>> you open up your latest book of the politically incorrect guide to the supreme court saying alexander hamilton says the supreme court will always be the least dangerous branch but that hamilton got it wrong. why do you say that? >> it's great towh be with you. thank you for inviting me. i do look forward to this conversation. i amnd a big fan of alexander hamilton. the bookde i'm working on right now is theg constitutional thought that no one has ever written about before in any book. so i'm very familiar. i've thought about it a lot. i think that his initial view was at the time of the founding the president has a sword that congress would haverd the purse. he calls it the well into the force of the society. what does the supreme court have? it only has judgment. it needs people to agree and

voluntarily obey. look at where we are today. all the great social questions of our times are being decided by the supreme court. affirmative action and race, religion, abortion, gun rights, all up to the supreme court's and the courts. there's a lot of complicated reasons i think for that but the supreme court and the justices are making the most important decisions, not the president and congress and the things people get the most worked up about. you go on to quote alexis de tocqueville in 1935 or so. there was hardly any political question in the u.s. that sooner or later does not turn into a judicial question. was this unique at the time? >> de tocqueville had unique insights. i wish you were on your show because i would love to hear what you have to say. a french nobleman takes a trip to america for a few months, looks around at during the jacksonian period and makes a

number of striking observations that i think are still true today. and what he says is there is no aristocracyis in the united states. there is no social class stability but it's been replaced by courts and lawyers. they are kind of an aristocrat who keep things steady and ensure progress and changes slow and deliberate and because of that we always end up having these political fights. they end up somehow getting converted into legal questions and a judicial fights. so it's not just true then, it's true now a lot of these questions on the issues like abortion and gun rights are settled by legislators ands othr countries. by the courts. ....

our federal government would compete and fight with each other to control policy. they did not think one branch would win it. they thought the constant fighting between the three branches would be good because it would make sure that when the government action agreed on something it would represent a broad consensus. this constant fighting would make sure liberty would be preserved. but, whaty happened in reality s members of congress i worked in the congress for a senator or an aunt and i worked for presidents. they actually do not mind if the supreme court decides in his controversial questions. you don't get reelected by

saying i'm going to vote onu abortion, race, guns, religion, bring it on. that's not to get reelected to congress. you get reelected by it making sure the district gets enough federal spending and follow the hard questions it kicked over to the supreme court. it is almost the presidents in congress are happy to kick these really difficultnt questions ovr to the judiciary. the crux of what a quote from your brook crisis and command this came out in 2010. you right along that same line the delegation of power to the executive branch agencies serve multiple purposes. it allowed congress to shift responsibilities for decisions that are political controversial, call for difficult choices based on chlogical and scientific information an involve high but unpredictable stakes. members of congress could focus their limited time and energy on the spending programs, earmarks

and tax breaks for constituents and interest groups supported the reelection. i knew it telling so far no one is taking responsibility. >> the passage in a much more poetic when i wrote it. it does not trip up the talk when you hear it out loud. i would say this desire to slough off or avoid tyresponsibility is the featuref today's politics the founders did not anticipate when they wrote our constitution. they did not provide for this large administrative state we have now. the arguments of the supreme court this week some elements of it whether it is constitutional. we have one feature of it i think it is congress and the executive branch kick over hard decisions. this time not to the courts but to the epa to the federal reserve to the ftc all the alphabet agencies. and so they can say i did not

decide what pollution in the air from car should be it's those crazy bureaucrats at the epa did it, aren't they terrible when in fact congress and the president pass that legislation that gave him the vastco power. >> is going to close this entire program with their quote from the politically incorrect supreme court but it seems fitting to read it now given our discussion. the constitution into ceful restoration. the pilla on which it was originally constructed limited andni defined powers, federalism individual rights and liberties, separation of powers are as true and necessary as ever. but they have been obscured, overgrown, altered and permitted to decay. the constitution needs a careful restoration. where we going with that? >> i think we live in a very complicated governmental system. we do not know who is responsible for certain

decisions. a lot are made by the institutions like these agencies like the supreme court. we have a government that's much larger than the original vision but we look at the original vision fairly minimal governments. you mentioned tocqueville are this too. our society is driven by private sector decisions. by you and me organizing our own clubs. organizing our own activities our own institution local dispersant self-government. what we have today something that looks more european more centralized not quite european yet but much more centralized much more dominated by washington d.c. dominated by executive branch agencies. the question repose at the end of the book is this what

americans want do they want to return to the lighter hand government or are they happy with the bureaucratic technological government that we have today? we get where we are today in your view? >> it has been a long time i would say evolution. it's gone in fits and starts. in the book we say if you look at some until the new deal fdr we have permanent large executive branch agencies driven by the emergency of the great depression before that we have big governments during wartime the civil war it was huge world war one the government was big. constitution allows the power of thegovernment and the power president to expand like an accordion when you need it. then the founders site shrinkut hoagain made it permanent ever since then it's turbocharged by

the great society lbj after the assassination of president kennedy. that is only the government we live under today. i might say the person who envisioned all of this. i was a genius was not alexander hamilton it was woodrow wilson might not have been the best president but he was certainly one of the smartest presence off visionary the kind of agencies administeringge government natue issues and congress delegated the power to the agencies they got it from that european. >> john yoo you talked about we wrote this book. he's a professor at st. thomas law school and someone i met but we work together in the justice department almost 25 years ago

now 23 yearsen ago. the first book we wrote together. right of that other authors make sure ideas better. >> how long you been teaching uc barkley? this is my 30th year started in 1993 i guess i was 26 years old. [laughter] i knew if i could get a job i'm never leaving. what you teach there? i could teach a wide variety i teach constitutional law, separation of powers, federalism, judicial review i also teach courses related to national security, foreign policy, i also did sometimes sometimes theyteach things aboul philosophy. critical theory. natural law or law and economics. i'm allowed to teach. i trench the poor students had

to join on the inaugural voyage. [laughter] >> ideologically are you a fit is it uncomfortable? [laughter] >> i would get fired by the chancellor iff i claimed it wasa good fit. [laughter] the way i used to think about it was i am like a west berlin. i am a shining example of capitalism and free markets liberal democracy surrounded by a sea of marxists. >> of barkley. i love the university. it is one has been at the forefront of free speech and certainly conservative like me benefits from tenure and free speech university setting much more than your left wing marxist professors. i've always been grateful i've had the chance to teach there. and you might research and work and interact with some of the

brightest students from cultures that bring the most interesting students a class but. >> you ever feeler alone? do the students to challenge you, it does the administration challenge you? >> i feel my nature identifies like this before went to barkley. but certainly since being at barkley i become a contrary end. when i hear someone say something why is that is that really true? oh, i agree with you. i think being at barkley that which does not kill you makes you stronger. i think barkley has made me stronger by constantly challenge me students collect speakers visitors really challenge you with your ideas where they come from what is the evidence for what you're saying? so i love that environment.

i've only been environments where i found a lot of people were conservative a few times in my life i found a very strange place. >> white view called the politically incorrect guide to the supreme court? chris part of a series of politically incorrect variety to i think the economy. i also thought it would politically incorrect because it tries to show why a supreme court today based on its history has come to original is in the way you interpret the constitution and original is him is not as criticsri say it kindf disguise or conservative politics we explain our examples that has been wrong terribly wrong like the dred scott decision we point out places were original is improperly used

leads to better results we would not have had terrible segregation for so long. and you try to explain why the current court with cases like dobbs on abortion the gun rightg case and religion is not that it's trying to pursue what conservatives want politically is trying to use original is him to properly interpret the compass constitution. >> you talk about the dobbs decision in this book. in your view it was at the right decision by the supreme court? >> i think so i don't think that's a conservative view we show there are many liberal scholars who thought roe versus wade was a terrible decision and the way it was done. personally i am pro-choice as a policy matter i would have been into the dissent in dobbs. the founders thought most policies were oak up to the political process that override

free speech but when the constitution is silent most of those decisions for us, for you and meet to decide by electing our representatives and letting them thresh out a compromise. that's her seeing happening across the country today. one thing is not usual for life and death decisions to be up to the political process for gross euthanasia is? the death penalty is an abortion is now. >> jon the cynic in me says politicians were able to ride roe v wade for 40 or so years i never have to really vote on it. >> yes. it is sunday morning you are no cynic. i don't think you need to be a cynic to have that view. that is the description of thesr way things have been. you are seeing particulate with the republican party gosh this

pre-dobbs was not so bad now they're getting killed and the state-by-state constitutional amendment fights legislative fights about abortion. the fact i think our approach pro-choiceside is doing extraory well. there are a lot of republican politicians who are unhappy they have to take a vote no on abortion. it is easy to be pro-life i think politically when you did not have to actually immobilize into the hard work of passing legislation. i also think the voters are not in favor of a complete ban on abortion they were some kind of reasonable compromise. that makes it harder for the politicians to figure out where that should be. but that is their job that's why we elect them.se to make compromises on behalf of all of us but. >> eight or so i'll deal with the law. eight or so i'll deal with the

law. armed conflict. and other things the law of presidential power they all have a law aspect is that fair? >> yes i'm fresh i teach a law school. but also i like trying to find a legal thread and things that are important to people i do not claim to be an economist. i do not claim to be a military analyst but there is a legal angle to a lot of areas that can help people figure out what the policy should be in that area. >> before we leave law class today i had a couple more things in the politically incorrect projects were not charging big exit route to take advantage of that. [laughter] you right marbury versus madison is the greatest of all supreme court decisions. >> marbury versus madison is a decision by chief justice marshall in the very early years of the jefferson administration that says for the first time the supreme court has the c right to

invalidate laws passed by congress. an executive asked by the president that violate the constitution. if there is no marbury there is no other great decisions like brown like dobbs or rove depending upon your perspective. ifif the court can't interpret e constitution and say certain acts and we block it that's a much smaller court it's a court and many other parts of the world you don't hear at the supreme court thanks about policy. unless you are a lawyer was a te supreme court of great britain think their parliamentary purse legislature decides everything. we could have had a supreme court like that if there were

never a marbury back to being a cynic john yoo sinex could probably predict the votes on this supreme court on anyot majr ideological issue. this is been thinking about like abortion, grace and affirmative action. there aren't that first year of prominence. for example in the criminal justicee cases the law that will apply to new technologies for unusual combinations. so for example the court has been very skeptical of the use of new technologies to conduct search and seizures by the police. the court has struck down walking route neighborhood with heat detection you find this will seem so charming.

to find illegal marijuana growing operations if that were illegal once upon a time. tracking devices on people's cars you do not have to followw athem court to track the locatn of your smart phone and my smartphone in those cases you see conservative justice like justice scalia chief justice roberts all voting district and the power of the government when it is applied ton technologies. voted to expand juries in criminal trials that effectively and belted the sentences of thousands of people. those in the weight much more important to the daily lives where the wall street journal. and so you doo not see the other more interesting combinations of so much.

1986 got 98 votes. ruth bader ginsburg in the '90s what's happened to the process 30 years ago. my argument has been i think we set it in the book. as you saw this power gravitate to the supreme court the most important questions in society they did not want to decide it. it only became natural over time that politics would start to invade the judicial process. the judicial confirmation process as the judges became more powerful it is no surprise the political system would try to start influencing if you are going to say suppose you care deeply about abortion. until dobbs louis can affect

abortion policy in the country was by trying to affect who gets appointed to the supreme court. between roe versus wade and dobbs all the politics that would have been devoted to passing legislation about abortion all got focus on who's going to be on the supreme court it was only inevitable as a supreme court became more powerful the appointments process became more politically important we saw all of the instruments of campaigning start to be applied to the confirmation process. i mean this is a possibility and source withdraw from the important decisions and sends sd them back to the legislatures, maybe in 20 years, 15 years were going to start seeing more consensus votes for justices. maybe less a politicking which was the case for most of our

history. >> back to the guide to the supreme court. the importance versus maryland tour constitution and political orders almost without what? >> for some scholars who would say is more important in the marbury it's a legitimate debate. it's a decision the supreme court upheld the constitutionality of the national bank. one of the great bites of the first washington administration between hamilton and jefferson it only gets resolved by the supreme court almost 30 years later. but in that early fight people may be surprised to learn the constitution does not authorize the creation of a national bank. it is not talk about the federal reserve or its predecessor the bank of the united states. so it jefferson said classic jefferson is a strict constructionist. the constitution doesn't say arr herlogic great institution like banks and universities then you can't create ite it's up to the

states. hamilton says anything that's necessary and proper for the good working of the government to achieve its ends in the constitution is allowable. washington takes hamilton's advice signs thehe bill chief justice marshall the most play droids hamilton's arguments. the arm is exactly the same as it hamilton made to george washington in 1789 and macola says necessary proper clause gives congress the power to create institutions like the bank that allow us to reach the goals of the constitution like collect taxes, borrow and spend. but the reason it is important is that it's a decision that underlies the creation none of them are much of the constitution but it is and macola allows for the creation

of large new deal state. >> thank you for joining us on book tv for in depth our monthly program two hours one author or his or her body of work. this month you see law professor here's a look very quickly at his books. the power of war and peace the constitution and foreign affairs after 911 came out. war by other means insiders at account of war on terror in 2006 executive power from george washington george w. bush 2010. claiming globalization international law u.s. constitution and new world order global welfare came un 2014 striking power how cyber robots

space weapons change the rules of working out 2017. and the in 2020 defender and chief donald trump's fight for presidential power itame out. the politically important correct guide to the supreme court just came out thise year. we want to hear from you we been talking for about a half an hour now it is your turn. questions comments concerns 2020 code 7488200 if you live in the east and central time zone. (202)748-8201 for those in the mountain at pacific time zones and if you cannot get there on the phone line still want to make a comment try our text number 2027488903 please include your name and city if you would if you said a texan at some point we will scroll for social media site as well so you can get an idea of how you can participate in that way as well.

so john yoo you worked in the george w. bush judicial justice department. thank you. is it fair to say you became known as a torturer or lawyer? >> i would not use those words. trying to be vernacular here and condense. yes of course that's the most controversial decisions we had to make after 911 which became most associated with me for whatever reason we were confronted after 911 with a series of decisions that were prompted by the unconventional nature of the enemy. the effects were seen between the war of israel and hamas are

of a singular nature of a lease on 9/11. how do you fight an enemy that is not really another country? how do you fight an enemy that does not wear uniforms, blends into the civilian population, launches attacks to kill civilians does not distinguish itself from surveillance the whole point several of the books you mentionedme the great achievement on the laws of war over thousands of years have been tried to restrict fighting to the armies and protect civilian life and civilian resources we had to make a series of decisions or rehab war at all. you get a group not a government. before 911 presidents of both the parties treated terrorists as criminals uss cole had been

bombed before it 911 we sent the fbi out to secure a crime scene that's up everyone thought about terrorism before 911. how do you hold the people who were captured in this work? where do you hold them? how do you interrogate them when they do not follow the geneva conventions? arare you allowed to target the? are you allowed to try to kill them outside the battlefield which is president obama's dronc campaign. in the months just within a year at -- also how you surveilled them are you allowed to try to search through innocent civilian communications to try to find their hidden e-mails and phone calls?s? all of those were i think unfortunately new questions for us we had to decide all those in about a year. that legally at the time the united states was bound by the principal of humanity we had to treat everybody that's detained

but we are not limited by miranda were not limited by the civilian criminal justice rules we use for tensioned interrogation of criminal suspects with the united states. terrorists are not entitled to our enemy permanent prisoners fight according to the laws of lord and obey the geneva convention. excellent quote from your book war by other means talking about yourself. this was not a role i had ever wanted to play. i welcome the opportunity to serve the nation and after words returned to academia to continue working on constitutional and international questions. the last thing i wanted to do is to devote my courage of the study of the issues surrounding terrorism.

and it wrote that a long time ago but remainsti true. it's a theme of all of my books my parents are refugees and ultimately i am too from the korean war. if united states president truman had not come to the rescue of southsc korea i would have grown up in eight north korean a labor camp. i think the united states has been extraordinarily generous to lots of people around the world saving them from these terrible regimes. i wanted to understand that understand why presidents why the niceties did that. when i was asked to serve in the government wanted to this was before 911 george w. bush administration was going to be domestic policy focused

padministration. but at the same time 911 happened on the government was called, upon to make these difficult decisions. i was in the difficult decision to make some of them. i was not what i wanted to do i will say one other thing meant looking back on the decisions the place i often looked for inspiration and guidance was abraham lincoln in the civil war when they thought the kind of war and conflict that the nine states had to fight had been totally unforeseen and raises similar questions are all the members of the confederacy americanse are the citizens to? we have to give them different protections them away to war time?

lincoln was a lawyer and he had not just a very good way of putting things in terms of a publicer understanding my thougt he was quite a good lawyer some of the same issues occurred afterrr 911. other times in american history other american leaders to put a source of guidance and inspiration. to quote on executive power crisis and commands it's about abraham lincoln. the unique nature of the civil war force the lincoln administration to reduce civil liberties in favor of greater securities. was at the right decision. >> that's the right decision in this sense the things he did brought the united states through the civil war.

and restored the union. and sometimes he might've gone too far. the decisions the bush administration had to make after 911. put yourself in the position of those decision-makers at that time. people wrote books for years and decades a after accused him of being a dictator for some of the decisions. restrict some free-speech rights particularly political opponents sometimes. you could call the emancipation proclamation's one of the great takings of private property. although i think he had constitutional justification for all of these. i think it is very hard lincoln could have successfully won the war on the union without the great expansion of a powerpoint

without some of the narrowing of liberties. link it was i think ever drawn to extremes or maybe theory. he might've said were having an emergency situation we have to expand the power of the presidency at mabel's civil civilliberties have to be reducn some way radical republicans in congress without the concentration should be suspended. some people thought at the time we cannot have elections during this time. very authority of the governors under attack the constitution is on theth suspended something tht talks about civil war. because of his commitment to the constitution he did maintain the basic principles of our political system to this incredible crisis. i'm not saying 911 was a serious effect of the countries of civi, war. i admired the way it lincoln brought us the civil war by a

commitment to theln constitution and he was fairly recent about about things. i was hoping to do the same after 911. >> for those of us still in one fell what is habeas corpus? >> i'm sorry refers to ancient english right which is mentioned in ourt constitution if the government ever detains you you have the rightde to go to a cout and demand the government show why you are being detained what legal authority the government. it is considered one of the great basicic freedoms of our system as it is. >> our guest's john yoo morn in seoul, korea undergrad from harvard, law school, gayle, clerked for clarence thomas. was he general counsel on the senate judiciary committee for a couple of years professor at uc barkley of course since 93 and spent some time in the office of legal counsel at the justice department under attorney

general. now to your phone calls and new york please go ahead you are on with john yoo. >> good afternoon. i could not agree more with the professor john yoo bill clinton trade the first world trade center terrorist attack on february 261993 like a federal crime like a bank robbery. the reason why i'm calling is i like professors analysis how he thanks it's going to pack the court again. also does he anticipate trying to circumscribe first and second amendments through different ways? >> thank you mike. i hope one thing you get from our book they dip court packing is not new. it is something that is come up before in our history. when there's been a lot of political opposition to judicial

decisions. that's one thing that worries me is the last example come up in 1936 , 37 what fdr tried to add the sixix justices to the supree court because he felt the supreme court was in think it was trying to put constitutional limits and struck down several first new deal acts that expanded the power of the government from agriculturalhi prices to industrial production quotas. the supreme court struck down a number of independent agencies we all have we have struck down earlier versions. after fdr when the senate 1936 reelection campaign he went and tried to pack the court. he was so cagey and clever it very fdr leg.

it's not really to overturn supreme court decisions it is because the justices are so old there so many old justices they need help to the assistant justices to help the senior justices classic fdr haven up fdr party had two thirds in this house, two thirds in the senate they could have amended the constitution to set its size overturn the decisions. rejected proposals thought is an assault on the judiciary. i had to say what other people first proposed court packing was not a democrat it was actually fdr's relevant relative teddy roosevelt was one of the earlier proposers off packing the court because he was frustrated by the supreme court after he left he, woodrow wilson the progressives of their time before world war i

thought the supreme court was and it was getting putting the brakes on progressive legislation they first started floating the idea ofey a packing supreme court then but the idea it really goes back to thomas jefferson who really would have loved to change the supreme court because he and john marshall were constantly at odds. like people related in virginia could be. we are distant relations jefferson unit wrist really wasy frustrated with the federalists he felt were treated to the supreme court suny first that if court packing. the one thing i thought was shocking to me was during the 2016 democratic primary people may remember the candidates were asked to show of hands if they supported court packing for the only candidate who did not raise his hand was joe biden.

all of the other people running for president in the democrat ticket in 2016 or in favor of court packing. i am glad it has not succeeded this last four years but i worry about the future whether it's going to return and if court packing succeeds then i think the supreme court will become like the court did not succeed in packing the court but the justices as we described had become so worried about further tax on independence they change their minds and upheld the rest of the new deal. >> 's nine the right number question or. >> or something in the constitution is at the has to be nine the shocking thing and after it was an even number it is got to be odd. it's got to be an odd number i 'don't think we want to have tit-for-tat reciprocal courtt- extension every time the party

gets in power they will have the supreme court of china which i understand is 300 supreme court justices. i think and nine, 12 is probably a good number. the important thing and this i learned from judge larryui silverman who passed away last year. an important provocative thinker i would like toim say. he emphasized to me the court is not really a court unless people can sit together and deliberate. being charges on a court is not about voting that's like eight legislature, people show up, they vote. court beats small enough in size you can have a discussion people change their minds and then the court makes a decision as an institution. i could seat 20 bringing way too many. but nine, 11, 13. >> jon at the senate judiciary committee recently there was a

hearing about the supreme court based on someone you clerked for, clarence thomas and some of his preference. what did you think on that hearing and their desire to subpoena some of clarence thomas' friends? >> unfortunately the motivation for this is somewhat motivation tfor court packing. it is an attack on the justices and their independence because of disagreement with her decisions. this is a very dangerous stepper going down. we spent time with him for a year, i find the idea that he ewould go on trips with friends and those friends would get him to change his mind about the constitution i find it ludicrous. can services do not know what to think until he makes the decision not the other way around. i clerked when he was much

younger 30 years ago. he is a person who is really fixed and his ideas he is very clear principles he's the most committed originalist on the courts. he truly believes in a colorblind constitution there's few animating principles, which he draws from the declaration of independence. he is the only justice hua cited the declaration of independence as authority in judicial opinions. he's driven by these basic principles for it is not going to change his mind. i worry to undermine our proposed which is a plan to create a body, established by lower court judges will take in claims of conflict of interest by the supreme court. it's a little unclear if there some process to force justices to step off cases there seems to be a conflict.

that has enormous conflicts of interest. i would say the justices have had in their history cases of ethical improprieties i don't think anything being talked about about trips gifts late justices have decided the case is like dobbs like affirmative action. w there's pressure on the court disliked fdr in 1937 force the court to change direction with its external political. >> lois thank you for holding your aunt with author john yoo. >> caller: hello good afternoon. c-span, thank you for what you do. my question is because every 10 years the census is taken. the republicans are the democrats will do immigration reform. get stacked because legislatures

and territories are divided and presented according to numbers i think you get the gist of what i'm saying. i am a little nervous would you please address it? thank you. a >> complicated about immigration. personally someone who has benefited i do not want the nine states to change. i think it's been good for the country. the country replenishes itself with immigrants is one of the sources of strengths. we let in -- we nationalize about 1 million citizens a year. i think we could easily double or triple that we could have 2 million or 3 million i would be in favor of that actually. the problem is what you are referring too and what you see in the headlines these days is illegal immigration. what is the government going to do about controlling for large

flows of people across the southern border who are entering the country illegally? the latest figures i saw suggest something like we are having up to 2 million entries a year maybe two and half million entries a year across the southern border. what are we going to do about that? it's not necessarily captured in the census of members of the house allocated to states. it has a lot for federal benefits, federal money aliens into account. i would say there is a constitutional issue here. the constitution surprisingly does not mention border control the only power the federal government receives in the constitutional text is the power of naturalizations deciding how to become a citizen. for a long time in our history

the border was not controlled by the federal government. we are not actually historians are digging into how it works. that open borders for a long time because we wanted people to move to the united states. we had an empty land we still have empty land. one fight going on now that has a constitutional issue behind it states like texas. women trying to toughen up its own border control because governor abbott argues the biteo administration has not been for paidthat is behind the constitutional issue. states actually play a role in border control and immigration policy the supreme court the unfortunate chinese exclusion act it's purely federal and states are ousted. once aliens enter the country they enter into a states,

immigrants have an enormous impact on states. so what can states do to try to help ensure an orderly process at the border is not a constitutional issue that could impact very difficult political like we have in our hands. >> kathleen is in dayton, ohio. you are on c-span. jon, you said earlier many leaders and other u.s. officials avoid taking responsibility. and it went to ask one quick question and then a longer question, how did he feel about gore decision and should thatnd decision have ended up? i my next question is this. i am reading a d.o.j. responsibility report it's an

investigation into the office of legal counsel memoranda concerning issues to the cia's use of enhanced interrogation techniques. on suspected terrorists. the opr report concluded the memos seriously flawed arguments they did not constitute thorough objective orga legal advice. accusing both attorneys of professional misconduct. announcing its intent to refer its finding to state barred disciplinary authorities. the report for its inconsistency with the professional standards of applicable to the department of justice attorneys. the classified memo flawed justificationda for enhanced interrogation application particular is vision concerning water, torture, sleep deprivation and stress position. sue and kathleen could you bring this? >> i want to say to mr. john yoo

do you feel the attorneys in the office of legal counsel, which change the torture laws the rules that were already in standing, do you think the attorneys in that office should have been held accountable? >> host: thank you memo leave it there. john yoo how would you like to respond? >> guest: that's a perfectly fair l question. i think the report you read from was part of the process of holding people responsible for the decisions they make in government. this was a very difficult decision. no matter what we did people will be critical and unhappy. i would note when that report went to the office of attorney general of the democrat attorney general and the obama administration i might add the report was overturned. the attorney general office decided not to pursue any of

those claims share the recommendation that people ought to be professionally punished in some way. one thing that is happening that you saw there and i worry it we see this now the true employers. i think were going to see more of it. you do have lawyers that have to make decisions under difficult circumstances and areas where there is not a lot of law. anyone who claims there was a lot of clear law back on 911 about what to do here is not being honest. it was a difficult choice in part and that's why i compare it to a civil war the civil war's s another time the legal authorities did not answer difficult questions they had no strew of 911. after words towards the end of the bush administration we came to more of a settlement and now we have clear rules but we did not have those on september 11,

2001. i think there is a process. what i find it worrisome as were starting to attack lawyers claim their acting outside the giving advice that's outside the law when i don't think that's the case at all. what's happening is they are they'rebeing attacked for politl reasons. then in thehe future you have lawyers and asked some questions are going to start asking to actually provide the client with a full range of legal advice? or do i change at cabinet because i'm afraid someone of the future's going to come after me with the bar association. even an 911 is working on these issues i knew this was something that could happen. it has worried me ever since we are touring the legal into a political battleground. >> joseph fayetteville north carolina text message. is it time to get rid of the patriot act?

>> that's an interesting question. i spent a chapter on it one of my books i did work on some parts of the patriot act. the part joseph is referring to is not 90% of the bill which was modernizing a law called the foreign intelligence surveillance act. back then no one had heard of now people talk about all the time i'm impressed with the amazing level of knowledge that people have these days. one thing pfizer did i can see how it has become controversial or tried to reduce the wall between gathering information for foreign intelligence purposes they have a ensuring of people involved with domestic law enforcement. after the abuse of the nixon years the government and the courts together erect a wall

with the cia and the nsa knew and what the fbi knew that allowed several hijackers slip into the country. foreign intelligence agencies knew they were terrorists but cannot tell the fbi about it to find them within the united states. after 911 we try to pull the wall down at the last seven years this has been one of the problems it has contributed to the fighting over the russia hoax and the fbi investigation into donaldd trump. their fights weren't used to turn out bad information in the fbi continue to get them. the justiceju department inspecr general has identified this as anas issue. again this is something that has the same features as what we

were just talking about until edition using drones there is no perfect policy those policies that can benefit they're going to have cost. the advantage of being able to collect information terrorist threats particular after octobe. particular effort withdrawal from afghanistan and the return of the cap taliban and the rise of the terrorist groups again i was really worried to a pre-911 mindset we will errupt barriers between national security and domestic law enforcement to high even though it might have the cost of infringement on civil liberties. as you are asking about with lincoln. is going to be cost and benefit to ever to make hole in compensate people who do become subject to unwarranted

surveillance in the united states but the answer is not to shut down your efforts to find terrorists and foreign threats abroad. >> host: john yoo before you get too far from ourie friend she ao asked in decemberr of 2000 what your take on that? >> that was this difficult one-of-a-kind case. the way it came out is not that i would have thought. it has echoes in the 2020 election. the state legislature chooses the constitution says it sends the post off to washington. every state has delegated that two popular vote too. so the problem with the bush versus gore is not portas legislature the supreme court constitutional

limits on the power or participation by a governor or court system. what happens in the voting process become so close to her loso fraught with uncertainty tt we are not sure how it comes out. we have a very strict process for when you get the electors chosen and when you get them sent in. as a fundamental problem the supreme court had to intercede because the florida courts were intervening too much i could see that happening again. i think donald trump and his supporters are utterly incorrect that happened in 2020 i do not see any real evidence from my point of view of something like fraud or uncertainty in the 202 election. that would have caused the neat first state to send the electoral votes in contradiction in the absence of a popular

vote. >> 2020 john yoo yearbook defender in chief donald trump's fight for presidential power came out pretty much a quote from that book. trump has defended the constitutional text structure and dig for independent vigorous executives he has fought off the efforts of progressives in ord to revolutionize our constitutional order by investing cover more power in a permanent bureaucracy of virtually limitless authority. sure that it's what he would agree within 2024 should he win based on what he has been saying lately. certainly this is not a description of his conduct as an candidate after 2020 there has been sufficient change to outcome the election. i wrote the book people were making or making arguments to

narrow the presidency because donald trump does not happen be the person they like they never would've made under the obama administration. and to me, what is more important is to make sure the powers of the office properly understood properly rooted in-- the constitutional laws is maintained. for future presidents in cases of real emergency when they will need to exercise them. in t fact is relying on a lot of presidential powers trump was using, obama was using an reagan and so on. so that is what disturbed me what was going on with trump. so hated it was causing people to make the mistake of permanently limiting presidential power just to stop trump. i went through a lot of things are controversial about what he did and tried to show the arguments he was making.

or not that much different than obama, bush, clinton, reagan,mo the modern presidents that came beforehand. >> in your book crisis and command you talk about that a little bit. theok notion of it unchecked executive yielding to dictatorial powers to plunge the nation into disaster. it is a myth born of the vietnam and watergate. congress have always offered ample ability to stalemate and check in executive run amok. >> it comes to my time working in the senates and of course reading histories. congress can always get its way up at once to because it has the power of the purse. if congress want something to stop they can stop it like that if they really want to print all they've got to do is stick in an appropriations writer. what i was working in congress i wrote lots of those. everybody in congress knows how

to do it if they are not doing it it is because politically congress does not want to check the president. there are going to be cases where presidents go too far. but they do it congress isn't stopping is because congress doesn't want to stop them. i have found this idea that presidents are dictators. they are seizing all of this power. i do not find it to have been true as a matter of our history. presidents have had very broadro powers during emergencies like fdr, like link it in the cases you mentioned. like jefferson or woodrow wilson they've had these broad powers. our constitution give presidents that kind of a power and here is the rub. because the circumstances demanded it. one thing in the crisis command book i wrote about or failed presidencies we don't write a lot about failed presidents a lot about presidents we admire but i tried to discuss with

every great president they often failed right around the same time as the great president. abraham lincoln is preceded by at wasn't about to say cap you patbuchanan but is james buchan. [laughter] was often thought to be the worst president in american history. be the worst president in american history, because faced by the same circumstances, he didn't use presidential power broadly. i think of nixon as an example, he claimed broad presidential power to do things like surveil for domestic enemies and so on, but actually the circumstances demanded. he was not living under emergency and shouldn't have used that power. part of the secret of that presidential greatness making sure they match the circumstances and that'sst actually really most statesmanship than constitutional law. >> before we leave this area of discussion i want a quote from

washington post op ed that you wrote recently. donald trumpro and allies have began mapping out using froth to punish critics and opponents should he win a second term with the former president naming individual that is he wants to investigate or prosecute and associates drafting plans to potentially invoke the insurrection act on first day in allow him to apply the military against civil demonstrations. is this an overstep of presidential authority in your view? >> yes, so people may not realize there is something called the insurrection act and does allowow the president to cl out troops but not just because the president feels he's surround by enemies or surrounded by resistance to his administration, there has to be -- and that simply to respond to protest, it has to be civil unrest of a kind that prevents law and order that prevents law

enforcement, prevents execution of the laws from occurring and there was some of that in the summer of 2020, i think maybe portland might have reached that stage but most of the protests we saw during that period would not have called insurrection act. i also worry when i read the reports of president trump and his advisers seeking to use the justice department to investigate and prosecute people who are seen as political enemies, i think actually the justice department, first i don't think that's proper use of discretion even though the president is in charge under the constitution of executing the laws. i don't think prosecution properly used in our system is for going after your enemies or investigating your opponents and people in the justice would refuse to carry that out.

often he would say crazy things, like, w outlandish things and there would be a big difference between what he was saying and then what he actually did. and so i hope this is president trump blowing off steam, complaining like a lot of presidents have. when you listen to oval office tapes of nixon and johnson and kennedy, they say all kinds of things that are credible to modern ears, you know, complaining about this person, saying let's get that person but in the end they didn't do it. maybe nixon did a little bit of it but johnson and kennedy i don't think did and i hope that this is more politically blowing up steam because i think it would be dangerous for our country and i think you would have outright resistance in the government if the power of prosecution wasow turned for ths political purpose. >> if you're joining us, this is book tv in-depth program, two authors of u.c. berkeley law professor john yoo and john from

richmond, virginia, you're on the air. >> john, are you with us? >> yes, i am. >> please go ahead. >> okay, my question is in the similar vain. it hasy to do with the massive government surveillance and in particular more than the surveillance itself but the concealment thereof which entails typically nowadays the use of stingrays concealed, parallel construction so that they can use evidence in court that was obtained illegally, et cetera. and my question really is, what is the constitution from perspective say about the right of the government to conceal questionable activities and how does this affect our right to self-governing? >> yeah, that's a tough question and it goes to the root of having intelligence agencies, really, and this is something

that people worry about all the way back to the founding. this is do you want a government that has secret agents because to be successful at some level you have to keep it secret and if you keep it secret it makes us hard for us to hold people accountable for the use of the power. i don't think there's any perfect solution. one thing you saw with abuses of fisa and foreign intelligence by the fbi and its investigations of president trump is that you had the justice department, inspector general take a look at it. you had a congressional investigations, ultimately you had a special counsel appointed under attorney general barr, mrm

report. eventually those are the tools that ultimately you have to use. now one thing i think you're suggesting john that is certainly true, these are all after the fact. these are all after abuses occurred or mistakes were made. it'sth very hard, i think, to do it beforehand because of the need to keep it secret. so i agree, that is obviously, this whole system is intention with the original constitution. the original constitution doesn't prohibit it but doesn't allow and hard to do in ideals of open transparent government and congress debating bills openly, the president signing bills in public, the courts adjudicating decisions in public, so our system is made in accommodation because of the difficulties because of the foreign threats.

and, again, like i mentioned in the earlier answer, i do agree, civil liberties by having this kind of system but i think the benefits to our security are so much greater that maybe the way we do it is at the back end so, for example, i said maybe one answer is that any of the information, courts should throw it all out. if it's really being gathered to protect us from foreign threats, from foreign attacks, then let it be used that way just like we use signals intelligence on the battlefield to immediately act, immediately protect our security, but maybe the way to preserve liberties is to allow fisa information, information gathered this way to be used in

a prosecution in federal court. that would limit the ability of the fbi and the justice department to bring terrorism-related or espionage related cases but maybe that's also the price we ought to the pay to make sure that this information that's gathered in the secret way that's not very transparent doesn't go too far the as to the really undermine our system. >> advocated or recommended torture or any other interrogation tactics. >> this is the issue for lawyers. i think the hard job is people we elect to office and the law can give you a range of

outcomes. >> judges are like the referees or chief justice roberts in confirmation hearings when the really hard decisions are the people there have to choose the policies. all of the questions, surveillance, interrogation, the law says this is the permissible range of things that's you can do but what you choose to do, that's really the difficult question. >> threats of poor treatment or promises of better treatment oren in harmful physical contact, solitary confinement is not structure and marine do not commit torture in bootcamp.

>> one thing that we wanted to make sure was that they were safe and so 25,000 americans had been trained on these procedures and so we actually said, you know, you -- we can't tell you what to do but if you want, you should look at things in military, like marine boot camp, for example. we like to think our military is committing soldiers and operatives when it trains them. that's ultimately where the government came out. that's a far harder job with the lawyers saying what can you do. >> thank you for the opportunity to say a few things. first of all, mr. yoo, you

talked about conflicts of interest with justice thomas. it's interesting and you also mentioned about politics works. sotomayor heard cases on publishing house that was publishing her book so apparently that's okay on that side, you know, the other question i wanted to ask you is with your brilliant views how the heck do you ever survive in usc? i had to leave higher ed. >> i think your example of sotomayor, accusations she was

acting unethically. >> but that goes to my point that i think this attack on the ijustices is really political because if you look at the meeting that we were talking at the senate judiciary hearing with the subpoena that is were issued, they were issued to harlen crowe and they wanted to trips or gifts that harlen crowe to justice thomas.

they didn't issue any subpoenas to any of the people surrounding the liberal justices. it's targeted just to friends of the conservative judges, it's obvious to attack certain judges because of disagreements with their decisions. i actually don't think the sotomayor case or the cases with justice thomas, justice alito there's any showing remotely that these trips or gifts or whatever hadel produced any chae in the way they decided the cases, that produced any real conflict of interest. do we actually see them changing their votes and changing their opinions because of this? i don't see onn the parts of the

liberal on conservative justices which in my mind there's dust being kicked off to try to impugn individual members of the court because like in 1937 the politicians just don't like the way the justices are interpreting the constitution and goes back, the supreme court has become more important. you are seeing the use of regular-old political campaign techniques and tactics being used now against judges and justices because the stakes of what they do are so high to many people. >> as the former general counsel at the senate judiciary committee, were you surprised, shots, et cetera about the committee hearing, dick durbin and john cornyn getting into it. the republicans walking out? >> yes, when information general counsel erin hatch was the

chairman they disagreed a lot on constitutional issues on legislation and who they would like to see on the supreme court but they never went to the leverage where you saw the committee hearings, half of the committee members walked out. i've never seen anything like that happened. i've never seen subpoenas voted out when there's not a quorum or when the committee time is over. i mean, there are serious doubts whether the subpoenas are actually legitimate because they -- they are in violation of the senate rules. usually in the senate you would see, they would reach a compromise in the end. i was surprise bid how aggressive the issuing of is subpoenas have been and surprised to see the republican senators leave. that had never happened before

either. i guess neither side wants to the reach a compromise or a settlement. >> are you surprised at donald trump's attacks at judge and clerk in the new york lawsuit case? >> yes, i -- well, i can't say i'm surprised. i can say he's disappointing and i understand what he has done. trump has lost the case. the judge has issued a decision saying that trump the and his organization committed fraud in the markets of new york by inflating asset prices. all of the proceedings areiv abt the penalty is going to be really, what is the -- fines, what business conditions are going to be imposed or is the trump organization be kicked out

of new york entirely. i think what trump has done he realizes he's lost so he's just turned it all to political advantage.he he's treating like it political event and not legal event. a lot of the things he's doing are going to harm him in the legal proceedings, they are going the make -- they are making this judge angry at them. he's showing -- he's questioning the judge's legitimacy. i can't think of anything that -- he's turned it into a political platform where he can make his case and that seems to be one of the themes that really helped him in the case so far is that he'sly being unjustly persecuted and there's a two-tier system of justice for the biden administration's opponents and for its friends whether it's true or not, this is compel to go republican primary voters and so every time trump appears on tv and these proceedings where he doesn't

have to come and then he steps outside and makes statements he's reinforcing that political message to all the voters even though he knows he's going to lose it legally. we as a society had left ex-presidents alone. this is the time any former president has been prosecuted. i don't think presidents should be immune but i think if we are going to as a society make that step it should be for something important. to me that makes the new york cases about hush money payments and claimsym of asset inflationn mortgage loan applications, that's not important. the most important january 6th brought by the special counsel. if president can be shown to have been involved in some way

with insurrection with the attack on the capitol, that does justify prosecuting a former president. prosecutors are elected from state that is don't like president trump so it's in the surprising they would do that. i think we are losing something as a society which is raising the cost for people too serve as president. it's hard enough to find good people that have the right qualities and judgment and support from the american president toop serve as preside. do you want to discourage people byhe saying and after you're president we will prosecute you if you filled out your mortgage application incorrectly or we think you are misspending your must be in certain ways. i think that's going to be a deterrent for good people to seek higher office. >> michael, broward county, florida. >> mr. yoo, i think historians

are going to bring you top 10 for bringing nationalism to the world and that would be surprising to you and the reason because of. your misunderstandig and this can change you can change in the future, if you come to understand and speak to theory, you grab an infant and you break all the social norms and you get away with it because of the other dominant females and males let you get away with it, well, you're clearly the number one dominant in that room. >> tell you what, michael, tell us quickly why do you think john yoo supports authoritarianism. >> well, connects to nationalistic perspective and that involvement with theec

federalist and everything can lack of understanding of -- and survival of the fittest and the belief that the meanest and baddest and -- doesn't matterli what you do, as long as you survive -- >> we will get a response because those are a lot of charges. is there anyf truth in your viw to what michael had to say? >> i think this might be surprising not to michael, i agree with him 50%. i'm a nationalist but i don't think i don't think i'm authoritarian. some other books that we talked about that the united states should rely less on on international institutions for security and we should understand that countries are in

competition and that they are nationalists and that the best way for the united states to pursue its security is to be -- to think -- to be nationalist, so i've had these -- >> your book teaming globalization. let me show it on the screen so people can see it. >> and point of attack also where i make the claim that the united states should understand when to use force or not in its national interest not in the way that international organizations or the un would limit the use of force. nationalism gets a bad rap these days. cosmopolitan approach, international law and institutions are better for humanity but when you look at the history of the last century

is because the united states -- i'm glad to have the right values that we have been able to by about, incredible period of peace since 1945 that has, we've had no great power wars and the spread of democracy. we had the spread of free trade e billions of people have been lifted out of poverty and it's because of nationalism, nationalism of the united states that has made that possible sometimes at great cost to our country we have ensured this system which for 80 years now have brought this incredible period of peace and prosperity. we've had small wars, of course, during that period but none of the wars with great powers that kill millions if not tens of millions of people. authoritarianism, i can see

where people would think i'm authoritarian. i've been -- people think i'm accessible to presidential power. there's a balance there. it changeses over time. congress has been the dominant actor and presidents were kind of almost like the agents of congress or they were not the most important place where

decisions were made. i think it goes in cycles and we are living in a period where presidents are more important than congress and part off that is political decision. i don't think it's a constitutional defect. some people tend to think so. ied think congress has a lot of constitutional power to get its way but choses for political reasons not to use those vast powers. you saw congress fighting with the president and the president and trump using his powers to fight back around something that the founders anticipated. i think in so many ways the founders wanted this to happen, they liked the the idea of congress and theo president tfighting all the time theyer

thought the government should only act when there was agreement and the fighting they thought it was beneficial because you would make sure the government wasn't doing anything thatgo would really hurt individual liberties or where the benefits weren't clearly in favor compared to the costs. >> do you think of american legal history as beginning in 1789 with the constitution in 1776, in 1607 with the first colony or around 900 with the common law in england or some other time? also -- that was the multiple choice part. here is the essay part. also how do you personally combine your thinking off mesh history as our heritage, your

word, with korean history as also your heritage? >> so i am asian, so i'm really good at multiple choice. [laughter] >> actually i really wasn't, much better at essay question than multiple choice. >> as my nieces say we are asians not besians. >> i have friends who would say you should have put in the roman empire there because roman law is actually, we actually think a lot like the romans when it comes to law and that's even the underpinning of ahe lot of our system even today and that the common law is kind of weird but i would say clearly before 1789, for the things i work on, i really think ofld it as 1776 and the period of 1776 and 1789 is

not that appreciated. gordon was a great historian. we had the enormous constitutional experimentation between 1776 and 1789 with our state constitutions, you saw really interesting ideas about the executive about the powers of congress. it's hard to understand 1879. i try to do that in my work and i like to think that, you know, lots of people now do that. i will give you one example. inpo my home state of philadelphia, go eagles by the way against the 49ers. it's not going to be, pretty because it's in philadelphia.

philadelphians won't want it to be pretty but pennsylvania created in its revolutionary constitution of 1776 a 12-person executive branch. so they were so afraid of executive power they put 12 people in charge who are all pick bid the assembly. congress picked all them and they couldn't serve for more than one year andnd couldn't be reelected. look at how extreme. single presidentot who can be reelected has the executive power as the phrase as used in the constitution and new york becomes the model as a reaction to extremes of pennsylvania. a lot of the states had no judiciary review. the courts were subordinated and they were actually most of these were like the england of today.

our constitution as gordon points out is a reaction to excessive democracy. constitution created a republic, that's -- so that's what i take from -- where did american legal history really first start in 1776. on the essay question, you know, i really appreciate the question. i appreciateec all the questions i've had today. it can't say i ever took a clas

of korean history and my knowledge from what i studied after school. i think it's a tragic history of a small country sitting between powerful, china, russia, japan, it's constantly being overrun and dictated to and absorbed. i think about israel and the united states, even without any resources, south korea is now the tenth richest country in the world.n i looked this up. in 1960 it was the second poorest country in the world. north korea was richer than south korea in 1960 and so in the course of 50 years it was able in land with no natural resources to advance so far,

koreans would make a car that were used in america, how did that happen. the right policies and constitutional principles can lead to enormous development if they are used in the right way and that's one of the way i tried to understand the constitution. it was a document that allowed for the amazing development of the country to become the richest most powerful -- and has used its power in a very beneficial way around the world. >> has the law of arm conflict kept up with technological changes and warfare? >> i'm a terrible book marketer because this book i wrote five

weeks early. chapter of ai and war. i should have released it this year. my coauthor and i wrote it 7 years, i mean, five years too early. well-known professor across the river. so some of the things we saw -- the reason we wrote the book was because we could see already that rapid changes brought about by the information revolution were going to be applied to war but we were not ready in terms of the way we thought about it. drones was just the first early sign of that. drones were just robots. what happens when you have drones and ai, you can use drones to destroy the russian fleet and armor offensive in ukraine and we are seeing use in israel with war against hamas.

hamas used unconventional uses of technology to breakthrough the wall and to get into israel and carry out the terrible attacks. that's the chief argument we've made if the main goal of the laws of war is to reduce civilian harm to reduce civilian casualties, we actually argue that we shouldn't be afraid of these new technologies because they will actually allow us to do that better. take gps, satellite processing and robotics allows for much more precise targeting where you don't have to level berlin to get adolf hitler. you can use drones and smart missiles and the right information to limit harm to civilians and i think wee saw that in the way the united states carried out war in the

last ten years. we hope israel is doing in the war againstto hamas. the initial premise of your question. the technologies advancing faster than the law and politics are able to keep us. so our call and the book was, don't worry about that, though. but the technology got used first and we shouldn't be afraid of that as people in the past were ofho new technologies in w. >> you mentioned that you're working on a new book and it is? >> . i'm thinking of calling it hamilton's victory. it's a book h about hamilton's constitutional thought because i think the hamilton musical, people love hamilton for it because he's a man of action for

the things he did. he was amazing. poor immigrant to the country, he becomes george washington's aide, right-man hand. brilliant lawyer. but what i think sometimes gets missed is his constitutional thought. i think we tend to understate hamilton's intellectual contribution. this book, there have been books about hamilton's thoughts about politics but i want to write about thinking of the constitution. i want to dig in and see what

else did hamilton said about the constitution. >> michael, you have been very patient and now you're on c-span book tv with author john yoo. >> good afternoon, professor yoo. and in 1968, president johnson nominated thornberry to replace retiring chief justice warren and it didn't happen, of course, because of, i guess, the election coming up and justice ford has had financial situation has had to resign. so i was just wondering, has there been any other justices that have resigned because of improprieties financially or anything like that, i o couldn't

think of anyone else especially recently. wondering with your lack at history, has anyone had to resign? >> thank you, michael. >> i don't think so, not in modern times. if i remember the facts of chief justice -- justice fort the is who was a close adviser to president johnson, in fact, later we discovered fortis was often giving johnson political advice, come over to the oval and talk on the phone and even when he was while fortis was on the supreme court. johnson would ask him because fortis had been his lawyer before johnson had been president butis i believe it was because fortis was basically practicing law and clients paying money and that is certainly conflict of interest and i don't think any of the things that we've seen since

rise to that level certainly none of the accusations against justices comes close to practicing law. in fact, this goes to, you know, the initial questions about what happened to the the constitutional process. i could see there reason to vote against nominees because they committed financial improprieties but you haven't seen that come up in the confirmation hearings. the justices, the lower-court justices are subjected to -- two nominees in the nixon years who were stopped.

i think that was also because of their the judicial views. one thing that surprise med that wasn't the reason, that seems to meth a legitimate reason for someone to vote one down, i think that nominee is going to pursue a vision of the constitution that is at odds with i think the proper reading is. in fact, i think that is a valid -- might be the most valid reason for a senator to refuse to confirm a justice but instead we've had it, you know, getter divertto someone going on a tri, someone receiving a small gift. i don't think that's the real issue at stake. it's political attack based on the ideology of the justices. fortis, i also think fortis if i

remember there was opposition to fortis by the democratic party, johnson's own party didn't want t' confirm fortis and was seen as too liberal for the democratic party and the issue about the -- justice practicing law and giving legal advice arose and made it easy for people for -- i think fortis never came to the vote on the floor. he just withdrew because he knew he didn't have the votes. john, before we run out of time, i want to talk about reading and ask guests, john y, seriesn lbj, master of the senate,

andrea inspector series, those are his favorite books. >> one thing that we get to is my upbringing and i went to school where i was required to learn latin for five years and ancient greek for four years. i don't speak korean but i speak greek and latin just fine. that introduced me to the world of classics and reading some of the authors gave me a tragic sense of history. you see in history people trying so hard failing nothing new. they go the war amongst themselves and that he destroy

themselves. the athens destroy themselves. the greek world essentially destroys itself and lays its open for the dominance of philip and alexander. people use to compare to the cold war where athens were we were athens and the soviets were sparta. athens won by the way and not sparta. what i enjoyed about the book was to me it was a tragedy, like a play how the most brilliant athens, the most brilliant of thinkers. the wealthiest country the city that looks more like america destroy itself. brought on a war when it didn't have to and went on foreign excursions that were a disaster. i just loved reading about all those great figures from that

time -- first book you read. required reading in grant strategy classes, first book because it's the two great powers going at war, how did one win and how did one lose? >> why u.s. grant memoirs? >> iks put the book more than once. grants book, of course, the time and history, what he writes about, the greatest threat to the country, the civil war he wrote about. it's interestingr, for that buti love the style of it so people i've readd have said that it's grant really first hemmingway. you read the book and the other books of that time, late 19th century, other books are so elaborated -- 20 words to say one word.

direct to the point. the memoirs are like that. i love the book because it's not just about the civil war, not just about strategy but also about the uniquely american style of writing. the other person that writes like that is julius cesar. i like hemmingway and faulkner as well. >> grant writes like a lawyer? [laughter] >> grant can't -- if you write that quickly you can't charge that much money. >> and who is inspector montebono?

>> cranky secilianutr. they are soey funny. translated italian to english andd there's 18. all the infighting, generations long vendettas, he talks about the food of sicily. i grew up in philadelphia. i love the books. if people like detective novels a lot of people read british detective novel. i recommend trying this unusually italian detective novel, are really quite good. >> very quickly, john, you are currently reading affirmation gordon wood, power and liberty, robin, american taxation, american slavery and carl

walling, republican empire alexander hamilton on war and free government. dave omaha, thanks for holding. go ahead with your question, we have a few minutes left. >> yeah. my question is -- west virginia versus eta, can you elaborate on this a little bit and secondly you have been sued and persecuted for a legal opinion and that just strikes me as crazy, can you talk a little bit about that? >> dave, can we ask you what you do for a living? >> i'm a lawyer. >> in omaha? >> yes, yes, in omaha. >> thank you, sir. >> is he a friend of yours? >> i think he's a friend of

steve's. steve hayward and the third host is a woman who uses pseudonym. we have a podcast that we use on politics. when you had steve the i hadn't joined it and afterwards i joined because they need a liberal. in the podcast i'm the liberal. steve is the moderate and i don't know where she comes from, she's conservative, i'm scared of her. i'm a simple lawyer, human goodness with the way the world

really works. it's a lot of fun. it caused me to go back and read a lot of political philosophy than i thought i would. we had recent debate about hobbs. the founder of modern political theory. he comes up with the state of nature. goes to earlier question authoritarian. he actually came up with the idea of the social compact and the state of nature, thought we ought to give the guy points for that. i think with al hobbs there's no law, philosopher that most influenced the founding generation. in terms of lawyers, i think i mentioned this earlier, i am really worried about the criminalization of legal advice. i'm more worried about the criminalization of politics using prosecution either if you think that's what biden is doing

or you're worried that trump is going to do that using criminal justice system to really fight out our political differences, there's some people who say that started all the way back to nixon years or the ford years. judge silverman thought it went back at least to them. i think that's dangerous for our society because if you can be the get honest candid open legal advice, then your ability to make the right decision is going to be narrowed and that's going to be bad for our society and particularly with the presidents because presidents whether they have been successful or not, they have the hardest job in the country.

reduce the candid and honesty of what -- candor and honesty of what they say then our presidents and leaders can't make the best decision for our country and that's going to hurt all of us. i think that's why we all did have a practice leaving ex-presidents alone, trying not to prosecute cabinet officials. let them ride off into the sunset and let the new people also have the benefit of making decisions without fear of being prosecuted and punished for them. >> john yoo has written 8 books, he is a uc-berkeley law professor of long standing, former bush administration official. do you stay in touch with former colleagues in the bush administration? >> oh, yeah. that's one of the great joys of

working in washington. >> most recent book the politically incorrect guide to the supreme court written with rob delajante. we very much appreciate the last two years and your time today. >> thank you, i understand this is the last show of the series so congratulations to you. >> i was not going to mention. >> you're forcing me to acknowledge that. this is the last of our regular in-depth programs after 23 or so years. we appreciate you being on with us. we've had 300 authors or so on this program f you name a nonfiction author from the last two centuries, we will have had that person on the program so we appreciate you being with us as well. >> friday night watch c-span's 2024 campaign trail, a weekly

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