first  year that Trump presidency. If the recusal rules were read that way, he'd have to recuse himself  basically from every case involving Trump. Given that a lot of the cases of the Supreme Court  involving the United States government, you'd have justices who couldn't sit on half the most  important cases every year for quite some time. So, instead, the idea is, is there some kind  of interest that prevents those justices from

being impartial and fair and I don't think  there is. I mean, several of these Trump appointed justices have, from time to time, voted  against President Trump's interest. For example, in this case itself, they all agree that President  Trump can be tried for his unofficial conduct, which is quite harmful to Trump's interests were  it possible to get that in under the wire of the election. So, I don't think recusal was...  And then there's been this particular attacks

on Justices Alito and Justice Thomas, and as you  know, I clerked for Justice Thomas. I find those claims to be almost frivolous. They don't really  involve the justices themselves. It involves

their wives. They say, "Oh, Ginni Thomas-" Bill Whalen: But I asked [inaudible 00:13:20] because a person out there without a legal degree,  a person who just is kind of trying to make sense of all this cacophony of noise coming out of  this decision, that's one of the first place to detract i [inaudible 00:13:29] is say, "Well,  geez, three Trump justices voted on Trump's behalf," and it's different from Bush v. Gore in  this respect because there you had a 5-4 decision

back in 2000, but none of those justices were  appointed by George Bush or Al Gore. So, here, this is the awkwardness of the situation in part,  I think, because you have three Trump justices involved in a decision involving Donald Trump. John Yoo: Yeah. Let me also say, having been there, actually the three justices you're talking  about are people I've known for a long time. I mean, I'm of their generation. We were all in  school together, clerked for similar judges.

In fact, I rented Brett Kavanaugh's apartment  when he moved out of law school, I moved in, and I can tell you there was nothing in  his closet or under his bed, believe me. But beer cans. John Yoo: Although as far as I can tell, all the guy ever did during law school  was playing intramural basketball. So, there's your preparation for the future for the  younger students listening. The other thing is, the justices, I really deeply believe this  is, they don't care about who the president

is in terms of person. If they have an  allegiance to anything, it's ideology, judicial ideology. For example, opinion like this,  do you look at what the founders thought or do you look at what the court's recent precedents are? That has almost nothing to do with the individual who's in the office. And, in fact, I've noticed  that justices and judges, I think Justice Scalia loved doing this, voting against the side  that everyone would've thought politically

they would've liked. So, I think Justice Scalia  got all kinds of pleasure, for example, when he would issue decisions against law enforcement  because everyone assumed conservative judges were pro law and order. Or Justice Thomas has often  issued some startlingly libertarian decisions about whether you can use electronics to surveil  people for drug dealing and people think, "Oh my gosh. Justice Thomas, he's so pro law and order,"  that's the way they think about it. Not like, "Oh,

I'm going to vote for or against Donald Trump." Bill Whalen: Mm-hmm. A cork on the calendar, John, has the court releasing this decision on Monday,  July 1st, a day after the June 30th deadline, usually the end for doing this though but, why  do you think, John, the court waited until the end to do this and explain a little bit if the  court sits down and thinks about the timing of how to roll out all of these decisions? John Yoo: I do think the timing you saw,

if you were, say of a political nature, is  really up to the Chief Justice. The opinions coming out and everything ultimately  is up to him and I detect good sense in Chief Justice Roberts in delaying the opinion  so it did not come out the same day as the debate because then... Maybe Roberts wishes to elevate  the nature of the presidential debates and get them talking about the Constitution but even  there, he saw the better sense of not issuing

the decision during the period of the debate. Now, the reason why this came up at the end, one, is it was an emergency. So, this case got  accelerated way faster than almost all other cases would be heard. As you noted, Bill,  the oral argument was just in April. The case was granted just a few months before that.  Usually the Supreme Court takes about a year or so to fully consider and vet cases, hear the oral  argument, issue the decision. So, this case went

up at least three times faster than a normal case. But then the second, if you look at the decisions, the dissent is actually quite lengthy and  extensive. There are also several other opinions by other justices. As I said, the  majority opinion is one of the most intense

considerations of the nature of their presidency  in the history of the Supreme Court. I mean, agree with it or not agree with it, this will be  the most important opinion about the presidency by the Supreme Court for the next few decades and  so the justices, Bill, are just like students trying to hand in their papers out at the  deadline. They go right up to the very last minute they're allowed to keep working on their  dissents, concurrences, answering each other.

You'll see that the majority and dissents and  [inaudible 00:17:39] are all responding to each other. So, they waited to the last possible  because I think they all wanted to get the last word in on the most important Supreme Court  opinion on the presidency, maybe in the history of the country so it's no surprise it came out a  little late, a little past the deadline. They got

a one day extension. We'll give it to them. Bill Whalen: The one thing I'd point out to students of politics versus students of the  law is that if you're a politician handling a political matter and you have something that's  controversy in a bombshell and you just want to walk away from it, you dump it at five o'clock  on a Friday and call it a weekend but here, instead of the Supreme Court not doing it on  a five o'clock on a Friday, because if you

told me before it came on the air, the Supreme  Court releases decisions at 10:00 AM sharp... They did this at 10:00 AM on Monday and Roberts  could not have foreseen this but, given what happened to the president on Thursday night in  that debate, followed by a Friday, a Saturday and a Sunday and a Monday morning of just endless  speculation about the health of his campaign, the health of the President, what's going to happen to  the election and Donald Trump's fortunes rising,

now on Monday morning he kind of adds a log to  the fire with all that by doing this. I'm not saying he did it on purpose, but it just plays  out that way because it rolled out on Monday.

they call hot dogs and hamburgers these days. So, most Americans are going to be taking a few days off and they're going to be enjoying  themselves, having a cookout and the Supreme Court cases are the most important things to talk  about, for at least people interested in the law, every summer because they always finish their  business right before July 4th. They also, by the way, have the academic calendar, so they're  all dispersing now. They all want to get out.

That's the main reason they have to finish is  because they all usually traditionally want to get out of town for July 4th and you don't see  them again until the first Monday in October. So, this is the start of their long summer vacation. I suspect some of them may be wanting to find out some undisclosed location to join Superman and  hang out because of the bomb they just threw into

the campaign. Can I also say one last thing is,  I don't know if you were going to get into this, Bill, is how what we saw with the debate and  the political angles to this and the legal angles intersect or intertwine is, this, it seems  to me, makes it much worse for Biden because if Democrats thought this whole Lawfare campaign  against Trump was going to somehow pull their

bacon out of the fire, it's not going to now. So, that means the debate became even more important [inaudible 00:20:28] because, I  think, the Biden versus Trump or fill in the blank versus Trump is really going to  have to be decided at the ballot box. Now, the Justice Department, prosecutors, Fanni Willis,  juries, they're not going to save the Democratic

Party from what's coming in November. Bill Whalen: Yeah. Take us inside the court's thinking in this regard, John,  in December of 2000, the court has to, in effect, decide the outcome of the presidential  election of Bush v. Gore, and I don't think they enjoyed doing that. And now, here we are on  the summer of 2024 and they had to weigh into Trump v. United States, which may or may  not decide the outcome of this election,

but it does have an effect on it. Is the thinking  on the court, John, that, "We're done with this now. Let's hope it's another 25 years before  we have to weigh in on a national election." That's a nice point, Bill. I think if  you were to pull back from the legal nitty-gritty and say, "How's the court thinking about this  as a political actor?" Every time the court has decided a case involving January 6th or Trump  or the election in the last year, they've done

it in a way to try to pull back the courts,  trying to get it out of the morass. And so, here, let me say this is what I think is what  Chief Justice Roberts thinks. Chief Justice Roberts has been to the Bill Whalen School  of Politics. I think he thinks the way you're describing. Bill. I think he would say, "Look, no  one can accuse us now of deciding this election. Trump or Biden will win in November. It won't  be because of the Supreme Court. In fact, what

we're doing is we're in a way delaying things." If you look at it, the lower courts have delayed a lot of these prosecutions of Trump so that  they will not take place before the election, which means, say Trump loses, he will not be  able to accuse the Supreme Court of having put its finger on the scales against him and, if  Biden wins, he can't say, "Oh, I won because of the Supreme Court." The court is going to have  been out of it, I think. Fairly so, and I think

that's been Chief Justice Roberts' agenda. You know what the thing is, and I think the other reason it's succeeding in a way is, nobody's  talking about these huge Supreme Court decisions that have been coming out this week which,  in any normal year, but Trump versus Biden, would have been considered earth-shattering. For example, the court, last week, issued a

decision overruling deference to federal agencies.  That means the courts are going to sit there and closely scrutinize all of these thousands of  regulatory decisions coming out of the executive branch agencies. Earlier that week, they said  that these agencies aren't going to be able to use their special courts against Americans, that  all Americans have the right to go immediately to

federal court to challenge any agency action.  They don't have to wait and sit for years and years before these sort of kangaroo courts that  have been concocted by these new deal agencies... Any normal year, this would be considered  earth-shattering changes in constitutional law. Nobody is even talking about them. Bill Whalen: And then, sometimes, it goes

back to the issue of closure, John, they don't  quite settle something. For example, a case really overshadowed today was the one involving state  laws overseeing social media content and there, John, like the Trump case, they what? They sent it  back to a lower court. And now, is that the court just saying that we want you guys to review this  a little longer and think it over longer before we weigh in? What was the rationale there? John Yoo: So, there's legal rationale and

political rationale. Legal rationale is, they sent  it back down to the lower court here, the one in Texas, because they felt that the lower court had  not fully considered all the arguments. There's a lot of important First Amendment doctrine,  the court says, that the Fifth Circuit did not consider and so the Supreme Court doesn't want to  get ahead of ourselves and decide things before they've been fully ventilated. The Supreme Court  justices actually used the word, "percolate."

I don't know if anybody remembers how we used to  make coffee in this country, but we didn't put pods in machines and let the robots make our  coffee. We used to have this percolation. So, the justices like the idea of issues percolating  below until they're really perfectly set up for the Supreme Court to decide and I think  that some of it, they felt like maybe the lower courts have been rushing into the  social media issue too fast but they did

give a strong sense of how they'll come out. They basically said, "We don't see how the states have a right to tell private companies,  even private companies involved in speech, what kind of views they have to accept or not  accept." And Bill, I appeal to your Irish origins, the great case they appeal to the Supreme  Court case about the Irish parade in Boston, the St. Patrick's Day parade in Boston and this is  so funny because again, this is just them saying,

"This is how you might think about it, lower  courts." They say, "Social media is like a parade and the parade organizers, they decide who  gets to have a float, who doesn't get to have a float and the whole thing is expression of speech.  It's an expression of points of view but you're the parade organizers. You can still..." In that case, I think, they excluded a gay Irish parade float but they basically  said, "The parade decides who gets to be in

the parade or not, what points of view or not.  You wouldn't allow, I would think, a float in the Irish parade of King Charles III, a King  Charles III float." So, the court actually say, "That's a good example. You're a private actor.  Even though you exist for speech, you still have the right to decide who comes in or who goes  out." And the court said the lower courts have to

explain why social media is different. I think  you're right, Bill. In terms of the daily lives of Americans, in terms of what we do every day,  in terms of what we're going to be doing for the years to come, that decision may be more important  than the case in Trump versus the United States-

to have huge ramifications down the road so you  don't want those overblown. John, so here we are-

In both of those cases, the court said, "We're  not going to decide this now either." So, maybe I put the broader point, Bill, to,  I think, fully answer your question is, I think what the court did is, it was saving its  political capital. In this sense, I think they do think politicians. You have a limited sense  of political capital and they're going to throw

it all into the Trump case. And so, to do that,  they decided to lower the temperature, maybe get out of other controversial issues like abortion  to the extent they're pushing forward this year. It's in this trying to constrain the  administrative state or what Trump likes to call the deep state that they've been doing for  20 years now and there, nobody's going to get too

upset about that compared to the Trump case. If  they had gone and decided the abortion issues, that would've led to more calls of, "Who are  these jokers and why are they deciding all these important cases for the country?" So, the way they  think is, "We're going to narrow what we're doing and throw all our chips on the Trump case in the  hopes that the American people accept what we say and not challenge us," in the way, I'm afraid,  some critics want the court to be challenged.

this little conference room. No staff allowed.  That's amazingly... No staff, just nine of them. They sit down and then they go and discuss the  cases and they go in order of seniority so the Chief Justice goes first. So, in Trump case, he  would've gone first said, "I vote to have immunity for Trump and this is why." And then it goes down  from most senior to least senior and they vote.

And so within a few hours after the oral argument,  the court knows how it has decided the case. And yes, as you say, they raise their hands but  nobody knows except them in that room and then their clerks afterwards who they get  that help... And the only reason you know, as a clerk, is that justices need your help  to help do research and draft the opinions. The amazing thing is, other than that terrible  leak of the Dobbs opinion two years ago,

which we talked about on your show, there has  never been a leak like normal in Washington. You don't see people jockeying to change decisions  by leaking early. Oh, this happened or that happened. Nobody knew that the... I mean, I kind  of thought Trump was going to win just on because of what we have discussed. Some of the cases they  were kicking out early, some of the things they were lowering the profile, but nobody really knew  until 10 o'clock this morning that Trump... That's

unbelievable for Washington. How many secrets can  last that long in Washington? And I think it's because the justices do their work themselves. Bill Whalen: John, for the past 72 hours, I've been reading endless speculation about  President Biden and what comes next after the debate. Some of this serious, some of this kind of  frivolous, but it's fascinating to read because, besides just the game within the game of what  happened to him, there was a game within the

game of, okay, if you wanted to get Joe Biden off  the ticket, how does it happen? It's incredibly complicated. I won't spend too much time  getting to pledge delegates and that all kind of stuff but timing is a really fascinating  thing here, given state rules and so forth. Let me ask you a timing question regarding the  Supreme Court, and this is just kind of a wacky

thing, but it just crossed my mind the other day  and it goes like this. You are Sonia Sotomayor and you're now thinking about how much longer you want  to stay on this court and maybe you could survive. She's had health issues, she's had diabetes, I  think for a good portion, not all of her life, but I don't think she is in the same health  condition as Ruth Bader Ginsburg right now at this point. But maybe you're thinking about- John Yoo: Yeah. We hope not.

But maybe you're thinking about your  longevity, John, maybe you're thinking about now the improved chances of Donald Trump winning  this election, and maybe you're thinking this, "Maybe I should get out right now before there  is a Republican city in the White House." So, here's my question, my friend. We're sitting  here on July 1st. Could she all of a sudden announce that she is going to step down and if  so, John, could they actually? Would the timing

work out? Could they get a confirmation hearing  done between now and the election? Could they get a replacement? Again, this is just kind  of a crazy theory of mine, but since we're in the middle of conspiracy theories right now,  could that actually happen? Is it possible?

No. You're right, Bill, because  the more it looks like Biden's going to lose, the more you would want this to happen if  you were progressive, because otherwise you're handing the seat potentially over  to Trump or whoever Trump's successor are.

things you would need. First, I think you need a  president who's on top of it and one thing Trump did in his first term was he kept his promise to  conservatives to be very much on top of getting the right people on the bench. Bill Whalen: Right.

The Senate majority was really unified. I mean, in  order to get all the stuff behind the scenes done, background checks, investigations, reading all the  opinions, scheduling the hearing on the committee, I was general counsel of the Senate Judiciary  Committee, and then the floor vote, I mean, you got to be disciplined. You can't have dissenters. If there had been an Arlen Specter around who said, "I'm not so sure about this," the whole  thing collapses. Do we see a united Democratic

Party right now? It is so fractious, I think, and  there's so much infighting going on. I don't know whether the Democrats in the Senate would  be able to display that kind of discipline.

not in charge of his party. That means, this is  what I would witness all the time in the Senate, is then you would've different factions within the  Senate trying to get their nominee pushed forward and part of that game would be, "If you don't  put the guy I like up, then I'm going to delay things." That would just extend the whole period  of picking the President. I don't see them as that unified. Maybe they would care a lot about... You  know what it would also be an interesting sign of,

Bill? It will be an interesting way of taking  the temperature of whether the Senate Democrats think that Biden's going to win because if they  don't think he's going to win, then they will try to act in a disciplined way and ram it through. Bill Whalen: I think also, John, choosing somebody would be very complicated because of identity  politics, plain and simple. He has had one pick, he picked an African-American woman.  Do you pick another African-American

justice? Do you pick an Asian justice? Do  you pick another woman? Do you pick somebody openly gay? Everyone on that side's going to  have an idea who should be the next justice. And those things count even more when  you're behind in the polls, right? You would try to pick someone to help him get reelected. Bill Whalen: Now, you have to decide, "who gives me a bounce in the polls." Yeah. John Yoo: So, I'm glad maybe I'm still in the

mix because I'm a member of the Pennsylvania bar. Bill Whalen: Well, speaking of Pennsylvania, John, that's a nice segue to the other portion  of this podcast that I want to get into, and that is Thursday, July 4th, Independence  Day in America. What are you doing on the 4th?

Well, I'm going to be hosting,  actually, some friends at a club near our house in California and doing the traditional American  things, hamburgers, hot dogs, hopefully burnt and overcooked on a charcoal grill like they should  be, and listening to live patriotic music and watching the boats flow by on San Francisco Bay. Bill Whalen: And does anybody yell, "Turn that crap down when you played patriotic music?" John Yoo: They better not.

decidedly different in different pockets of the  country. For example, in San Francisco, I would argue in that Bay Area, there's patriotism, but  it's different levels of patriotism dependent. It's like the microclimate in San Francisco,  it's kind of micro patriotism. Some areas fully embrace it with parades and so forth.  Other areas just don't get excited about it. In terms of climate, it's always fascinating.  There's always a question of fog, whether or

not you can have fireworks to begin with. You  mentioned I'm in the South, I'm in South Carolina, I'm just outside of Charleston right now, John,  I'll be on the beach on the 4th of July and it's a great irony for the part of the country that  began the Civil War, fired the first shot. There's a first shot bar in Charleston I'd be glad to  take you to if you want to come visit me here-

would I have been seven, I guess? No, I  would've been nine years old. I remember my dad taking me and my younger brother Chris to  watch the bicentennial parade in Philadelphia. I think it is actually the first July 4th that  I can remember and I can remember because it was such a big deal in Philadelphia. I mean, you  had the Independence Hall, which was originally

the State House, right? It was the Pennsylvania  State House at first and so Philadelphia and its history is so intertwined with the revolution and  the Declaration of Independence and the writing and ratification of the Constitution, which came  in 1787, that it's ever present. It's all around you in Philadelphia and so I think you always  appreciate the founders and what they did and their bravery and, actually, I grew up 10  minutes from Valley Forge and so, I still

remember as a kid going to visit. I mean, they  still have the little huts and cabins preserved from the winter of 1777. You can't believe that  people lived through a cold Pennsylvania winter in those kind of conditions but they did it  because they wanted to liberate the country.

around you would not have led that way. Bill Whalen: The movie, Rocky, gets that very well too. Especially the scene where  he is running through Philly just kind of captures what a [inaudible 00:39:28] town it is. John Yoo: Oh, you so so people tell me... Because Philadelphia now is a lot of cities, oh,  fancy pants, restaurants and shopping-

[inaudible 00:39:36]. John Yoo: But yeah, the Philadelphia I grew up in was the Philadelphia in Rocky  so when I saw it, I was like, "Whoa, why are they showing home movies?" But I did not  grow up in the second part of my life in the South Philly suburbs, but that was where my family  first landed. The Southern Philadelphia Italian neighborhood is where my family first landed  and lived and if you drive there even today,

you'll see it just like then. Italian grandmas  sitting on the stoop because it's so hot in summer and talking across the street with each  other. The street is the neighborhood living room. There's a lot of streets that are still like  that and when you go to eat there, you park in the same neighborhoods. So, that still is, I think,  the dominant culture of Philadelphia is Rocky.

All right. Let's talk a little bit,  John, about freedom versus authority in America, which is always kind of a delicate balance  and something which is being discussed in this election very much with the idea of  democracy being under attack and so forth and here I'm going to get into a bit of a  diatribe, John. Our listeners should read a column I have coming out at Hoover this  week on life in California versus freedom.

It's kind of a selfish breaking the fourth wall  thing that I wrote, John, but what got me going was the other day, John, I took my car in for a  smog check in California. 108 bucks which you have

to pay every so often to make sure your car passes  a mission standards. I'm willing to pay that, John, because ultimately the price is clean air  and I think we agree that clean air is probably a good thing but, John, that's on top of a  $308 registration fee that I had to pay for my 8-year-old car, which is a fee based upon  the blue book value, which the state nails on you every year if you want to drive your car.  But here's what got me writing in the column,

John. I took my car in for the smog check. It's a  2016 BMW and you're a BMW guy historically as well so you can appreciate this. John Yoo: Oh, yes. BMWs have oxygen sensors. Their  oxygen sensors are very kind of sensitive, finicky things and if the oxygen sensor is not  working properly, John, then you don't pass the emissions test or so I discovered after taking my  car and in 10 minutes after the guy checked it, he smiles and goes, "You failed." John Yoo: You failed? Oh my gosh.

I said, "How do I pass?" And  he goes, "Well sir, you have to get in your car and drive," because it's a function of the  car not driven enough and I don't drive slot.

tried driving 55 on a highway in the right-hand  lane? Do you know what people do when you do that? It takes us back to Philadelphia, John. John Yoo: It's amazing you weren't given the Mad Max Road warrior treatment by  our fellow residents of California.

"The heck with this. Life is short. I want to  get this done. I'm going to jump in the HOV lane," and then I saw the sign. You know what the  fine is for driving in the HOV lane, John? $493. No way. Bill Whalen: Way. I drive in the HOV lane all the time  by myself. I've never actually gotten a ticket.

cigar while I'm walking." Well, John, where I live  in Palo Alto, there is an ordinance that if you're smoking in public, it is a $500 fine. John Yoo: Are you kidding? That's an expensive cigar, my friend. John Yoo: You can't smoke in public? If it's ruled a high density- John Yoo: Oh my God. ... [inaudible 00:44:03]  space, you cannot smoke in public. $500. So, I thought, "Okay. Fine." John Yoo: I volunteer to be your

lawyer in the case of Whalen versus Newsom. Bill Whalen: Yeah. So, I don't want to pay $500 for my cigar, John. So, I figured, fine,  I'll just light up fireworks on the 4th of July, which I do in California but, you know  what, John, if you live in Menlo Park, which is adjacent to Palo Alto, it is a thousand  dollar fine if you set off fireworks and jail time and the cops actually send out emails  each year reminding you of this fact. So, if

you want to break the law, go ahead and do it, my  friend. Maybe you want to clean up the evidence, but if you fire up a gas powered lawn blower to do  that, John, it's another a thousand dollar fine. So, here's what I'm getting at, after this  diatribe about my poor sad life in northern California, there are a lot of restrictions on  how you can live your life as you so choose. I would argue some of these make sense for  the public good, the air emissions thing,

I had mentioned. The $500 fine for cigar, which  I think we'd agree is comically expensive? Well, passive smoke is not a good thing for people.  Setting off fireworks in a dry part of the country can start a wildfire and so forth. So, certain  things kind of make sense, John, but there is a question here about how much the government  can regulate your life and your activities versus how much you're allowed to be free. So,  explain a little bit from a constitutional law

perspective how this balance plays out. John Yoo: I am glad you asked this on July 4th because it ties together with your  earlier question. As you sit there and you say, "Did hundreds of thousands of Americans give  their lives in combat to preserve our right to be micromanaged by a sea of faceless bureaucrats?" Bill Whalen: Right.

Roosevelt. They were the original progressives  and their view is, "Life is too complicated. We have to have experts make all the major decisions  in society," like, with your examples, how much emissions should go into the air to keep it clean,  what people should be allowed to drive, what they

should be allowed to smoke. In fact, their view  was, "This is so important. We got to get that away from politicians who are dirty and corrupt  and so we need to create this vast independent bureaucracy and let no one interfere with it." That's one vision, and really we are living in that vision. That is Woodrow Wilson and FDR's  vision for the country. You could say the LBJ

and Obama put it on steroids, but that's one  vision of how to rule the country. I think the founders' view and the view that most Americans,  I think, that is embodied in the Constitution and the Declaration of Independence is, we have  a decentralized government. The law doesn't tell us what to do most of the time. We rely on  the good judgment and reasonableness of everyday American citizens in their small communities and  towns to decide basically how they want to live

without the government reaching and say, "We  don't need a bureaucracy. All we need are some police, some courts and that's about it." And that was basically the way America ran itself until Woodrow Wilson showed up and, if you  look at these decisions we talked about earlier about deference to agencies, which is the Chevron  decision or about using special agency courts to adjudicate cases against the government or earlier  cases, that this Roberts courts has been deciding,

against having independent agencies, that every  agency head must be responsible to the president or an elected official. When you look back,  these cases like the Trump case and so on, they're like blips. The major trend of the  Roberts Court has been to try to cut down the

administrative state. So, Bill, they have you in  mind in fact, when they're making these decisions because they're asking these fundamental  questions like, "Why does the government get to decide what cars we get to drive?" In fact, one of the decisions this week is a major blow to the Biden administration's effort  and the Newsom effort to electrify cars and get

rid of gas cars. So, those are the two competing  constitutional visions. I think, because of the Great Depression and the new deal, FDR was able  to replace our original constitution with this progressive view but our institutions, they take  a long time, maybe even almost a hundred years, but they're reacting back and they are starting  to curb the excesses of bureaucracy. As you say, Bill, of course there are going to be cases where  we want government to protect health and safety,

but it has gone way too far. We're  allowing bureaucrats to replace common sense judgment by you and me and I  think the Supreme Court understands that as trying to restore that earlier world. Bill Whalen: But how do we decide, John, ultimately the limits of freedom? In  1776, they took up arms and they rebelled and they wrote a declaration, declared their  independence. In this day and age, it seems, tying back to the courts, everything ends  up in jurisprudence. Let the courts decide.

Yeah. This is the problem is, in order  for this kind of restoration to take place in order to push back against the progressive,  this ever present omnipresent government state, you can't just do it in the courts alone.  You need Congress and the President to

agree too. Part of the problem that people are  raising already about what the court is doing, is that it's throwing the ball back into Congress. So, if the court says, "Agencies can't read the Clean Air Act, for example, which is very vague,  to decide how you produce all the power in the country, how we all drive to work, HOV, all that  stuff," well, then Congress is going to have to pass laws that are clearer and more detailed and  take the responsibility on of making choices for

us. That's what we elect them to do but a lot of  political scientists say, "Oh no. The only thing congressmen want to do is get reelected and punt  all the hard questions over to the administrative state because they don't want to decide. They  don't want to decide abortion. They don't want to decide tough choices like, should you be forced to  drive an electric car in the name of clean air." But that's what these court decisions are going  to force them to do but it's going to require...

And I've heard you talk on your podcast about  this repeatedly. How do you get Congress to take responsibility for what it's constitutionally  required to do? Presidents can do it too. They can start curbing the administrative state  saying... I think Trump was effective in this. It seems like a kind of crazy idea at first, but  I think it worked. He basically said, "For every regulation the agencies issue under my presidency,  they have to get rid of two other ones first."

Presidents can participate in this process.  Reagan did a lot. Under President Reagan the administrative state stopped growing. In fact, a  lot of spending under Reagan was for defense. He didn't cut back on the administrative state, but  he was the first president in history who stopped

it from growing at all so presidents can do this  too. I wish presidents, senators, chief Justices could all give July 4th addresses saying that  they are re-devoted to the original cause in 1776, which is to place government in our own hands, let  us make our decisions about how we want to live and, as you say, get bureaucrats out of our lives. Bill Whalen: John, I remember growing up there

was, for example, no seatbelt law. You would  just jump in your car and away you'd go and then, as seatbelt laws came into effect, I remember  people crying and screaming from the rafters, "My God. How can you make us wear seat belts?"  Now, you just get in your car and you put on your seat belts. It's not even a thought.  John, I might be wrong here, but I don't remember anybody going to the Supreme Court with  the case of you versus California saying, "John,

you should not be required to wear a seatbelt."  Are we maybe overly litigious in this day and age? You know what? Actually, there was a  seatbelt case that went to the Supreme Court, but I think it was called GM versus Nixon. The  car company sued, not the average individual, but no, you're right, Bill. Well, one thing is  individuals nowadays, I think, expect the courts to be the only place they can go to defend  their individual rights and so you're right,

Bill. You've seen an explosion of litigation- Bill Whalen: I mean, in this regard, for example- ... not just at the Supreme  Court but at the lower courts.

because times [inaudible 00:52:50] are changing? John Yoo: No. I think it's also because people, I think, expect less of politics or they're  less... Yeah. In the old days, if you didn't like the seatbelt law, you would've gone to  your member of Congress and you would've said,

"[inaudible 00:53:04], get rid of this seatbelt  law. Pass a law banning NHTSA as far to..." I hate to use these acronyms, but the highway people  or the traffic safety people from doing this, and instead, now I do think you're right, Bill.  People don't expect members of Congress to help. They've bought into this vision of members  of Congress as being interested only... You've criticized Congress, I know, as people in  Congress are using Congress to make themselves

into media personalities, right? They're not  interested in passing legislation. They're not interested in serving constituents, and so where  do you go? You might as well go to court. There you will... Because of what we said earlier, the  justices do their own work, they are responsive, they have to issue decisions explaining their  reasons, and the federal courts do carefully consider every case that someone files before  them, which, I think, is amazing, and so that's

the only place Americans feel they can get  a fair hearing. So, I don't think Americans themselves are litigious. I think it's because  this progressive system moved so much power to the bureaucracy, so emasculated the legislature. Bill Whalen: [inaudible 00:54:10].

Supreme Court, so it's an odd time we live in. John Yoo: Yes. Congress could have passed a statute about immunity long ago. They don't  want to get involved. Now, part of it is, of course, that no one until Biden ever  used the Justice Department in this way to go after a past president, so we have no law.  Actually, the Senate recognizes we have no laws, we have no practice about this because  we've never prosecuted a president before.

Okay, John, final note, and we'll  make it a quick one. You and I live in California and our intrepid governor finally gave a state  of the state address a few days ago. I included that in my blistering article because it really  wasn't a state of the state. It was him just kind of rehashing his inaugural address and he kept  dropping the word freedom throughout it. John,

this is something Gavin Newsom loves to do.  Freedom. This speech rankled me because Gavin Newsom said in no uncertain terms that California  of 2024 is California in 1939 and the wolves are at the doorstep, freedom is under assault. We  have to push back tyranny. Question for you, John Yoo. Is it 1939 in California? Is it  1939 in America and, as you look at freedom in America in 2024, is this generation more  free or less free than the previous generation?

[inaudible 00:56:12]. What he saying is, "If the  election doesn't go the way I want it to, we're headed to dictatorship, folks. Freedom dies." John Yoo: Yeah. I think now that argument also is over the top. First of all, people saying,  "Democracy dies," to me, we're not a democracy.

We're a republic, and actually progressives  should be glad we're not a democracy because they're losing a majority of the American people  and as they did under Trump, they're going to use all the elements of the Constitution to try  to slow down and stop what the winner of the 2024 election wants to do just like Republicans  do it right now while a Democrat's in office. I really find them outrageous, these arguments  that, "Oh, we're living under dictatorship," or,

"We're going to live under dictator..."  Because Republicans say that about Biden now too. I think that goes too far, just like  I think these fears of Donald Trump go too far. They said the same thing about Trump in his first  term, right? And actually I didn't think that we

lived under a dictatorship from 2016 to 2020. I  don't think things went to an authoritarian turn, and I think our system is far more resilient  and can resist even the bad impulses, if people think that's what Trump's going to  have, of one person when they are president. We have had, I think, presidents who've had  just as much desire to concentrate power, to use it to try to change the country. I  don't think it fundamentally changed our

governing system. I mean, you want to look  at people who might have been dictators. You could look at Andrew Jackson or FDR or  liberals sometimes say Abraham Lincoln, but our system maintained itself throughout  all those periods, I think, through periods of far greater emergency than today. Bill Whalen: And I think that's why that speech wrangles in part because it's saying we  don't trust the system, the system's not built,

and I would just push the opposite direction.  The system is elaborately wonderfully designed, and today's a good case in point. The founding  fathers did not put language in the Constitution about immunity, so let wise people on the  court decide what exactly immunity is.

people to make their own decisions. They  really do believe in government by experts, and I don't think that's the value I  would celebrate on July 4th weekend is, "Thank God we have a constitution that allowed  us to give all our power to the experts."

You've been listening to Matters  of Policy and Politics, the Hoover Institution Podcast devoted to governance and balance of  power here in America and around the globe. If you'd been enjoying this podcast, please don't  forget to rate, review, and subscribe to our show. If you wouldn't mind, please spread the word. Tell  your friends about us. The Hoover Institution has Facebook, Instagram, and X feeds. Our X handle is  @HooverInst. That's spelled H-O-O-V-E-R-I-N-S-T.

John Yoo's book that I referenced at the beginning  of the podcast. It's The Politically Incorrect Guide to the Supreme Court. It is available  at good bookstores. It's available at that outlet that named after a big river in South  America. Definitely read up on it. It could not be more salient than after what happened today. I mentioned our website at the beginning of the show. That is hoover.org. While you're there, sign  up for the Hoover Daily Report, which keeps you

updated on what John Yoo and his Hoover colleagues  are up to. That's emailed to you weekdays. Also sign up for Hoover's podblast, which delivers  the best of our podcast each month to your inbox. Finally, one last note. It's a programming  note. This podcast is going to take a break for the rest of July, but we will be back  next month with new content, current events,

research being done at the Hoover Institution,  plus a few historical milestones. I want to do a show on the 50th anniversary of Watergate, which  we've touched on in this podcast, which I think is very relevant at this time of institutional  distrust. Also, Herbert Hoover's sesquicentennial, his 150 birthday, approaches on August 10th.  We're going to talk about Mr. Hoover's life and times with a biographer of his. For the Hoover  Institution, this is Bill Whalen wishing you

and yours a great 4th of July. Let freedom ring. Speaker 3: This podcast is a production of the Hoover Institution where we generate and promote  ideas advancing freedom. For more information about our work, to hear more of our podcasts or  view our video content, please visit hoover.org.