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Hey everybody. What a night at the Democratic National Convention. I encourage you to listen to our sister episode where we take down Michelle Obama, Bernie Sanders, Andrew Cuomo and so much more. We have a great legal expert with us today. We talk about mail in voting, critical race theory, an assault to the rule of law and so much more. His name is John Yoo from University of California, Berkeley. He loves his country, loves the Constitution.
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Hey, everybody, welcome to this episode of the Charlie Kirk Show. Honored to have with us today a first time guest, John Yoo, who is a professor at University of California, Berkeley. But may I say, one of the more enlightened individuals in the place, People's Republic of Berkeley. He has a terrific book out there, Defender in Chief Donald Trump's Fight for Presidential Power. I highly recommend you go check it out and get a copy. And we look forward to learning from John throughout this podcast.
John, thanks so much for joining us.
Charlie, like I like to say, longtime listener First-Time Guest. Well, thank you very much.
I am honored and I enjoy your commentary. And your writing in particular has been so clear when lawlessness seems to be so pervasive. Let's start with the controversy around mail in ballots. We were just talking right before our program here. You were involved in the Bush versus Gore recount in Florida. I think it was 537 or 537 votes that determined the president. You would know the number and it was a legal nightmare. Some people are afraid that we might have that happen again.
Can you just give us some of your history and background with that and some of the concerns you have with mass mail in voting in Charlotte?
Well, of course, Florida 2000 was about Maylin, but the legal issue at stake there is going to multiply all across the country if states go to complete mail in balloting. And the way to think of it is this. I was a law professor back in the late 1990s and I'd written an article I thought was obscure at the time, which was a federal judicial court. Control or not overstates. It's not considered an exciting topic back then, but then Florida 2000 happened.
And the way to think of it is what happened, the reason the Supreme Court stopped the counting and recounting of all these ballots.
We remember the chads may remember John Bolton was one of those Chad observers back then. That's where people first heard of Bolton.
Roger Stone was there, too. He was screaming outside. It was by shooting you holes in the ballots while he was at it. But the reason it stopped it was this. Elections in our country under the Constitution are the job of states. There's always the backup of the federal government if the states don't do their job. And what Florida was doing was it was allowing each county to apply a different standard to what was a valid vote versus not a valid vote.
So you think about that, the country as a whole, if counties start having different rules about what counts as a mailed invalid, that's legitimate and a mailed and ballot, that's not legitimate.
For example, here's one one. Does it have to be postmarked by what does it have to be received by under Bush versus Gore? If a state allows counties to have different standards, that's in violation of the right of the candidate, Donald Trump. And so what you could see is all these counties applying whatever standard they feel like trying to do it for advantage so that Biden wins the election here, Trump wins the election there, and Trump's going to have to sue all of these states to say, no, there has to be one state that say it all has to be received by the state, by the election date, or it has to be postmarked person, but it has to be the same standard you can imagine if it's meant that's the future of having the the election in person all in the same day, all the same time.
Maylin allows for this kind of abuse where votes are going to mean different things in different places in the country. That's what the Supreme Court said in 2000 when it said, Florida, you have to stop count. Because counties are cheating and you could see that happening all across the country now, not just in Palm Beach County in Florida.
Yes, if I can ask the obvious question for myself, the answer is not obvious, but I think it would be obvious to you there's a federal government able to set any standards at all to how votes are counted. I mean, at least the citizens, for example, right? I mean, non-citizens can't vote. Where is that line is where is that line drawn? Exactly.
So two ways. One is in the Constitution itself, it says states are the ones that set the time, place and manner of elections, but subject to being overruled by Congress so the federal government can step in and pass a law and say elections have to be run a certain way. Mail and votes have to be counted a certain way. The second way is the federal courts, because a candidate's right to a fair election is being violated, the rights of the voters to having their vote count equally.
With another mail in ballot, they also have a constitutional right, they can sue in court the voters and the candidates and get a court to enter a federal court, a judge to intervene in a state election in a state I'm sorry, the state running an election if they if the courts think it's unfair. And we used to think courts would never do that. But Florida 2000, Bush versus Gore was a good example. The court said what the counties were doing there was so outrageous that they were going to intervene and take over the standard for counting the ballots.
So what potentially could be happening then is every state has a different way of doing mail and voting this November. Right. So as we are seeing sometimes some projections out there, say 10 to 15 to 20 percent, even upwards of 30 percent of the population could be doing mail and voting. Each state then has to decide exactly how that is counted.
This is going to be a legal disaster, right? I mean, the Joe Biden campaign has 600 attorneys, I think retained. And that's just the beginning of some of the lawyer army. Can you walk through how these how confusing this can be and how big the stakes are on the legal side of this?
Well, think about this, as we saw in Florida. Unless the election results are clear in the battleground states, the election results themselves may not be known on that Tuesday in November because you're going to have litigation, you have lawyers poring over all the ballots. The mail in ballots are going to fight over whether they've been signed or not. They're going to fight about when they were received or not and how they got there. There's going to be litigation on that.
So a lot of mail in ballots may not be counted right away. You could do days and days and days after the election, which means just like in Bush versus Gore, we may not know who won the election for weeks and weeks after the thing is over. So that's just one possibility. In the second possibility is what if there's fraud? What if people are collecting ballots and faking them or what if they're paying people? You can think of all the kinds of abuse that might go on ballot stuffing could easily go on because of mail.
And here's another example of what Trump lawyers could sue about, which is how did you prove that that ballot actually was cast by that person? You multiply that by the hundreds and hundreds of thousands of people. How are you going to have enough time to check them all? So I think this could mean suppose this happens in places like Pennsylvania, Michigan, Wisconsin, and those that suppose they're close again like they were four years ago. And there's irregularities at the county level.
Then you could see Trump and Biden both suing and that could throw the election result into doubt. And it may take you might remember Florida 2000. We didn't have actually a final end to it until the middle of December. I mean, it would be or wanted it to keep going. Yes, that's and was the Supreme Court that finally stepped in and I believe and finally put an end to it after the national legal circus, and if I remember correctly, some news networks called Gore as the president elect on election night.
I could be misremembering that. I was seven years old.
So it's good. It was good. You don't remember it too well. It was a great but what happened actually was some networks called it for Bush. Well, some that was called Florida for Gore. Then they switched and then Gore refused to concede. He was on his way to concede. And then at the last minute, he refused to and plunged us because in the end, it turned out that Florida we counted actually all the votes afterwards and turned out the Florida had voted for Bush.
And I'm afraid that we might be headed to another legal fight. Can we talk more broadly about the assault on the rule of law? It seems right now that there's a kind of a collision right now between two different types of ways to interpret the Constitution, the more textualist interpretation or the more judicial activist interpretation. And it seems it depends on what circuit you're in and what city you're in. And the laws almost seem as if they're completely and totally different than the same country.
I know a lot of our listeners are outraged. It seems as if there's a complete and total double standard as the application of law. What's your analysis of this, especially in the last couple of months? A great example would be the early release of prisoners in California. Eighteen thousand people being left out, a lot out of prison. Yet pastors are being, you know, threatened to be arrested all across the state of California. What is your thought on the kind of the assault to the core fabric of the rule of law in our country?
Well, the most obvious one, I think, is the treatment of Donald Trump. And you mentioned I have this book out, Defender in Chief, about Donald Trump's constitutional fights. I originally was a Trump skeptic four years ago, but I saw what the people who hated him so much, they wanted to bring him down so badly they were willing to, as you say, twist the rule of law in order to get him. And I'll give you some examples.
It's his opponents, not Trump, that wants to get rid of the Electoral College the way we've picked presidents for over two hundred and twenty years. It's his opponents who talk about stuff. It is packing the Supreme Court with six new justices, which would be a direct assault on the rule of law. No changing the number of judges just until you get the outcome you want. We've talked about impeaching Brett Kavanaugh after he's already gone on the court who talk about independent counsels who are going to criminalize our politics and use investigations against political enemies, who want to nationalize the energy and transportation sectors for Grand New Deal.
So that's just one area is the way people on the other side want to pull down all these constitutional rules. We have used to govern ourselves, I think, quite successfully for two hundred years just to get President Trump. That's an assault on the rule of law. And then the other thing directly, there are some of the examples you mentioned. Then at the state level, you have governors and mayors who are directly trying to resist constitutional orders, federal orders.
To give you an example, the disorder in our cities, cities and states are the ones who are in charge of public health and safety. But you have mayors in Portland and Seattle who are refusing to do their duty, who sometimes themselves are part of the mob, who are attacking federal buildings. It's a rare thing, but unfortunately, Washington, D.C. has to send in law enforcement or even troops into these cities in order to restore the rule of law.
I actually the only two times I can think of cases where city and state leaders stepped aside and just let lawlessness reign. One was in desegregation when the Southerners fought the Supreme Court's decision, Brown vs. Board of Education. The other one was the Ku Klux Klan. Right after the Civil War, mayors, governors just stepped back and let these groups attack the freed slaves. And Ulysses S. Grant actually had to send troops into the south to restore law and order.
I think that's a direct and I think that's a direct assault on the rule of law. And I think, unfortunately, you don't want to see it all the time. But unfortunately, federal law enforcement has to come in and restore it because of for the rights of the inhabitants of those cities.
Yeah, and it's so incredibly Orwellian because they say that Trump is attacking the rule of law and he's upholding the rule of law.
Is he in you have Portland burning for 80 days straight. You'd think there'd be some invalid. Some need to bring in federal assistance.
One legal question I have, John, and maybe you can help me walk through this is I don't like executive orders very much, to be honest with you, especially executive orders that I think centralized power too much. And maybe you might have a different opinion of this because you you wrote a whole book on it. Specifically, I'm talking about the recent executive order about the unemployment benefits and the checks and the two Americans in the stimulus checks. Let me be more clear.
I do like executive orders. If I believe that they're consistent within the executive authority, I'm not sure if this one is or not. I think it's brilliant politically and I support the president. I'm just afraid that under a future liberal administration, which is inevitably going to happen sometime in the future of our country, they can reappropriate funding under some emergency clause of climate change or something to put forth their agenda. Can you explain this recent executive order that the president put forward, why it's constitutional?
What gives him the right to do it? He referenced the DACA decision. I could use some clarity on that.
That's a smart question. Very smart question. And something people should be worried about because you don't want a President Biden saying, I'm going to issue executive orders to stop global warming, as some people suggested during the Democratic presidential campaign nominee's nomination campaign. So actually, this is part of the reason I wrote my book was because if you were just listening to the regular media, read the newspapers, you would think President Trump had to seize the power of Congress and upset the constitutional order.
But if you actually look at what he did, he only suspended the payroll tax. He didn't say he was going to forgive it. He only spent money that Congress had already appropriated for the extension of the benefits. If you look carefully, all of this was in the CARE Act. Now, I think maybe Congress rushed to judgment and passing the stimulus programs. Maybe they went too far. Maybe they spent too much money. But actually, Congress said to the president, if you want to, you can postpone the collection of taxes.
In fact, that's why we all pay our taxes in July and not in April this year. That's very interesting. So actually, Congress, Gatemouth, are same with the unemployment benefits. If the president declares a national emergency, which everyone was saying, even if you listen to Biden, Pelosi, he didn't call it fast enough, then he's allowed to do he's allowed to access these billions of dollars that Congress and the Kahrizak just put into the pot.
Now, compare that to what President Obama did. And I'm glad you mentioned Dakka. I think actually President Obama represented a sharp break with the way presidents had done executive orders in the past. For the first time, President Obama said, I don't like the immigration laws. Congress did pass. Congress does have the power over immigration, but I don't think it's fair to the two million dreamers. So he issued what he called under his prosecutorial discretion. He issued an order just saying they're all free to stay.
I'm not going to enforce the law. Presidents used to issue executive orders to explain how they would enforce the law, how what they're going to carry out, what Congress wants to do in the end when they pass a criminal statute, for example. I think President Obama is the first president in history who just said and this is so different than Trump. Right. Trump is just carrying out Congress's delegation here. President Obama said, yeah, I have a duty to carry out the laws.
That's the chief executive powers to execute the laws. But here he said, I just disagree with those laws, so I'm not going to do it. That's really sharp, the sharp break. That's really the seizure of constitutional power. So the thing I find ironic is you have all these liberals attacking Trump for what we've just been talking about, the extension of unemployment or the suspension of payroll taxes. I didn't hear any of them attacking President Obama for DACA.
And if they were criminals, that they ought to be against both. But they're not.
You said that very well, because even I looked at it and said, how does he get the power to do this? And I'm sure there was someone in the White House counsel's office that designed it. Of course, under an interpretation of the way you describe that is really perfect because it was appropriated by Congress to suspend taxes and reallocate already allocated monies. It wasn't as if President Trump, you know, all of a sudden said, I have the power of the purse.
I'm able to decide that we are going to allocate money, you know, as if it originates. All spending bills must originate in Congress, I think in the House, if I'm not mistaken, constitutionally and so and so or you listen to the news because they won't just assume Trump is.
I guess part of the statement is that Trump's critics, who are the ones who are really misrepresenting what's in the Constitution. They're the ones that are saying that he is the one that is, you know, assuming all this power and in reality they're the ones that, you know, have been the ones doing it previously. I want to get into critical race theory. This is something that is very pervasive amongst the, you know, kind of academic circles.
What is your take on this? Do you get questions about this ever amongst some of your peers at Berkeley? And, you know, kind of the new idea of law now is it should try to it shouldn't be blind. A lot of people believe just this should not be blind, but instead that the rule of law is kind that needs to be put aside. And the preferences of trying to rearrange society as they see fit should be the primary concern.
Charlie, you're some kind of troublemaker. Try to get me fired, aren't you? You no.
Look, you know, all these things we're seeing around the country now, 16 19 project the claim American society is fundamentally oppressive and racist. The claims for reordering of our economy. Everybody in the country now is like Berkeley. It's like, well, when I say that's like welcome home. Welcome to my Sofiane.
You've been fighting this fight for much longer. I know you guys.
But now you see what's really been going on for the last 20 years on the college campuses. You know, it's old hat. And so part of this idea is that America is a critical race theory. And I completely disagree that a critical race theory is that American society is structurally and fundamentally racist, that you and I, even if we don't know it, we're being racist. There's nothing we can do about it. It's sort of hardwired into us.
And so then extreme measures must be taken to root it out. And so, as you say, affirmative action in our universities is a great example. None of the people, very few if any, of the people benefiting from affirmative action now are the ones who suffered the harms of segregation or of slavery, if there are some still left and they have a right to some kind of remedy. But most of the people today. Right, those are not those people.
Why should they get any kind of extra benefit compared to other people that is judging people on the basis of their skin color? I think that's fundamentally immoral. But critical race theorists think we're all racists. So if we're all racists, what's wrong with using race to benefit your side rather than theirs? That's really a grab for political power rather than really an effort to make up for past racial injustices. I think because many of the people who are in the country now had nothing to do with slavery or Jim Crow or in fact, might have been some of them may be the descendants of people who put an end to those terrible rules.
So that's I actually think it's in some ways very Marxist in origin, because Marxists think that a lot of society's traditions and institutions are really their instruments of oppression by some kind of powerful elite that doesn't want the right, the common person to have their fair chance. Look, I'm an immigrant. My parents are immigrants. I was an immigrant to this country. If American society was so bad and so racist, why are tens upon tens of millions of people waiting in line to get in?
The reason why is because no matter what Americans historical sins are, we've corrected for them. There's what other country would willingly commit to the Declaration of Independence and tried to make society better all the time and has succeeded in making itself better to the point where I think if you're if you're a minority, it's way better to be here than most other places in the world. And that's why if people think it's such a racist country, you don't see them trying to move to Mexico or China or France.
All the people want to come here because it is objectively much better here.
That's exactly right. And I'm not trying to get you in trouble. I think you articulated it perfectly.
But, you know, I've got tenure, but you're what you want to test the limits of. It's fine by me. It's so funny.
It's so funny because, you know, you said something that I can resonate with it. You say, yeah, people like what's happening to our country, like the whole country has become a college campus. Now, you see what I have to deal with whenever I go and visit?
You know, it's people are afraid to hear the other side. You know, it's all about critical race theory and postmodern ideas and, you know, lifting up these ridiculous, you know, deconstructionists, integrationist philosophies. It's just so incredibly pernicious if it's not challenged.
So kind of looking at the landscape, can you comment in a couple of minutes? We have remaining on how President Trump and you talk about this in your book, the significance of what he's done to the circuit courts, 9th Circuit Court, Kavanaugh, Gorsuch, the amount of justices and the type of justice. He says that he has instituted this is something I don't think it's talked about enough, you understand the law extraordinarily well for our listeners. Can you help fill them in on how historic the president has been on this specific issue?
First, remember that when President Trump ran against Hillary Clinton, there was a vacancy on the Supreme Court caused by the death of Justice Scalia. And just imagine what would have happened if Hillary Clinton and one had gotten to fill that seat. They're ready for solid justices who are liberal on the court, who always vote together. And they fundamentally believe that the courts should be an engine for progressive social change who want to achieve all those goals of all the postmodernists you are just talking about, that is that is the best description I've heard.
I have to say, I want you to finish. But an engine for progressive social change, the courts. That's perfect.
Critical race theorists. And you think society. Right. Is structurally racist? Well, then the court should be used right. To to pull us out of it. So remember, for first one thing is just by denying that to Hillary Clinton, Trump already had one half the game, but then he filled it with Neil Gorsuch and then he filled a new opening with Brett Kavanaugh. The actual reason the core is not being a strongly conservative as we would like is because if Chief Justice John Roberts, who has been voting along with liberals lately, but that also ignores, as you said, Charlie, what's going in the lower courts know most cases never get to the Supreme Court.
They only hear about 60, 70 cases a year. Most of the law in the country is made by the courts right beneath them, what we call the circuit courts, the appellate courts and Trump. I have to say, I've been involved with, you know, Republican administrations and Republicans in Congress. I worked in Congress to four since Bush versus before Bush versus Gore. I have not seen a Republican president appoint such a deep bench of conservative superstars as Trump.
Has he way out? Does George W. Bush and President Reagan. And so think about that's the bench for the next set of Supreme Court justices. Those are the ones who are going to develop the theories that will be applied. Conservative theories will be the future.
And Trump I think Trump has a record that surpasses any any president in American history, trying to appoint judges who believe the Constitution should be based on what those who ratified it and wrote it thought, and that the role of the judiciary should be a modest one.
I totally agree. And it's transformational. I mean, just the 9th Circuit came out recently because of President Trump's appointments on ammunition capacity, saying that ammunition limits of more than ten rounds are unconstitutional.
The 9th Circuit, I mean, if you try to judge, shop and go around and try to find a judge to fit your, you know, your agenda, you usually would go to the Ninth Circuit.
That's like candy land for social justice, right? I mean, you couldn't think of a better place to try to change the, you know, change America in their image. Now, the social you know, the social insurrectionists they don't like, I don't know, the Ninth Circuit. It might not be the best place for us because of President Trump.
Can you just talk more about your book, Tehsil? Yeah, please. Yeah.
For years, Trump has just brought the courts into a rough balance. If he were to win a second term, then the courts would be really, really remade into conservative, you know, really conservative courts right now with the magazine decision got kind of lucky in the assignment of judges. It's it's even even mostly in most of the country, it would take a second term to really lock in those gains.
Well, and that's everyone listening to this. That is just reason enough to go get President Trump re-elected is the rule of law and judges that that's my children's children that will live under the implications of these decisions for generations to come. Can you just tease your book a little bit more? We'd love to continue to drive traffic to it. Anything we didn't talk about just some of the big ideas you argued for and you talked about why you wrote it. But I just would love to have you comment more on your book.
Just really quickly, what I try to think of was to tie together all the fights President Trump's been having over the last four years and try to take a step back and explain sort of bigger constitutional fight that's going on and what I think it is. And, you know, people could disagree, but I think it is as you look at impeachment, if you look at the Mueller report, if you look at some of the things we've been talking about, what you have is the 20th century's progressive government put into place by FDR and LBJ.
And then Obama is sort of at the highest point, is fighting to resist the people's ability to control the government by electing a president that then takes command. So think about the Muehler. Think about Russia collusion, it's really an effort by the bureaucracy that doesn't want to be controlled, that thinks it has the right to decide who's fit to be president or not, the thinks it should be independent, that they're experts. They don't want to be controlled by our constitution that the framers created in the 18th century was we elect a president, we elect members of Congress and they control the government.
That's the way the people control the government is through. There can be any independent technical experts. But if you saw it, that's what happened with the collusion investigation. That's about impeachment. Right. This was the foreign service was revolting against an elected president. And so I think that's the theme. And maybe that also, you know, you hear some people saying, what's Trump's second term agenda? I think that might be the agenda, which is he's been fighting defense for four years against the sprawling bureaucracy.
If he wins reelection, he can finish the job of making sure we, the people, through the president, through our members of Congress, control what our government does rather than the government controlling what we do. And it's true representative government, and that is really a really well said, the book is Defender in Chief by John You. John, we really enjoyed having you on the Charlie Kirk show here. Thank you for making the time. And I'll have to come visit you in Berkeley.
I'll have to come with a small group of protesters and security, but we'll have to come visit you in Berkeley. But thank you for all that you do and your incredibly wise commentary for the Constitution and for our country.
Thanks, Charlie. And any time next time when you come, let me know. At least I'll take you to dinner after you're done getting beaten up and fighting your way out of Sproul Plaza. Yeah, exactly right.
Well, thank you so much, John. We really appreciate it. God bless you. Thank you. Thanks.
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