Stealing a page from Sen. Mitch McConnell’s (R-Ky.) Merrick Garland playbook, Berkley law professor John Yoo on Wednesday proclaimed that the Framers of the U.S. Constitution would have strongly opposed the impeachment of President Donald Trump within one year on an election.
Appearing on Fox News’s The Ingraham Angle Wednesday night, Yoo denounced Democratic presidential candidates for supporting impeachment, claiming Trump’s removal from office would be antithetical to the Framers’ intent.
“I’m glad they’re reading the Constitution and citing the Framers for once, but they’ve got it exactly backwards,” Yoo said. “What the Framers thought was the American people would judge a president at the time of an election, they would have never wanted an impeachment within a year of an election, it’s up to the American people.” He did not cite to any evidence supporting his take on the Framers’ thinking.
Fox guest John Yoo says the framers of the Constitution "would never have wanted impeachment within a year of an election" pic.twitter.com/Yjd7ZBYguR
— Jason Campbell (@JasonSCampbell) October 17, 2019
Yoo previously served as the deputy assistant attorney general of the Justice Department’s Office of Legal Counsel under George W. Bush, and was the principal architect of the administration’s position that the president may unilaterally wage the “war on terror” and torture enemy combatants. In his 2003 “Torture Memo,” Yoo, who once defended the president’s right to order the crushing of a child’s testicles, wrote that such barbaric methods could be justified by “necessity or self-defense,” and prohibited “only the worst forms of cruel, inhuman and degrading treatment,” which were left undefined.
Yoo’s unsubstantiated take on the Founders’ intent caused an immediate uproar amongst legal and historical scholars.
“Yoo presents literally zero evidence for this claim beyond his telepathic link with the Framers,” Cornell Law professor Josh Chafetz wrote. “This is probably because there is no evidence I know of that would support this claim. And even if there were, serious academic originalists long ago gave up on ‘what the Framers would have wanted’ as a criterion of constitutional meaning, anyway.”
Chafetz’s take was echoed by Fordham Law professor Jed Shugerman, who said that Yoo’s notion of constitutional originalism “should just be called ‘magical thinking projectionism’ or ‘this thought originates from my tuchus.” The Constitutional Law professor then provided a more historical rebuttal to Yoo’s statement.
“At the [Constitutional] Convention, George Mason (who introduced the term ‘high crimes and misdemeanors’) explained that a president should be impeached if he ‘procured his appointment’ by corrupting the ‘electors,’” he wrote, adding, “And of course, this corruption would happen in an election year.”
Former federal prosecutor and current University of Michigan law professor Barbara McQuade simply pointed out that “the Constitution contains no prohibition on impeachment based on proximity to an election.” She also said a textualist such as Yoo should agree that “if the Framers had intended a time limit, they would have said so.”
[Image via Fox News screengrab]