John Yoo has my undying respect. Anyone who can make John Ashcroft into a defender of liberty is an evil genius of the first order.
The most important element of the new story is the account of how, following the attempts to coerce Ashcroft on his hospital sickbed, the White House faced a mass resignation at Justice in response to its concerted efforts to subvert the law. It’s worth stressing that this was not a liberal – conservative struggle by any stretch. We’re talking about political appointees for the most part, hand-picked by John Ashcroft and often with the White House’s blessing. All are bona fide political conservatives and Republicans. The divide was between those committed to the Constitution and Rule of Law, and those preparing the way for a Presidential Dictatorship.
One mystery in this turnover process has now been solved. After Jack Goldsmith left OLC, Gonzales badly wanted John Yoo to be Goldsmith’s successor. Ashcroft is reported not only to have dismissed this idea, but to have been uncharacteristically pointed and brusque in the process. (Our principal source: some embittered comments from John Yoo). The new Isikoff-Evans account makes clear how this developed – namely Yoo had made himself into a mole for the Vice President’s office, specifically David Addington, in the process. His agenda was clear: to establish the legal basis for a Presidential Dictatorship. He was using the powers of OLC to achieve that. Jack Goldsmith uncovered his handiwork, notified Ashcroft of it (through Comey and Philbin) and set about rectifying the situation.
These are extraordinary, powerful and important developments in America’s legal history. As Marty Lederman asks: “Is there anything remotely like it in U.S. history?” The answer is no. The essence of the Addington-Gonzales-Yoo interaction was a plot against the Constitution – a Schmittian design under which the war powers were being used as a state of exception to overturn the Constitutional order of government and install something new and previously unseen. The courts and Congress were to be emasculated, and the president was to assume hitherto unprecedented powers to govern. Moreover, he was to do this secretly. And all of this was being done behind closed doors in the White House and Department of Justice. It was not only unknown to the public; it was unknown even to senior figures at Justice – Yoo’s superiors up the line.