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Trump consults 'waterboarding' lawyer on how to skirt Congress through executive order loophole

'Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency,' attorney John Yoo said.

Graig Graziosi
Monday 20 July 2020 21:50 BST
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Donald Trump suggests he could reject 2020 election results

Donald Trump is exploring options for circumventing Congress by consulting with a Bush-era lawyer that tried to legally justify torture via waterboarding.

John Yoo told Axios that he was consulting Mr Trump on a US Supreme Court ruling on immigration that could allow Mr Trump to issue executive orders to skirt federal law.

Mr Trump said in a Fox News interview Sunday that he intended to use the interpretation of the law to attempt to force his decisions on healthcare and immigration, as well as "other plans" through.

Mr Yoo is a lawyer known for a legal defence of waterboarding he produced for the George W Bush administration in August 2002. He was the deputy assistant attorney general in the Office of Legal Counsel at the time.

Mr Yoo's upcoming book argues Mr Trump has returned the power to the presidency that the founding fathers intended it to have.

The attorney's ideas hang on a Supreme Court ruling last month that blocked Mr Trump from ending the Barack Obama-era DACA immigration program. Mr Obama instituted DACA using an executive order, and Mr Yoo believes the same laws protecting DACA could protect executive orders issued by Mr Trump for at least two years into his successor's term, should he lose the 2020 US election.

The Supreme Court's ruling against DACA was not that the program could not be disassembled, but that Mr Trump's attempt to dismantle the program did not follow proper procedure.

Constitutional experts have criticised Mr Yoo's theories as ignorant to the limits on the reach of the executive branch and by the president's specific powers. They also took issue with Mr Yoo's historical commentary, arguing the founding fathers intended to prevent tyranny, not enable another tyrant by providing means by which to skirt Congressional oversight.

Regardless of Mr Yoo's understanding of executive powers, the question the attorney raises - which he discussed at length in the National Review - is not if Mr Trump can issue executive orders legally, but rather if he issues them, who would actually stop him?

"Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency. And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two," Mr Yoo wrote.

Mr Yoo's article was later spotted on Mr Trump's desk.

According to Axios, two Trump White House officials spoke with reporters anonymously and said that while the president is interested in Mr Yoo's ideas, the White House isn't going to rely solely on issuing executive orders.

"You have to act in good faith, and think that what you're doing is good and legal," one of the officials allegedly said.

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