"defender in chief." >> you open up your latest book "the politically incorrect guide to the supreme court" saying

alexander hamilton said the supreme court is always the least dangerous branch but hamilton got it wrong. why do you say that? prof. yoo: it is great to be with you. thank you for inviting me, and i look forward to this conversation. i am a big fan of alexander hamilton. the book i am working on now is about alexander hamilton's lots i am familiar with the quote ed thought about it a lot. i think his initial view was at the time of the founding, the president had the sword and congress would have the purse. he called it the will and the force of the society. what does the supreme part have? it only has judgment. it needs to agree with its reasons and voluntarily obey, but look at where we are today. all the great social questions of our times are being decided by the supreme. affirmative action and race, religion, abortion, gun rights

all with the supreme court and the courts. i think the supreme court in the justices are making the most important decisions outside of the president and congress, the things that people get worked up most about. there was hardly any political question in the u.s. that sooner or later does not turn into a judicial question. was this unique in the world at that time? prof. yoo: he had amazing insights. i wish he was on your show. i would love to hear what he had to say. he is a french nobleman who takes a trip to america for a few months, looks around during the jacksonian period, and makes a number of striking observations about the country that are still true today, and what he says is there is no aristocracy in the united states. there is no social class stability but it has been replaced by courts and lawyers.

they are the aristocrats who keep things steady and ensure progress and change is slow and deliberate. because of that, he says we always end up having these political fights and they end up somehow getting converted into legal questions and specific fights. it was not just true then but it is true now. a lot of these questions about abortion or gun rights, they are about legislatures in other countries. they are some about the courts here. >> let's quote john yoo this time. this is from "the politically incorrect guide to the supreme court." ours president and congress deferred to the justices to settle our most divisive national controversies rather than mount a challenge to the court. why do you think that is? prof. yoo: this is one of the complicated reasons. i think hamilton's vision turns out to be a mistake, and because

they thought each of the three branches of our federal government would compete and fight with each other to control policy, they did not actually think one would actually always win, and they thought constant fighting would be good between the three branches because it would ensure the government agreed on something and it would represent a broad consensus and the constant fighting would make sure liberty would be preserved. but what happened i think in reality is that members of congress -- i worked in the congress for a senator and presidents. i worked for presidents. they don't mind these controversial questions in the supreme court. you will not get elected by saying i will work on election, race. you get elected by making sure the district gets enough federal spending and all of those hard

questions get kicked to the supreme court. as long as the presidents and congress are happy to kick these difficult questions over to the judiciary. >> i want to quote from your book "crisis and command." this came out in 2010. you write along that same line that the delegation of power to the executive branch agency serve multiple purposes. it allowed congress to shift responsibility for decions that are politically controversial, called for difficult choices based on technological and scientif information, and involve high but unpredictable stakes. members of congress could focus their limited time and energy on spending programs, earmarks, and tax breaks for constituents and interest groups who supported their reelection. in your telling so far, nobody is taking responsibility. prof. yoo: that passage sounded much more poetic when i wrote it.

it does not drip off the tongue when you hear it out loud. i would say, yes, this desire to board of slop off or avoid responsibility is the future of today's politics that the founders did not anticipate when they wrote our constitution. they did not provide for this large thing we have now. you were having arguments with the supreme court this week about some elements of it and whether it is constitutional, but one feature i think is congress and the executive branch both kick over hard decisions. this time not to the courts but to the epa, the federal reserve, the ftc, all of those alphabet agencies. and so you can say, oh, i did not decide what pollution in the air from cars should be. it is those crazy bureaucrats at the epa. aren't they terrible? when in fact congress and the president passed legislation.

>> i was going to close our program with this quote from "the politically incorrect guide to the supreme court," but it seems fitting to read it now given our discussion. the constitution needs a careful restoration. llars of which it was igally constructed are limited and defining powers, federalism, individual rights, 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 are we going with that? prof. yoo: i think we live in a very complicated governmental system where we do not know who is responsible for some decisions, where a lot of decisions are made by the institutions not really settled by the founders. like these agencies, like the supreme court, and we have a government that is much larger

and more involved in our daily lives than your original vision. if you look at the original vision, i think it is fairly minimal government. in our society was driven by private sector decisions, by you and me making decisions about organizing our own clothes, about organizing our own activities, forming our own local institutions. so local, dispersed, self-government. what we have today is more european i would take a more centralized. not quite european but more centralized, much more out of washington, d.c. come a much more dominated by executive branch agencies, so the question i pose, is this what americans want? do they want to return to this more fighter handed government that our founders wanted or are they happy with the technological bureaucratic government we have today? >> how did we get to where we

are today in your view? prof. yoo: it has been a long time. i would not say evolution. i think it has gone in fits and starts. in the book we say that if you look at the history of the country, it is not really until the new deal and fdr we get these permanent, large, executive branch agencies driven by the great depression. before then, we would have big government during wartime. civil war, the government was huge. world war i, the government was big. it empowered the president to expand like an accordion when you needed it, but i think the founders thought it would shrink again when the emergency was over, and i think with the new deal did was it made that kind of emergency government permanent. and it was turbocharged by a gray society under lbj and a large democratic majority after the assassination of president kennedy. that is when we really got the government we have today, but

the person who envisioned all of this was a genius, not alexander hamilton but woodrow wilson. woodrow wilson might not have been the best president, but he was certainly one of the smartest presidents, a visionary , and i think it is wilson's republic, the kind of agencies administering government and major issues and congress delegating the power over to agencies. that is all wilson's vision and he got it from the europeans. >> john, you talked about we wrote this book with your co-author. who is he? prof. yoo: he is a retired professor from st. thomas law school. i worked with him when i met him at the justice department years ago. we collaborated on many things and this was the first book i wrote. i like to write books with people. i think it is fun. i think it makes your ideas better. >> how long have you been

teaching at uc berkeley? prof. yoo: this is embarrassing. it is my 30th year. i started in 1993 as a 26-year-old. [laughter] i do if i could get a job, i am never leaving. >> what do you teach? prof. yoo: a wide variety of classes, constitutional law, separation of powers, federalism. i also teach courses related to national security, foreign policy. i also sometimes teach things about political philosophy, political theory like natural law. i am allowed at berkeley thankfully to be teaching. itar strategy in law for the first time last year. the first four students who joined me on that voyage. >> ideologically, do you fit at uc berkeley or is it a

comfortable? prof. yoo: i would get fired by the chancellor if i claimed it was a good fit. the way i used to think about it was i am like west berlin. i am a shining example of capitalism, free markets, and liberal democracies surrounded by a sea of marxists. so berkeley and i -- i love the university. it is one that i think has been at the forefront of free speech and certainly a conservative like me i think benefits from tenure and free-speech in the university setting these days more than your leftist marxist professors. i have always been grateful i have had the chance to teach there they do my research and work and interact with some of the brightest students. california has a wealth of people of different cultures and they bring the most interesting students to class. >> do you ever feel alone there? do the students challenge you?

does the administration challenge you? prof. yoo: yeah. i feel my nature -- i don't know if i was like this before i went to berkeley, but certainly since being at berkeley, i have become contrarian. when i heard somebody say something, the first thing i say is, why is that? is that really true? not the first thing that i agree with you. i think being at berkeley --, so it was said that which does not kill you makes you stronger so i think berkeley has made me stronger by constantly challenging me and students, colleagues, speakers, visitors really challenging the ideas, where they come from, what is the evidence for what you are saying? i love that actually. i have only been in environments where i have found a lot of people that were conservative and i found it in a strange place. >> why do you call it "the politically incorrect guide to the supreme court?"

prof. yoo: it is part of a series of politically incorrect guides. it is part of a series of politically incorrect guides. i also thought it would be politically incorrect because it tries to show why the supreme court today based on its history has come to the way we interpret the constitution and originalism is not really kind of a disguise for just conservative politics. we explain examples. it has been done wrong like in the dred scott decision. there are places where it led to better results like plessy versus ferguson. we had terrible segregation for so long. we have cases like dobbs and abortion and the gun rights case

and religion. it is not that it is trying to pursue what conservatives want politically but trying to properly interpret the constitution. >> you about the dobbs decision in this book. in your view, was that the right decision by the supreme court? prof. yoo: i think so, and i don't think this is just a conservative view. many thought roe v. wade was a terrible decision in the way it was done. slowly, i am pro-choice as a policy matter. if i aligned my politics with my constitutional views, i would have been in the dissent to dobbs, but i think the founders thought most of these kinds of policy decisions would be up to the political process. of course, we have constitutional rights which override like free-speech with the political process decides, but when the constitution is silent, most of those decisions are for you and me to decide by electing our representatives and letting them hash out a compromise.

that is what we are seeing across the country today. it is not unusual for life-and-death decisions to be up to political processes. >> so, john yoo, the cynic in me says politicians were able to buy roe v. wade for 40 or so years and never have to really vote on it. prof. yoo: yes. you don't look like a cynic. it is sunday morning. you are no cynic. i don't think you need to be a cynic to have that view. i think that is just disruption of the way things have been. you are seeing particularly with the republican party, gosh, maybe this pre-dobbs will was not so bad because now they are getting killed in the constitutional amendment fights, legislative fights about abortion. the fact that i think the pro-choice side is doing extraordinarily well, there are

a lot of republican politicians who are unhappy they have to take a vote now on abortion. it was easy to be pro-life i think politically when you do not have to actually mobilize and do all the hard work of passing legislation. now that people have to come it is really difficult. also, i think the voters are not in favor with a complete ban on abortion. they want some kind of compromise so that makes it harder for politicians to figure out where that should be, but that is their job. that is why we elect them, to make these copper misys on behalf of all of us. -- compromises on behalf of all of us. >> all of your books deal with law, correct? conflict and other things along with presidential power, is that fair? prof. yoo: unfortunately, i teach in a law school. but also, i like trying to find the legal parts of things that

are important to people. i don't claim to be an economist or a military analyst, but i think there is a legal angle to a lot of areas of life that help people figure out what the good policy should be in that area. >> before we leave law class today, a couple more things. prof. yoo: you got a great intuition. [laughter] >> you write that marbury versus madison is the greatest of all supreme court decisions. prof. yoo:prof. yoo: so marbury versus madison was the 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 right to invalidate laws passed by congress that violate the constitution. if there is no marbury, there is no other great decisions like brown, like cobbs or roe the

putting on your perspective. if the court can't interpret the constitution is a certain act of the branch or the states violated, then the supreme court becomes a much smaller court. it becomes like the courts in actually may other parts of the world. you don't hear about the supreme court thinking about the policy unless you are a lawyer, but we don't ask that often. what does the supreme court think? in england, which is the model of parliamentary democracy, they have parliamentary supremacy with the legislature gets to decide everything. we could have had a supreme court like that -- we could not have had a supreme court like that if there was never a marbury versus madison. >> back to the civic in you. civics could predict the vote of the supreme court on any major

ideological issue. prof. yoo: i think that has been true in things when we talk about roe, abortion, race and affirmative action. i don't think it is true in a lot of cases that will become important but are not, that first tier. so for example, in the criminal justice cases, in the law that will apply to new technologies, i think you see an unusual combination. for example, the court has actually been very skeptical of the use of new technologies to conduct search and seizures by the police. the court struck down walking around neighborhoods with heat detection devices. this will seem so charming. to find illegal marijuana growing operations, as if that was illegal once upon a time, or distinct gps tracers or tracking devices on people's cars so you don't have to follow them with a detective or to track the location of your smart phone and

my saarc phone -- my smartphone. in those cases, you see conservative justices all voting to strike down the power of the government when it is applied to new technologies. justice scalia and thomas also voted to expand the use of juries in criminal trials and effectively invalidated the senses of thousands of people. those are actually i think in a way much more important to the daily lives of average americans. look at the headlines of the new york times and the washington post, and wall street journal, and you don't see the other more interesting combinations so much. >> in the 1980's, 1986i believe, antonin scalia a, 90 -- 1986 i believe, antonin scalia, 90 votes. what has happened to the

process? prof. yoo: it seems like so long ago, 30 years ago. my argument has been that they saw this power gravitate to the supreme court for the most important questions to society as president and congress is did not want to decide it as president -- as president and congresses did not want to decide it. as judges became more powerful, it is no surprise the political system would try to start influencing who was picked. if you are going to say don't you care deeply about abortion? until dobbs, the only way you could affect abortion policy in the country was by those appointed to the supreme court. there were 50 years between roe v. wade and dobbs. all of the politics would have been devoted to pass legislation

about abortion focused on who will be on the supreme court, so it was only inevitable i think that as the supreme court became more powerful, the appointments process became more politically important, and then you saw all the instruments campaigning. maybe this is a possibility that if the court starts to withdraw from these important decisions and send it back to legislatures, maybe in 20 years, 15 years, we will start seeing more consensus votes for justices, meaning less politicking about their appointments, which was the case for most of our history. >> back to the guide to the supreme court. constitutional and political order are almost without right. prof. yoo: there are some scholars who would say

mccullough is more important than marbury. the decision where the supreme court upheld the constitutionality of the national bank. this is one of the great fights of the first washington administer should between hamilton and jefferson. it only gets resolved almost 30 years later, but in the early fight, people are surprised to learn the constitution does not authorize the creation of a national bank. it does not talk about the federal reserve or its predecessor, so jefferson said, thomas jefferson was a strict constructionist who said the constitution does not say you are allowed to create banks and universities so you cannot create it. hamilton says anything that is necessary and proper for the good working of the government for it to achieve its ends in constitution is allowable. washington signs the bill. it becomes law.

eventually, chief justice marshall, i think he almost plagiarized hamilton's arguments. they are almost exactly the same as what hamilton made to george washington in 1789. in mccullough, he says the necessary clause is the government gives congress the power to create institutions like the bank that allow us to reach the goals of the constitution and regulate commerce, collect taxes, borrow, spend, but the reason it is important is it is a decision that underlies creation of all of the federal agencies we talked about. never mentioned in the constitution either, but it is that which allows for the of the large new deal estate we have now. >> and thanks for joining us on tv for "in depth," our monthly program. two hours, one author, with their body of work.

this month, it is uc berkeley john yoo professor here is. -- this month, it is uc berkeley professor john yoo. you is a look at his books. war by other means in 2006. "crisis and command," history of executive power from george washington to george w. bush in 2010. "taming globalization, international law, the u.s. constitution, and the new world order" came out two years later. "point of attack" came out in 2014. "striking power" came out in 2017. and then in 2020, "dender in chief" them out.

in the most recent book, "the politically incorrect guide to the supreme court," just came out this year. we have been talking for a half-hour now. it is your turn. if you have questions, comments, concerns, please call in. (202) 748-8200 if you live in the eastern and central time zones. if you cannot get through on the phone lines, try our text number. please include your first name and your city if you send a text. at some point, we will scroll through the media sites you can get an idea of how you participate in that way as well. so, john yoo, you worked with the george w. bush judicial department -- the justice department, my god. thank you.

is it fair to say that he became known as the torture lawyer? prof. yoo: i would not use those words. >> right. trying to be vernacular here. prof. yoo: of course, that is one of i think the most controversial decisions we had to make after 9/11, which became think most associated with me for whatever reason. and i will say this, we were confronted after 9/11 with a series of decisions that were prompted by the unconventional nature of the enemy. in fact, some of the things we are seeing today in the war between israel and hamas are repeated, a similar nature to what we saw in 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,

watches attacks to kill civilians, does not distinguish itself from civilians? the whole point of the laws of war -- some of the books you mentioned are about the laws. some of the great achievements have been to restrict fighting to the military, to armies, trying to protect civilian life, civilian resources. and so we had to make a series of decisions of which interrogation was just one. onewest, were we at war at all? can you be at war with a group and not a government? before 9/11, presidents of both parties said they were criminals

how do you interrogate them when they do not follow the geneva conventions? are you allowed to target them? are you allowed to target and kill them when they are outside of the battlefield? which was president obama's campaign. also, how do you surveilled them? are you allowed to search through innocent civilian communications to try to find their hidden emails and phone calls? all of those where i think unfortunately new questions for us and we had to decide all of those in about a year. i thought legally at the time, the u.s. was bound by the principle of humanity and we treat everybody that is detained humanely, but that was not limited by miranda, not limited by the civilian criminal justice rules we use for detention and interrogation of criminal suspects of the united states, but also that terrorists are not

entitled to the high protections we provide to our enemy prisoners who fight on behalf of other countries according to the laws of war and obey the geneva conventions. >> i want to quote your book talking about yourself. this was not a role i ever wanted to play as an immigrant to this country. i welcomed the opportunity to serve the nation that had so generously allowed me to join it and afterwards return to academia to continue working on constitutional and international questions. the last thing i wanted to do was to devote my career to the study of the issues surrounding terrorism. prof. yoo: yeah. i wrote that a long time ago, but it still remains true. i am interested in presidents and war. it is a theme of all my books because my parents were refugees

and i am too from the korean war. if the united states, if president truman had not come to the rescue of south korea, i would have grown up in some kind of north korean labor camp, and i think the united states has been extraordinarily generous to lots of people around the world, saving them from these terrible regimes, so when i started my academic career, i wanted to understand that, understand why presidents, why the united states did that. of course, i wanted to help the country as best i could. this was before 9/11. people were afraid george w bush's prime minister she was going to be a domestic policy administration. but at the same time, 9/11 happened, the government was called upon to make these difficult decisions, and i was in the position of having to

make some of them, so ever since i thought about my work on terrorism as what i did not want to do originally. i will say one other thing that came to mind when i was writing that book and all of a sudden thinking about looking back on the decisions we had to make. a place i often look for inspiration or guidance was abraham lincoln in the civil war because the civil war was the other time i felt when the kind of war and conflict the united states had to fight had been totally unforeseen and raised so many questions. like are all the members of the confederacy americans? are they citizens? does that mean we have to give them different protections? what kind of rules of war army going to use in the civil war? lincoln was a lawyer and actually had a really good way of putting things in terms of public understanding. i thought he was quite a good lawyer and thought deeply about

many of the same issues that occurred after 9/11. and so i guess if you call it the patriot in me was trying to find other times in american history, other american leaders to look at as a source of guidance. i found it in april he could. >> i want to quote from your book "crisis and command" about abraham lincoln. the unique nature of the civil war forced the lincoln administration to reduce civil liberties in favor of greater internal security. was that the right decision? prof. yoo: i think it was the right decision in that the things he did brought the united states through the civil war and restored the union. sometimes, sometimes he might have gone too far, but you have to put yourself, and i always tell this to people about decisions the bush administration had to make after

9/11. put yourself in position of those decision-makers at that time. lincoln did things. people wrote books for years and decades after accusing lincoln of being a dictator for some of the decisions he made like the suspension of habeas corpus, restricting of speech rights, particularly of political opponents at times. you can call the emancipation proclamation, one of the great takings of private property. although i think he had constitutional justification. i think it is very hard to say lincoln could have successfully won the war and restored the union without the great expansion of power, without some of the narrowing of liberties. but also, lincoln was never drawn to extremes. even though he may have sent we are having an emergency

situation and have to expand power of the presidency, he did not give into people. there were some in congress without the constitution should be suspended. some thought we cannot have elections during this time because the government is under attack. so lincoln because of his commitment to enforcing the constitution paid incredible prices. i am not saying 9/11 was a serious threat to the country as a civil war, but i admired the way lincoln brought us through the civil war by commitment to the constitution and being fairly reasonable about things. and i am hoping we did the same after 9/11. >> what is habeas corpus? prof. yoo: the reference to the

ancient english right which says that if the government detains you, you have the right to go to the court and demand that the government show why you are being detained. so it is considered and it is one of the great basic freedoms of our system, the english system. >> our guest is john yoo, who was born in south korea and grew up in philadelphia, undergrad from harvard law school, yale, clerked for clarence thomas, general counsel on the senate judiciary committee for years, professor at uc berkeley since 1993, and spent some time in the office of legal counsel at the justice department under attorney general john ashcroft. now to your phone calls. mike in new york, please go ahead. you are on. caller: good afternoon. i could not agree more with professor yoo.

bill clinton treated the terrorist attack on the 293 like a federal crime, like a robbery. the reason i am calling is i like professor yoo's analysis on if he thinks how the democratic party will pack the court again. and also, does he anticipate the first and second amendment's three different ways. thank you. host: thank you, mike. caller: i hope one thing you get from our book is that this idea of court packing is not new. this is something that has come up before in our history when there has been a lot of political opposition to judicial decisions. so that is actually one thing that worries me. the last example of court packing came up in 1936, 1937 when fdr tried to add six

justices to the supreme court because he felt that the supreme court was, and i think it was, trying to put constitutional limits on the new deal. the court struck down several of the major first new deal acts that expanded the power of the government to set everything from agricultural prices to industrial production quotas and essentially gave control of wages and prices throughout the country. supreme court's struck -- this up in court struck it down and struck down a number of agencies we now have come earlier versions of those. after the 1936 reelection campaign, he tried to pack the court. although he was so cagey and clever, fdr. he said it is not to overturn supreme court decisions but because the justices are so old. there are so many old justices. they need help, so they need assistant justices to help the senior justices. classic fdr.

even though fdr's democratic party was two thirds in the house and the senate, they could have amended the constitution actually to set its size or overturn the decisions. that democratic congress rejected fdr's proposal because they thought it was an assault on the independence of the judiciary. i have to say interestingly, one of the people who first proposed court packing was not a democrat, actually fdr's relative teddy roosevelt, one of the court, because he was frustrated by the supreme court. he and woodrow wilson, the progressives of their time before world war i, thought the supreme court was, and it was, putting the brakes on progressive legislation, so they first started floating the idea of having supreme court, but it goes back to thomas jefferson,

who really would have loved to change the size of the supreme court because he and john marshall were constantly at odds like people related in virginia can be. they were actually distant relations. they were from the same class. jefferson became really frustrated with the federalists who he thought were treated to the bastion of supreme court even though they lost election after election. the one thing i thought was shocking to me was during the 2016 democratic primary. people may remember the kennedys were asked to show hands if they supported court packing. the only candidate who did not raise his hand was joe biden. all the other people running for president on the democratic ticket in 2016 were in favor of court packing, so i am glad it has not succeeded the last four

years, but i worry about the future, whether it is going to return, and of court packing succeeds, i think the supreme court will become the court of 1937. fdr did not succeed in packing the court. the justices as we described had become so worried that they changed their minds and upheld the rest of the new deal. host: there is nine the right number? prof. yoo: the shocking thing was for a while it was an even number. it has to be odd. it has to be an odd number. i don't think we want to have tit-for-tat reciprocal court expansion bands every time a predicate to power because then we will have the supreme court of china, which has 300 supreme court justices. i think 9, 12 is probably a good number. the important thing, this i learned from a judge i clerked

for, a d.c. circuit judge who passed away last year, an important provocative thinker i would like to say. he always emphasized to me a court is not really a court of people can sit together and liberate. being judged on the court is not about voting. that is the legislature. people show up and vote. one of the most import things for the judge was a court be small enough in size that you can have a discussion and people will change their minds and then the court makes a decision as an institution. so i could see 20 would be way too many, but nine, 11, 13 would be fine. host: you had the senate judiciary committee recently. there was a hearing about the supreme court based on some but you clerked for, clarence thomas, and some of his friends. what do you think of that hearing and their desire to subpoena some of clarence thomas's friends? prof. yoo: unfortunately, i

think the motivation for this is similar to the motivation for court packing. it is an attack on the justices and their independence because of disagreement with their decisions. i think this is a very dangerous step we are potentially going down. it also, the idea as someone who clerked for justice thomas and spent time with him for a year, i find the idea that he would go on trips with friends and those friends would get him to change his mind about the constitution, i find it ludicrous. conservatives don't know what to think until justice thomas makes a decision. it is not the other way around. but also, i clerked for justice thomas when he was much younger 30 years ago. he is a person he was really fixed in his ideas. he has very clear principles. he is the most committed originalist on the court. he truly believes in a colorblind constitution.

there are a few very basic animating principles which he draws i believe from the declaration of independence. i think the only justice that cited the decorative independence in a judicial opinion, but he is driven by these basic things and will not change his mind based on this. i am really worried it is an effort to undermine the judicial. that is what the democrats are proposed, this plan to create a body established by lower court judges who will take in claims of conflict of interest by the same supreme court, and it is a little unclear but i assume there will be some process to enforce justices to step off cases if there seems to be a conflict. that i think creates enormous conflict of interest. i would say the justices have had in their history very few cases of ethical improprieties. i don't think any of what is

being talked about right now as trips, gifts really has anything to do with the way justices have decided these cases like dobbs, like gun rights, like affirmative action. i think what it is is pressure on the court, just like fdr in 1937 to force the court direction. host: lois, you are on 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 wiccans and democrats don't want reform but that gets stacked because 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? prof. yoo: i have complicated

ideas about immigration. personally, as someone who has benefited from generous immigration policies of this country, i don't want the united states to change. i think it has been good for the country. i think the way our country replenishes itself with immigrants is one of its sources of strength. let and i believe -- we naturalize one million citizens a year. i think we can easily double or triple that to make 2 million or 3 million. i would be in favor of that action. the problem is i think what you are referring to and what you see in the headlines these days is illegal immigration. what is the government going to do about controlling large flows of people across the southern border who are entering the country illegally? i think the latest figures i saw suggest something like we are having up to 2 million entries a year. 2.5 million entries a year just

across the southern border. what are we going to do about that? it is not necessarily captured in the census in terms of members of the house that have allocated policies. it has importance for the distribution of federal benefits, federal money. take aliens into account. so i would say there is a constitutional issue here actually the constitution surprisingly does not mention border control. the only power the federal government receives in the constitutional text is the power of naturalization to decide how you become a citizen. so actually, for a long time in our history, the border was actually controlled by the federal government. historians are digging into heaven worked. we wanted people to work into the united states. we had a lot of empty land.

we still have a lot of empty land. one fight that is going on now that has a constitutional issue behind it is, can states like texas -- it has been trying to toughen up its own border control because governor abbott argues that the biden administration has -- that is a constitutional issue. can states play a role in border control and immigration policy? the supreme court has said no. since the unfortunate chinese exclusion act cases, immigration is a purely federal enterprise and states are ousted. we all knew once aliens entered the country, entered a state, aliens have enormous impact. immigrants have enormous impacts on states. what can states do to try to help ensure an orderly process at the border?

it is a constitutional issue that could impact this political fight we have on our hands. host: kathleen is in dayton, ohio. kathleen, you are on c-span. caller: thank you. john yoo said earlier when the interview started that you and other u.s. officials avoid taking responsibility and i want to ask him one quick question, a longer question. how did he go about the gore decision and should that decision have ended up in the supreme court? my next question is this, are we at the doj the office a response ability report vista getting into the office of legal counsel maranda concerning issues related to the cia and its enhanced interrogation techniques on suspected terrorists? that opr report said that it

contained seriously flawed arguments and did not constitute federal objective or legal advice, accusing both attorneys of professional misconduct in announcing its intent to the finding to disciplinary authorities. the report cites a memo frightens consistency with the standards of -- with the standards of applicable items. the particular provision towards water torture. host: kathleen, can you bring this -- caller: yes. mr. yoo, do you feel like the attorneys in the office of legal counsel change the torture laws

that were already in standing? do you think the attorneys and the authorship should be held accountable? host: thank you. we believe that there. john yoo how will you like to respond to that? prof. yoo: it is a perfectly fair question. the report you read from his part of the process of holding people responsible for the decisions of the government. i thought about or what we did, people would be critical and unhappy. i would note that when that report went out to the office of the attorney general, a democrat attorney general in the obama administration i might add, it was overturned. the attorney general's office decided not to pursue any of those claims and did not share the decision, the recommendation that people be professionally punished in some way. one thing that is happening that you saw there, and i am worried

about this, we are seeing this now with the trump lawyers, and i think we will see more of it unfortunately, you have lawyers who have to make decisions under difficult circumstances in areas where there is not a lot of law. anyone who claims there was a clear law on 9/11 about what to do here is not being honest. it was a difficult choice in part and that is why i compared it to the civil war because to me, the civil war was a time when the legal 30's did not answer difficult questions they had come and that is true of 9/11. afterwards towards the end of the bush administration and the obama years, we came to settlement laws being passed and now we have clear rules but we did not have those on september 11, 2001. i think there is a process and what i find worrisome as we are starting to attack lawyers and trying to claim they are acting outside of the rules they are

given an acting outside of the law when i do not think that is the case. they are being attacked for political reasons. in the future when you have lawyers and ask them questions, they will start asking, do i actually provide the client with the full range of legal advice, or do i change because i am afraid somebody in the future will come after me with the bar association? even in 9/11 when i was working on these issues, i knew this was something that would happen. it has worried me since it has entered into a political battleground. host: joseph in fayetteville, north carolina, text message. is it time to get rid of the patriot act? prof. yoo: that is an interesting question. i spend a chapter on it in one of my books. i worked on some part of the patriot act. i think the part that joseph is referring to is not 90% of the

bill, which was modernizing the law about the foreign intelligence surveillance act. back then, no one had heard of it. now people talk about it all the time. an amazing level of knowledge that people have with fisa nowadays. but one thing that fisa did, and i can see how it has become controversial, is it tried to reduce the wall between gathering information for foreign intelligence purposes where the government generally has a relative freehand and sharing it with people involved with domestic law enforcement. after the abuses of the nixon years, the government and the courts together kind of decided to erect a wall between what the cia and the nsa knew and what the fbi knew. unfortunately, that allowed several of the 9/11 hijackers to slip into the country.

people who are in foreign intelligence agencies new they were terrorists but cannot tell the fbi about it. after 9/11, we tried to do that but the quest to last several years, this has been it seems clearly one of the problems that they are fighting about what is called the russian hoax in the fbi's investigation into donald trump because the warrants pfizer used that turned out on that information in the fbi continued to get them, the justice department inspector general has notified this as an issue. again, this is something that has the same features as we were just talking about with interrogation or detention or the use of drones. there is no perfect policy. there are policies that can benefit the country and will have costs. i think still the advantage of being able to collect information widely about foreign

threats to a particularly terrorist threats, particularly after october 7 and what we saw hamas do and the withdrawal from afghanistan and the return of the taliban and the rise of these terrorist groups again, i really worry we are returning to a pre-9/11 mindset and we will erect barriers again between national security and domestic law enforcement to high -- too high. even though it might have the cost of infringement on civil liberties, as we are asking about with lincoln. there could be costs and benefits to every policy and trying to find a way to make whole to those fallen under surveillance in the u.s. but we should not shutdown our efforts to find terrorists and foreign threats abroad. host: before we get too far from our friend in kathleen, she

talked about the bush and gore decision. what is your take on that? prof. yoo: that was this difficult one-of-a-kind case in the way it came out was not the way i would have thought, and it of course has echoes in the 2020 election , because the basic idea is the state electors chooses the electors. the constitution said they choose the electors that he sends the votes off to washington. but every state has delegated that to popular vote. the problem for bush versus gore wasn't that florida's legislature or, as we now know as to the supreme court said, and reasonable limits on that power, or the participation of the power by governor or that system is what happens when that woody system becomes so close or so fraught with uncertainty, and we aren't sure how it comes out and we have a very strict process of

going to get the electors chosen and when you get them in. that was the fundamental problem with florida, the supreme court had to intercede because the florida court were themselves intervening to much in the way that the count was being done in florida. i could see that happening again. i think donald trump and his supporters are utterly incorrect that that happened between 20. i actually don't see any evidence any evidence of something like fraud or uncertainty in the trick turning election that would have caused this stage to send its electoral votes in in contradiction or conflict or in the absence of the popular vote. horstman in 2020, -- host: i have a quote from a book document into a 20, "trump has feed the constitutional

text, structure and design for an independent vigorous execute. he has fought off the efforts of progressives who have wanted to revolutionize our cotitution order by vesting evermore power in the permanent bureauccy of virtually limitless authority." caller: i am not sure that is what you would agree with into 24 should you when -- should he win based on what he has been saying. to claim that there has been sufficient fraud to change the outcome of the election. but i wrote the book because i thought people were making very serious, people were making arguments to narrow the powers of the presidency just because donald trump happened to be the person they don't like in that office. that people were making arguments they never would have made under the obama

administration. to me, what is most important is to make sure that the powers of the office -- properly understood, properly rooted in constitutional laws -- is maintained for future presidents in cases of really emergency when will need to exercise them. in fact i would say president biden is actually relying on a lot of the presidential powers the trump and obama was using at bush and reagan and so on, that is what disturbed me about what was going on. they think trump was so hated that it was making -- it was causing people to make the mistake of permanently limiting presidential power just to stop chump. so i went through a lot of the things that were controversial about what he did and tried to show the arguments he was making, the cost additional powers he was using for much different than obama, bush, clinton, reagan, the modern presidents that came before him.

host: in your book "crisis in command and could you talk about the notion of an unchecked executive limiting dictatorial powers to plunge the nation into disaster is a myth born of vietnam and watergate. congresses have always possessed ample ability to still meet and checks an executive run amok that comes from my time working in the senate and, of course, reading histories. but congress can always get its way because it has the power of the purse. if congress wants something to stop, they can stop it like that. if they really want to. all they have to do is stick in an appropriations rider. in congress i wrote a lot of those. it's not hard. if they are not doing it it's because politically they don't want to, congress does not want to check the president. so there will be cases where presidents go too far, but if they do it, congress is not

stopping them, because congress does not want to stop them. so i have found this vision of presidents by dictators, presidents icd-11 of this power, and i don't find it to be true as a matter of our history. presidents have had very broad and more power to history three regular cases of lincoln or jefferson or woodrow wilson, they have all had these broad powers. our constitution. gives presidents that kind of power here is the rub, because the circumstances demands it. one thing i worry about the book, we don't write about field presidents, there is a lot of books about presidents we admire, but i try to discuss with every great president field, often they field right around the same time is a great president. abraham lincoln is preceded by, i was gonna cpac you cannot, but

it was actually james buchanan -- [laughs] -- who is often thought to 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 is not just using constitutional power, but making sure they match the circumstances. that is more statesmanship than constitutional law. host: before we leave this area of discussion, i have a quote from a washington post of red that you wrote recently, "donald trump and his allies have began mapping out specific plans for using the federal government to punish critics and opponents should he win a second term,

naming individuals he wants to investigate or prosecute and his associates ejecting plant to potentially invoke the insurrection act on his first day in office to allow him to deploy the military against civil demonstrations." is this an overstep of this authority in your view yes, people may not realize that there is something called the presidential act allows the president to call out to troops, but not because he is surrounded by enemies or surrendered by resistance to his administration . and not simply to respond to protests. it has to be civil unrest of a kind that prevents law and order. that prevents law enforcement, prevents execution of laws from occurring. there was some of that in the summer of 2020, i think maybe portland might have reached the state, but most of the protests we saw during that period, i

wouldn't justify calling forth of the insurrection act. i also worry when i read about these reports of president ciampa and his advisors seeking to use the justice department to investigate and prosecute people who are seen as enemies. i think actually the justice department -- first, i don't think that is a proper use of prosecutorial discretion, even though the president is in charge under the constitution of executing the laws, i don't think prosecution properties in our system is for going after your enemies are investigating your opponents. i think that people in the justice department would refuse to carry that out, if that were actually what president trump -- now the thing with president trump, and i have encountered this when writing this book, is often he would say crazy, outlandish things. . it would be a big difference between what he was saying and what he actually did. so i hope this is president

trump blowing off steam,, complaining like a lot of presidents have when you listen to these oval office tapes of johnson or nixon or kennedy, they say all kinds of things that are incredible to modern ears. complaining about this person or that person. but they didn't do it. maybe nixon did a little bit. but johnson and kennedy didn't i hope this is politically blowing off steam, because it would be dangerous for our country. you have a right resistance in the government if the power of prosecution returned for this kind of political purpose. host: if you're just joining us, this is book tv's "in-depth" program with professor john yoo. john, from richmond, virginia, you are on the air. please go ahead. caller: my question is in a similar vein, it has to do with

the massive government surveillance, and, in particular, more than the surveillance itself, but the concealment thereof which also entails typically nowadays, the use of stingrays concealed, the use of parallel construction so that they can use evidence in court that was obtained illegally. my question is, what does the constitution say about the right of the government to conceal his questionable activities, and how does this affect our right to self-government? host: thank you, john. prof. yoo: that is a tough question. it goes to the route of having intelligence agencies, something people worried about alternate back to the funding. this all the way back to the founding. do you want a government that has secret agencies, that

conducts covert operations and engages in foreign intelligence surveillance? because to be successful at level, you have to keep it secret. if you keep it secret, it makes it hard for us as the electorate to hold people accountable for the use of this power. i don't think there is any perfect solution. one thing you saw with the abuses of fisa and forward intelligence by the fbi and its investigations of president trump is that, you had the justice department inspector general look at it, he had congressional investigations. ultimately they special counsel appointed under attorney general barr, mr. trump and the durham report. so i think those are the tools you ultimately have to use. one thing i think you are suggesting, john, that is certainly true -- it's an

unfortunate fact that these are all after-the-fact, after abuses occurred or mistakes were made. it's very hard i think to do it beforehand because of the need to keep it secret. . i agree with you, this system is intentioned with the archewell constitution. the original constitution does not prohibit it, but it doesn't allow for it. it's hard to do it under our ideals of open, transparent government, congress debating bill's, president signing builds in, the courts adjudicating decisions in public. our system has made an accommodation because of the difficulties of these foreign threats in the nature of having to fight some of them covertly. i think it is as i mentioned in an earlier answer, i agree with you there are harms to our civil liberties by having this kind of

system. that i think the benefits to our security are much greater that may be the way we do it is on the backend. i was writing about the patriot act, and i said, maybe one answer is that any of the information gathered in this way can never be used against an american in a prosecution in court, that courts should throw it all out. if it is gathered to protect us from foreign threats, from foreign attacks, the let it be used that way. just like we used signals intelligence on the battlefield. to immediately act, to immediately protect our security. but maybe the way to preserve liberties is never to allow fisa information, information gathered this way, to be using a prosecution in federal court. that would limit the ability of the fbi and the justice department to bring terrorism- related for espionage-related

cases. but may be is also the price we pay to make sure this information that is gathered in a secretly, that is not very transparent, doesn't go too far to undermine our system. host: you write in "war by other means" that it should be understood that in the august 2002 memo, that torch a memo, that the justice department did not advocate or recommend torture." prof. yoo: thisprof. yoo: is an issue for lawyers. the hard job is the people we elect to office who have to decide which policy choice to make. the law can give you a range of outcomes. i often compare it to the law can set out the boundaries of the football field. . it doesn't tell you what plays to call, it can tell you what is inbounds and what is out of bounds. maybe the judges index refineries. -- the judges elected the referees. but the people choose the policies.

all of these questions are surveillance, interrogation, the law says that this is a permissible range of things you can do. but what you can really do is a difficult question. host: one more quote from "war by other means," american law prohibits torture, but not all forms of interrogation that go beyond questioning our torture. physical or mental coercion does not constitute torture, includes threats of poor treatment or promises of better treatment or non-harmful physical contact. solitary confinement is not torture. marine instructors don't commit torture in boot camp." prof. yoo: i have to say, when the government was trying to figure out what things you had to do -- what things it was allowed to do, they borrowed from the procedures they used to train people. so one thing we wanted to make sure was that they were safe. 25,000 americans had been trained on these procedures.

so we said, we can't tell you what to do, but if you want, you should look at things that the military already does, like marine boot camp, for example, new election think our military is not commuting torture against our own soldiers and operatives when it them. that, alternate -- and operatives when it trade them. to that that is hard, to make the right choice. , phyllis in new york city, you are on. caller: good afternoon. thank you for the opportunity to say a few things. first of all, mr. yoo, you talked about conflicts of interest with justice thomas. you also mentioned about how politics works.

a publishing house that was publishing her book. apparently that is ok on that ride. with you are brilliant views, how do you ever survive in u.s. city? i had to leave higher education because i got tired of the inability of students understand all the arguments, even if they want to understand that they want to be whatever, progressive, local or liberal. host: thanks. prof. yoo: i think your example of justice sotomayor, there are allegations that she was acting unethically because staff or trying to get books sold and bought a different speaking engagements, and she was on the court and did not recuse herself when there were cases seeking

cert involving the publishing house. that close to my point that i think this attack on justices is really political. because if you look at that meeting that we were talking about in the senate judiciary committee with the subpoenas that were issued, they were issued to harlan crow, who is a friend of justice thomas. they are very good friends, very close friends. they want information about trips. gifts that helen crow has made to justice thomas. and then tell leonard leo, a friend of mine who was one of the heads of the federalist society, now he has left that, and whether i get you provided any trips or gifts to any of the justices either. they didn't issue any subpoenas to any of the people surrounding the liberal justices. i would have thought you would want to do that, just to preserve the possibility that

this is bipartisan. but when it is really just targeted at people who are friends with the conservative justices, i think that makes it obvious that this is really an effort to attack certain justices because of disagreements with their decisions. i don't think either that case or the cases with justice thomas are showing remotely that these trips are gifts had produced any change in new that they decided cases or produced any real conflict of interest. that is the most important thing. do we actually see them changing their votes? do we actually see them changing their opinions because of these things? i didn't see other parts of liberal or conservative justices, which, in my mind, shows that this is really just a lot of dust being kicked up to try to impugn individual members of the court because, like in

1937, these politicians just don't like they were the justices are interpreting the constitution and they are trying -- again, it goes back to the super court has become more important, you are seeing the use of regular old campaign tactics being used against judges and justices because the stakes of what they do are so high so many people. host: as the former general counsel at the senate judiciary committee who you surprised, shocked et cetera about that committee hearing? dick durbin and john cornyn getting into it, the republicans walking out? prof. yoo:? prof. yoo: when i was general counsel, orrin hatch was chairman and joe biden was a minority member. i saw senator biden quite a bit at those hearings. and they disagreed a lot on constitutional issues, legislation, on who they would like to see on the supreme court .

but they never went to the level that i think you saw at these committee hearings go where half the committee members walked out and left. i had never seen anything like that happen. i had never seen subpoenas voted out when there is not a quorum, or when the committee time is over. there is serious doubt over whether the subpoenas are legitimate because they were in violation of senate rules. usually if you are in the senate, although they had shop disagreements, -- sharp disagreements, they would reach a compromise in the end. so i was really surprised. i was surprised relieved by how aggressive the issuing of subpoenas has been. i was also surprised to see the republican senators leave. that had never happened before. i guess neither side really wants to reach a compromise or settlement. host: john yoo, are you surprised at donald trump's attacks on the charge and the

clerk in the new york lawsuit case? prof. yoo: yes. well, i can't say i'm surprised. [laughs] i can say i am disappointed, but i understand what he is doing. what people don't realize is that tom has already lost the case. this judge already issued a decision saying that trump and his organization committed fraud on the market for new york by inflating asset prices. all of these proceedings that we are seeing now live on tv and reading about everyday are about what the penalty is going to be. it's good to be, what fines, what business conditions are going to be imposed? will the organization be kicked out of new york entirely? so i think what trump has done is, he realizes he has lost, so he has just turned it all to his political advantage. he is treating it like a political event, not a legal event. so a lot of things he is doing

will harm him in the legal proceedings. they are making this judge angrier at him. [laughs] he is questioning the judge's legitimacy, i can think of anything you can do more to make sure you really lose badly. he will lose the biggest judgment ever in this law under history. at the same time, he has done a jiu-jitsu, turned it into a political platform where he can make his case. and it seems to be one of the things that really helped him in the race so far, is that he is being intensely persecuted and there is a two-tiered system of justice for the biden administration's opponents and for its friends. whether that is true or not, it has been compelling to republican primary voters. every time trump appears on tv in these proceedings where he doesn't even have to come, and he steps outside and make the statements, he is reinforcing that message, even though he knows he will lose legally. it's hard to keep track of all

these trials, there are some state once, georgia and new york, and then there are some federal ones, in d.c. with special counsel jack smith. we as a society had left ex-presidents alone. it's the first time any former president has ever been prosecuted before. i don't think presidents should be immune. i think if we are going to, as a society, make that step, it should be important. so it makes these new york kisses about hush-money payments and claims of acid inflation and mortgage loan applications, that's not important. the one most important is the one about january 6 and washington, d.c. being brought by the special counsel. if president trump can be shown to be involved some wave with the insurrection and the attack on the capital,, i think that does justify prosecuting a former president. but all these other cases strike me as politically motivated harassment. of course you would say that

because the prosecutors are elected from states that don't like president trump. so it is not surprising. but i think we're losing something that the society, which is that we are raising the costs on people to serve as president. it's hard enough to find good people that have the right qualities and judgment and support of the american people to serve. do we want to discourage people, by saying fdr president, will prosecute you if you didn't fill out your mortgage loan? ? correctly for me think you already are spending your money in some ways? it will make it hard for people to seek higher office. host: michael from broward county, florida, you are on the phone. caller: i think historians will put you down as one of the top 10 most influential for bringing about authoritarianism and nationalism to the world at large. i think that would be surprising to you. i think the reason is because of

your misunderstanding, and i think this can change, it can still change in the future, your influence could be more in the future. if you come to understand and speak to primate dominance theory. that is if you grab an infant and break all the social norms and you get away with it because all the other dominant females and males let you get away with it, you are clearly the number one dominant one in the group. host: michael, why don't you tell us very quickly, why you think john yoo supports authoritarianism? caller: it connects to his nationalistic perspective and that involvement with the federalists and everything, having to do with his lack of understanding of [indiscernible] and survival of the fittest, and the belief that the meanest and baddest, that it doesn't matter

what you do as long as you survive. but here's the thing -- new, tell you what, michael, we will get a response to that because that is a lot of charges, less that mr. yoo respond to being an authoritarian, survival of the fittest, the federalist, et cetera, et cetera. is there any truth, in your view, to what michael said? prof. yoo: this might be surprising. i agree with him 50%, i am a nationalist, but i don't think i am authoritarian. actually, some of the other books we haven't talked about, i have made the case that the united states and other countries should unite less on international institutions for their security, and that we should understand that countries are in competition, that they are nationalist, that the best way for the united states to pursue its security is to be nationalist. host: your book "taming

globalization," is that what you are referring to? let's put it up on the screen so people can see . prof. yoo: and "in point of attack" also, the u.s. should keep its own interest. nationalism gets a bad rap these days. people think the cosmopolitan approach, international law and institutions are better for humanity. but i think when you look at the history of the last century, it is because the united states has been a strong nation and happens, i am glad, to have the right values that we have been able to bring about this incredible period of peace since 1945. we have had no great power wars,

we have had that spread of democracy, that spread of free trade. billions of people have been lifted out of poverty. i think that is because of nationalism. and it is the nationalism of the united states that has made it all possible, sometimes at great cost to our country, we have ensured this system which for 80 years now has brought about this incredible period of peace and prosperity. we have had small wars in that period, but none of the wars between great powers that killed millions, if not tens of millions of people. i think that's a great achievement. really a result of the nationalism of the united states. authoritarianism. i could see where people think i am an authoritarian, but not because of my understanding or misunderstanding of primates and primate theory. [laughter] that would have never been accused of, have to say. people say i am excessively

supportive of presidential power. i don't think i am authoritarian because i like to see the presidency protected as a nice addition. i think of it as the founders created three branches of government. it's only in the last book that i seriously wrote about the third branch, the courts. have spent most of my career writing about the interaction between executive and congress. there is a balance of their -- -- it changes over time, sometimes the presidency has been the more important actor. but it's curious in our history -- there are periods in our history where congress has been more important and presidents were kind of like the agents of congress. they were not the important place where decisions were made. it goes in cycles. we are currently living in a period where the presidents seem to be more important than congress. i think part of that is a political decision.

i don't think it's a constitutional defect. some people tend to think so. and this is because i worked in congress, i think congress has a lot of constitutional power to get its way, but it chooses, for political reasons, not to use those vast powers. congress has enormous powers of investigation, funding, legislation, impeachment as we saw with trump. actually i think a little of the disorder of the term peers ai congress fighting with the president using the powers it has disposal of, an president trump his powers to fight back. a lot of that disorder was something the founders anticipated. in fact, in some ways, time leae founders wanted this to happen. they like to the idea of congress and the president fighting all the time. they would have been ok with paralysis, in a way, because they thought the government should only act when there was a lot of consensus and agreement and it was really important. and so, the fighting they

thought as beneficial between the branches, because they would make sure the government was not doing anything that would really hurt individual liberties, or where the benefits were not clearly in favor as compared to the costs. host: email from ira. 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. [laughs] also, how do you personally combined your thinking of american history as our heritage, your word, with korean history as also your heritage? prof. yoo: i am asian so i am really good at multiple-choice exams. [laughs] actually, i really was not, i

was much better at the essay question than multiple-choice. host: as my nieces say, we are asians, not b-sians. prof. yoo: this is an interesting question about american legal history. i have friends who would say you should put in the roman empire there. we actually think a lot like the romans when it comes to law. that is actually the underpinning of a lot of today, and where the common laws is kind of a weird series of exceptions to it. but i would say that it is clearly before 1789. i would -- for the things i work on, i really think of it as 1776. i actually think the period between 1776 and 1789 is not that appreciated. gordon wood, a great historian, he's always made a big point that we had this enormous

constitutional experimentation between 1776 and 1789 with our state constitutions. use are really interesting ideas about the executive, about the powers of congress and the legislators, and the judiciary. that period is what the constitution reacted to. so it is hard to actually understand 1789 and the constitution and the bill of rights without placing it in the context of state constitutions. i tried to do that my work, and i like to think that less of people now do that. but i will give you one example of the study of residential power. in my home state of pennsylvania -- go eagles, by the way today, with this game against the 49ers. it is not going to be pretty because it is in philadelphia. philadelphians would not want it to be pretty. but pennsylvania created in its revolutionary constitution in 1776, a 12 person executive branch. they were so afraid of executive

power they put 12 people in charge were all picked by the assembly. it was as if we had a 12 person presidency and congress picked all of them, and they could not serve for more than one year and they cannot be reelected. look at how extreme that anti-executive ideal is. then on the other hand you had states like new york, where you have what looks like the roots of our presidency. a single president who can be reelected, has the executive power, as the phrase is used in the constitution. and new york becomes the model as a reaction to the extremes of pennsylvania. also, a lot of the states had no judicial review. the courts were subordinated, the legislature. and most of these were like the england of today. the legislature was dominant. legislative supremacy. you can see in our constitution, our constitution is a reaction to excessive democracy. why would you have a senate you

believed in democracy? why would you have an electoral college or an independent judiciary if you believed in full throated democracy? so that is what i take from, where did american legal history really first start? in 1776. on the essay question, i really appreciate the question. i appreciate all the questions i have had today. i have not ever thought about that before, actually. i had not really thought about how my sense of u.s. history is affected by being korean, or my understanding of korean history. i can't say i ever took a class in korean history, so my knowledge of it is more from what i have studied afterschool. i think it is a tragic history of a small country sitting between very powerful china, russia, japan.

constantly being overrun and dictated to, and absorbed, or within various spheres of interest, until its ultimate colonization by japan. but the thing about history i take away now, i think about it in terms of israel and the united states, even without any resources, south korea is now the 10th richest country in the world. i looked this up. in 1960, it was the second poorest country in the world. north korea was richer than south korea in 1960. so in the course of 50 years, in a land with no natural resources, it was able to advance so far to the point where we are using phones, driving cars. my parents would have thought that was inconceivable that koreans would make a car that would be used in america. all the cars were made by america and sent to korea. how did that happen? so, that is actually a theme of

some other books of mine, in some of my books. of how the right policies and constitutional principles can lead to enormous development if they are used in the right way. that is one of the ways i tried to understand our constitution. it was a document that allowed for the amazing advancement of our country, and has used its power in a very beneficial way around the world. host: your book "striking power" came out in 2017. has the law of armed conflict kept up with the technological changes in warfare? prof. yoo: i want to make clear, i am a terrible book marketer. this book i wrote five years too early. there is even a chapter about ai and war, but in 2016, nobody cares. i should have released that this year. my co-author and i wrote it five years too early. [laughs] he's a well-known professor here

at george mason law school across the river. so, the reason we wrote the book is because we could already see 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 are just robots. so what happens when you have robots and ai? we're seeing this now in ukraine. you can use these drones to destroy the russian black sea fleet. you can use these drones to impede an armor offensive, what we are seeing in ukraine. we are also seeing its use in israel with its war against hamas. hamas used unconventional uses of technology to break through the wall and to get into israel and carry out these terrible attacks. on the other hand, maybe israel is able to use technology now --

that is the chief argument we made, is that if the main goal of the laws of war is to reduce civilian harm, to reduce civilian casualties, we actually argue that we should not be afraid of these new technologies because they actually allow us to do that better. take gps satellite technology, information processing. and robotics. that 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 really limit the harm to civilians. and i think we saw that in the way the united states carried out war in the last 10 years. i hope that is what israel is doing in the war with hamas. we cannot see right now. we will be able to see later what they were able to do. but you are right, the initial premise of your question is right.

the technology is advancing faster than the law and politics are able to keep up. our call in the book was, don't worry about that, though. it is not surprising. in the past, you look at early revolutions, the law and policy caught up, but the technology got used first. and so what we tried to argue was, we should not be as afraid of that as people in the past were, of new technologies in war. host: you mentioned earlier you are working on a new book, and it is? prof. yoo: i am thinking of calling it hamilton's victory, and will be a book about hamilton's constitutional fought. the hamilton musical brothers to mi -- brought this to mind. people love hamilton because he is a man of action, the things he did. it's amazing, he was a poor immigrant to the country, he becomes george washington's right-hand man, he is a treasury secretary in his 30's, a brilliant lawyer.

but what i think sometimes get missed is his constitutional thought. there's books on jefferson's constitutional thought. even george washington, who never wrote down very much, has a book on his constitutional thought. we tend to understate hamilton's intellectual contribution. there have been books about hamilton's thoughts about politics, they're are very good books about that. i want to write about his thinking about because addition. the decisions you asked me in the beginning, marbury versus madison, that is just a renaming of hamiltons number 78. a restatement about hamilton's argument about the national bank. those of the ones most people would know about. want to dig into it and see what else did hamilton say about the thinking of the constitution. i think it profoundly affects are still today. host: michael in mississippi, you have been very patient and now you are on c-span's book tv with author john yoo.

caller: good afternoon. in 1968, president johnson nominated to replace chief justice warren. and it didn't happen of course, i guess, because of the election coming up. then the justice had a financial situation and 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 could not think about anyone else, especially recently. i was just wondering as you look at history, has anyone else had to resign? host: thank you, michael. prof. yoo: i don't think so.

not in modern times. if i meant but the facts of justice fordyce, who was a close advisor to president johnson. in fact, later we discovered fordyce was often giving johnson political advice. even while he was on the supreme court johnson would ask him about -- because fordice had been his lawyer before johnson was president. i believe it was because fordice was practicing law still, had clients paying money. that is still obviously a conflict of interest. i don't think any of the things we have seen since rise to that level. certainly none of the accusations against justices comes anywhere close to practicing law -- this goes to

the initial questions about what has happened to the judicial confirmation process. i could see there being reasons to vote against nominees because they had committed financial improprieties if they were known about. but you have not seen that come up at any of these confirmation hearings. these justice nominees, justices, and the lower court judges, are subject to investigations by the fbi. what it comes down to is efforts to stop justices based on their views and ideology. we first saw that with robert bork in 1987. maybe earlier there were two nominees in the nixon years who were stopped. i think that was also because of their judicial views. in a way, you asked me about one of the things that surprised me when i worked at the senate judiciary committee. one of the things that surprised

me, is that was not the reason. that seems to be a legitimate reason to vote someone down, would be, i think that nominee is going to pursue a vision of the constitution that is at odds with what i think the proper reading is. in fact, i think that is a perfectly valid, making the most valid reason for a senator to refuse to confirm a justice. but instead, we have had a divert to these, i think, things like, oh, someone going on a trip, oh, someone receiving a small gift. i don't think those are really the real issue at stake. it's really a subterfuge for political attack based on the ideology of the justices. interestingly about fordice, i think fordice, if i remember, there was opposition to fordice by the democratic party, that johnson's own party thought he was too liberal for the middle of the democratic party. and then this issue about

justice fordice practicing law and giving legal advice arose. i think fordice actually never came to a vote on the floor, he just withdrew because he knew he didn't have the votes. host: john yoo, before we run out of time i want to make sure we talk about your favorite books and what you are currently reading. we ask all of our guests about this. john yoo -- pardon me -- this list, history of the peloponnesian war, i, claudius and claudius the god, the series on lbj, especially master of the sete, and andrea camilleri inspector montalbano series. those are his favorite books. what was the peloponnesian war? prof. yoo: [laughs] one thing we got into was my

upbringing. i went to an episcopalian 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. so that introduced me to the world of classics. and reading some of these authors gave me maybe this tragic sense of history. you see in history people feeling so hard, bad wars, terrible politics. and the idea that there is nothg new. the peloponnesian war is a war that occurred between ancient athens and sparta for dominance of the greek's world. right after they defeated the persians, they go to war amongst themselves and they destroy themselves. athens destroyed themselves, the greek world essentially destroys itself and liz itself open -- lays itself open for the dominance of alexander.

people used to compare it to the cold war, where we were athens and the soviets were sparta. this time athens won by the way, not sparta. but what i really enjoyed about the book is that, to me, it was like a tragedy, like a play almost. about how the most brilliant athens, the most brilliant thinkers, the wealthiest country, the city that looked most like america, destroyed itself, brought on this war when it did not have to, went on foreign excursions to syracuse which were a disaster. and in the dn, -- the end, i thought we avoided all those missteps. but i loved reading about all the great figures from that time. international relations theories today still assign that as the first book you read. it is required reading because it's two great powers going at war, how did one win and how did one lose. host: why u.s. grant's

memoirs? prof. yoo: when you asked about the books, i put down the books i have read more than once, that i returned to again and again. the time in the history of what he writes about, the greatest threat to the country, the civil war, he wrote about. of course it is interesting about that. but i love the style of it. people i have read have said grant is really the first hemingway. if you read the book and then you read the other books from that time, the late 19th century, other books are so elaborated, ornamented, takes them 20 words to say one word. grant is really the precursor of hemingway, i think. direct, to the point, clear. of course he is a military commander so he is used to given clear orders. but the memoirs are like that. so i love the book because it is not just about the civil war and strategy, but it is about this uniquely american style of writing.

the other person who writes like that is julius caesar. julius caesar's civil wars and gallic wars are written in the same way, clear, direct, straightforward. i like hemingway and faulkner as well, but i love to see the precursor so that. host: so, grant writes like a lawyer? prof. yoo: [laughs] no, grant writes the opposite of a warrior. if you write that quickly, you cannot charge that much money. host: who is inspector montalbano? prof. yoo: these are books my mother introduced me to. she just recently passed away. a cranky sicilian author isow i would describe it. wres book about a cranky sicili detective. and they are so funny. even though they are translated from italian -- i love italy, i love italians -- i think there are about 18 of them.

they are so about how crazy italian politics and laws are, and it is even crazier because it is distantly and all of the infighting, the peculiar personalities. he talks a lot about the food of sicily. every time i read it i get hungry. i grew up in philadelphia, so exotic food for me growing up was italian food. if people like detective models -- novels, a lot of americans read british detective novels. but these are really quite good. host: very quickly, john yoo is currently reading the aforementioned gordon wood, power and liberty, american einhorn, american taxation american slavery, and republican empire, alexander hamilton on war and free government. dave, omaha, thanks for holding. please go ahead with your question. we have got a few minutes left. caller: it is a great pleasure

to talk with john, who is friends with steve hayward. prof. yoo: [laughs] caller: vivek ramaswamy says west virginia versus eta has been one of the most important rulings ever. can you elaborate that? also, you have been sued and persecuted for a legal opinion, and that strikes me as crazy. can you talk a little about that? host: dave, can we ask you what you do for living? caller: i am a lawyer. host: in omaha? caller: yes, in omaha. host: is david friend of yours? prof. yoo: i think he is a friend of steve's. steve you had on last year. steve hayward, i, and then our third host is a woman who uses a pseudonym of lucretia, who is an important figure in the founding

of the roman republic. we have a podcast we do every week on politics. when you had steve on a year ago, i have not joined it. but they needed a liberal. so in the podcast, i am the liberal, steve is the moderate, and lucretia, i don't know where she is come from, but she is really conservative. i am scared of her. they went to graduate school together, they are both teaching in university, and they are both political theorists. they are people who studied aristotle, all the way back. i am a simple lawyer. i constantly try and poke holes and deflate their vast theories of human goodness with the way the world really works. so, glad to get a question about being with seve. our podcast is called the three whiskey happy hour. it's caused me to go back and read a lot more political philosophy than i thought i would.

we just had a recent debate about hobbes and locke. because i think hobbes, if not machiavelli, is the founder of modern political theory. he's the one who comes up with the state of nature. it goes to your earlier question about, am i authoritarian. authoritarians like hobbes get a bad name. he came up with the social contract. we should give the guy some points for that. without hobbes, there is no locke, who is the philosopher that influenced the founding generation. in terms of lawyers, i have not really worried about the criminalization of legal advice. i mean, i am more worried about the criminalization of politics using prosecution, either if you think that is what biden is doing, or you are worried trump is going to do that. using the criminal justice system to really fight out our political differences. there are some people who say that started all the way in the nixon years, or the 40 year --

the ford years. i think that dangerous for our society. because if you cannot get honest, candid, open legal advice, then your ability to make the right decision is going to be narrowed and that will be bad for our society. particularly with the presidents. presidents, whether they have been successful or not, whether you like them or not, they have the hardest job in the country. they have to make decisions in great uncertainty with little information that literally affect the lives of all 350 million of us. so, if they are going to have advisors who are going to censor their advice, or reduce the candor and honesty of what they are going to say, then our presidents cannot make the best decisions for our country. and that is going to hurt all of us. i think that is why we always

did have a practice of leaving ex-presidents alone, not going after them for the decisions they made in office, not prosecuting their lawyers. they try not to. prosecute their cabinet officials. let them make the best decisions they can during their time in office. and 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. host: john yoo has written eight books. he's a uc berkeley law professor of long-standing, former bush administration official. do you stay in touch with your former colleagues at the bush administration? prof. yoo: yeah. i try and stay in touch with other the people i worked with. that is one of the great joys of working in washington. host: and his most recent book is this one, "the politically incorrect guide to the supreme court," written along with robert delahunty,.

john yoo, we very much appreciate your time today. prof. yoo: i understand this is the last show of the series. congratulations to you. i am glad i made it under the wire. host: you are now forcing me to acknowledge that. but yes, to our viewers, this is the last of our regular in depth programs, after 23 or so years. we appreciate you being on with us. we have had 300 or so authors on this program. if you name a nonfiction author from the last two centuries, we will have had tha

welcome to