Sunday, July 1, 2012

Former Obama/Holder Target Explains Roberts

Back in July of 2009, I did a piece on UC Berkeley Law Professor John Yoo here. Professor Yoo served in the Bush II administration as legal counsel. He was also one of Barack Obama's and Eric Holder's earliest banana republic targets. They sought to prosecute Yoo for advising Bush and the military about enhanced interrogation in a manner unpleasing to the new emperor.

Long after the DOJ thugs went after Yoo, the courts found Yoo's advice to be protected by executive privilege and a specific constitutional provision. The irony is that Holder's political lawyers went after Yoo specifically about the private advice that Yoo gave Bush in which he correctly told the president that waterboarding and similar interrogation techniques were allowable according to then-existing law. Mind you, he did not advise Bush that these techniques should be used. He merely advised him that they could be used.

Upon the entry into office of El Rey Obama and Generalissimo Holder, the administration changed those rules, and the Congressional Democrats developed collective memory-loss about what they had earlier approved. Those facts did not deter the DOJ political shysters from attempting to prove that Yoo's advice was criminal. And here's the ultimate irony. When Congress, now safely in Democratic hands, requested the memos from Yoo to Bush explaining what Yoo had advised and when, they were turned over.

Holder and the Democratic Congress threatened Yoo with contempt if he did not turn over all the communications between himself and the president. Holder unequivocally stated that it would be unprecedented (there's that word again) if Yoo refused and/or Bush raised executive privilege. But they didn't refuse. The documents were turned over, which is a great deal more than we can say about Holder and Fast and Furious. Yet by virtue of his cooperation with Congress, Yoo was hounded by Holder's "human rights" shysters.

Without ever having raised the issue of executive privilege (or its variant, communications privilege), Yoo was totally exonerated by the courts. The holdings were clear. The personal advice given by Yoo to Bush may or may not have been covered by executive privilege, but that didn't matter. The courts clearly ruled that Yoo was protected because he was a lawyer advising his client, and also further held that Yoo's advice was absolutely correct based on the law as it existed when the advice was given.

It greatly distressed Eric Holder and his amateur lawyers to find out that they couldn't prosecute someone for giving advice that was based on the law as it was, not as the law was to become. It's a little thing forbidden by the Constitution called an ex post facto law. Only banana republics prosecute their enemies under laws passed subsequent to the new boys taking power.

That's your basic background on the difference between Professor Yoo and Shyster Holder. But since the good professor is a particular favorite legal authority of mine, I'm going to do something I rarely do. Since I'm still flummoxed by the strange opinion of Chief Justice Roberts in the Obamacare case, I'm going to let Professor Yoo, a far cooler head, express my opinion, only much better.

Here is Professor John Yoo's Wall Street Journal take on Chief Justice Roberts: Roberts and his Apologists.

PS: When I wrote the original article in 2009 I accidentally referred to Professor Yoo as "Woo" twice. We're unable to edit posts that old, so please ignore the errors.

22 comments:

AndrewPrice said...

Yeah, I agree with Yoo as I'll discuss tomorrow. This was a bad decision.

LawHawkRFD said...

Andrew: Something tells me that despite out best efforts, we're not going to be able to avoid writing several pieces each on the fallout from this decision.

K said...

Justice Roberts bumper sticker: "I believe the liberal media".

Tennessee Jed said...

Interestingly, I sent a long letter to Krauthamer after reading his piece. I also agree with Yoo. Charles seemed to think Roberts upheld the rejection on the basis of the commerce clause while narrowly interpreting it with the tax argument. I basically asked Krauthamer to explain why that would be a narrow interpretation.

I also asked why Roberts should feel the need to protect the reputation of the court? It was never questioned when liberals held the majority. Who gives a rats ass today whether Roe vs. Wade was partisan? It's the law of the land and damned hard to overturn. It seems to me the best way to defend the integrity of the court is to make principled sound legal constitutional law arguments. This didn't appear to happen. He waited to the one that mattered most to our future. We are on a path to universal healthcare, single payer, European weenie 28% of GDP entitlements. Our side has the much harder hurdle now.

Wouldn't sound law have said. You wrote this law not as a tax. It is unconstitutional dunder commerce clause. If you want to go back and re-pass it as a specific tax, you won't have any problems from me?

LawHawkRFD said...

K: I like it.

LawHawkRFD said...

Tennessee: As the lawyers say, "hard cases make bad law." I think that came from Oliver Wendell Holmes.

Roberts' reasoning was byzantine at best. He missed the forest for the trees. I agree with your assessment. The Court is only supposed to address the issues as they were presented to them at argument and in the briefs. Worse, he deferred to the political branches as is his wont, but then told them what they meant, not what they wrote. It's bad enough when judicial activists rewrite the Constitution and even worse when an alleged conservative tortures the Constitution by rewriting legislation.

T-Rav said...

Anyway, these are jackasses all the way around. From the ones at Berkeley who call him a war criminal (as if they would know what that is anyway), to the ones who take such remarks seriously, to the ones in our institutions who knuckle under to such twits (yeah, I'm looking at you, Roberts), I don't know who deserves a kick in the face first.

tryanmax said...

Mmmm, Yoo Hoo, yummy! Okay, it's out of my system.

Now, what I want to know is, one argument the keeps cropping up is that Roberts ruled Obamacare constitutional under the Anti-Injunction Act b/c no one has yet paid the tax, but that it could still be ruled unconstitutional come 2014. (i.e. the law is only constitutional as of this point in time.)

Does that add up?

Tehachapi Tom said...

HAWK
I find this Yoo/Woo interesting but with out flesh on the bone.
Why is it we (America) find that prayer in our schools, God bless America on our money or in our court rooms so offensive? At the same time it is imperative that we treat the thugs of the world in a Christian (compassionate) manner.
What is the failure in our position that has placed us in this oxymoron condition?
Our government has restricted us from dealing with the near Hitlers in a clear and decisive manner.
The result of our timidity the world has descended into an abyss from which very likely there is no way out.

LawHawkRFD said...

T-Rav: And don't forget Goodwin Liu, Yoo's fellow professor at Boalt Hall/UC Berkeley Law. Both entered the national news at about the same time. While Holder and Obammer were trying to put Yoo behind bars, they were at the same time pushing Liu for a seat on the US Court of Appeals. The Senate gagged on the Liu nomination--twice. Even moderate Democrats thought his jurisprudence was nuts. So he was roundly rejected. And where did he end up? California elected Jerry Moonbeam Brown as governor, and Liu now sits on the California Supreme Court bench.

LawHawkRFD said...

tryanmax: Once the principle is in place, it doesn't matter if the law (such as the anti-injunction act) expires later. The principle is already established, and it's too late to lock the barn door after the horse is stolen. If the issue had been solely about the mandate (which Roberts conveniently reclassified as a tax), then there might have been an argument that the case was not yet ripe, since the Supreme Court is only supposed to handle "cases and controversies (somebody has already been affected by it)." Roberts created a true morass by changing the rules and the arguments in the middle of deliberations and leaving it unclear which damned law applies.

tryanmax said...

In other words, that argument is wishful thinking.

LawHawkRFD said...

Tehachapi Tom: Unfortunately, we can only deal with the issues before us, and God in the public forum wasn't before us this time. But don't give up hope. It's likely it soon will be, since the Catholic Church (and my own Missouri Synod Lutheran Church) have no intention of complying with Obamacare on religious grounds. I can't wait to see what Roberts will do with that one. Maybe he'll decide the churches are simply community organizations with no First Amendment protections, even if the government doesn't include that in its brief and arguments.

Now that would be fun. Roberts is Catholic. In the upcoming case, he finds against the Catholic Church. He is excommunicated. Who is Roberts going to appeal to? LOL

LawHawkRFD said...

tryanmax: It's wishful thinking in my book, but what do I know? I thought upholding the mandate/tax/penalty was wishful thinking on the other side.

T-Rav said...

"Roberts is Catholic. In the upcoming case, he finds against the Catholic Church. He is excommunicated. Who is Roberts going to appeal to? LOL"

LawHawk, it depends on which archangel's on duty that day.

LawHawkRFD said...

T-Rav: Not entirely correct. "Thou art Peter, and upon this rock I shall build my church, and the gates of hell shall not prevail against it. And I will give to thee the keys of the kingdom of heaven; and whatsoever thou shalt bind on earth shall be bound in heaven, and whatsoever thou shalt loose on earth shall be loosed in heaven." So there, Martin Luther T-Rav. Peter's successor, the German in the Vatican has the final say, even over archangels. Or something like that. LOL

USS Ben USN (Ret) said...

I concur with Mr. Yoo.
There was no reason or logic used by Roberts or the other leftist judges.

They completely ignored the Constitution and rewrote the this poisonous bill to pass it.

It's so idiotic I no longer have any expectations that Roberts will do anything other than side with the lefties from now on and ignore our Constitution.

He has lost his credibility and is no longer trustworthy to fulfill his oath.
In the event he dous side wqith conservatives on other issues: fine. He might do his job. But he's still a Manchurian judge and a traitor to our Constitution and our liberties.

Yeah, some legacy, Roberts. You puke.

Great post, LawHawk!
Happy Independence Day! Hope you have a good one! :^)

El Gordo said...

Nothing to say except that now I´m even more depressed.

StanH said...

I had read Prof. Yoo’s article earlier, he colored it well. I still contend that it was Roberts not wanting to upend Barry the Boy King, and giving establishment Washington what they what the voters be damned.

Have a great 4th!

LawHawkRFD said...

USS Ben: How long we'll continue to maintain our independence from the central government is now in question as a result of the Roberts decision. Manchurian Judge does appear for now to be an apt description.

Happy Fourth to you as well.

LawHawkRFD said...

El Gordo: Let's lick our wounds, then remember that the Founders faced a much greater challenge than this and still managed to win a Revolution. It's up to us to make sure that the Constitution that they created not be further eroded by judicial fiat such as the Roberts decision. That's part of what the Fourth of July should be about.

LawHawkRFD said...

Stan: Only time will tell. You may very well be right. Happy Fourth back atcha.

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