Criminal Justice

Prosecution of Democrats will repair rule of law, says law prof who wrote 'torture memos'

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GettyImages-John Yoo

Former Department of Justice official John Yoo testifies during a hearing on the administration’s interrogation policy in June 2008 in Washington, D.C. (Photo by Melissa Golden/Getty Images)

Republicans will have to prosecute Democrats “to enforce a political version of mutual assured destruction” that will discourage liberals from charging future GOP presidents, according to a professor at the University of California at Berkeley School of Law.

Writing at the National Review, professor John Yoo—known for the Department of Justice “torture memos” that he wrote supporting waterboarding—blamed the prosecutions of former President Donald Trump on Democrats, saying the party has “crossed a constitutional Rubicon.”

Commenting on Yoo’s essay are columnists for New York Magazine (via the Marshall Project) and MSNBC.

Yoo wrote or helped write two memos arguing that torture bans don’t apply to military interrogations of al-Qaida suspects.

For 235 years, Yoo wrote in the National Review, presidents declined to prosecute predecessors, including former Presidents Gerald Ford, George W. Bush, Barack Obama and Trump.

“Gerald Ford, in a great act of statesmanship, pardoned Richard Nixon, even though it doomed his chances in the close 1976 election,” Yoo wrote. “Bush did not prosecute Bill Clinton for lying to the Whitewater special counsel, even though Clinton’s Justice Department had conceded that he would become legally liable once he left office. Obama did not attempt to relitigate the difficult policy decisions made during the war on terror by prosecuting Bush and his aides (of which I was one). Trump did not order the investigation of Hillary Clinton, even though her intentional, illegal diversion of thousands of classified emails to her home computer network was a central theme during his campaign.”

Yoo complained that the hush-money election-interference prosecution of Trump was weak, and the trial focused on “the salacious details of the encounter” between Trump and adult film actress Stormy Daniels.

“The superficiality of the facts and the vagueness of the crimes magnify the harm that Democrats have inflicted on our political norms,” he wrote.

“Repairing this breach of constitutional norms will require Republicans to follow the age-old maxim: Do unto others as they have done unto you,” Yoo continued. “In order to prevent the case against Trump from assuming a permanent place in the American political system, Republicans will have to bring charges against Democratic officers, even presidents.”

The New York Magazine article said Yoo’s argument for revenge prosecutions “underscores the progression of ‘lock her up’ from wild seriously-not-literally Trump-campaign demagoguery in 2016 to party doctrine in 2024.”

There is “literally zero evidence” that President Joe Biden was behind the prosecutions, and Yoo was wrong to characterize Trump as an innocent victim, according to the New York Magazine article.

The MSNBC article said charges by politically motivated prosecutors could “tilt the playing field. If the public can be convinced that all prosecutors are corrupt partisan actors, then their work may be disregarded as mere political gamesmanship, and Trump’s convictions and impeachments will no longer matter.”

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