In the NYT "Daily" podcast recently, the host Michael Barbaro said flatly that Trump does not have the power to fire Mueller...

... so it's interesting to see an op-ed in the Times today, "Of Course Trump Can Fire Mueller. He Shouldn’t." It's by lawprofs John Yoo and Saikrishna Prakash (and I'm not going to look at the comments to see what I assume is a lot of negativity toward Yoo).

It's hard to link to something I remember hearing in a podcast, but I think it was this episode. I was disheartened to hear Barbaro — whom I like a lot and consider unusually sober and fair — present what is a difficult legal question as if it had a known and agreed-upon answer and to imply that Trump was deceitful or ignorant to claim the power to fire Mueller.

Yoo and Prakash lay out the other side of the question, the side that favors greater Executive Power:

[C]ritics insist that Mr. Mueller enjoys protection under Justice Department regulations, which provide that the special counsel may be “removed from office only by the personal action of the attorney general” for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.”

According to this view, Mr. Trump must convince Rod Rosenstein, the acting attorney general, to fire Mr. Mueller. If Mr. Rosenstein refuses, Mr. Trump can fire him and replace him with someone willing to do the dirty work. Alternatively, the president could order Attorney General Jeff Sessions, who has recused himself from the Mueller probe, to rescind the regulations, which date back to 1999, and then fire Mr. Mueller.

But this narrow view of the president’s options rests on a misunderstanding of basic constitutional principles. Ever since the founding, presidents, Congresses and the Supreme Court have recognized that the chief executive has constitutional power to remove executive officers....

A regulation issued by the Justice Department should not be read to limit the president’s constitutional power to remove officers....

Congress is considering a bill that would purport to protect Mueller from firing, but even assuming that did become a statute, it would be subordinate to the Constitution, which gives the President the power to "take care that the laws be faithfully executed." There is Supreme Court case law on that subject  — Morrison v. Olson (1988), about the now-defunct independent counsel law (Congress's answer to Watergate).  It's hard to picture Morrison v. Olson getting overruled, but that's not the issue unless and until Congress passes the bill (and wouldn't Trump veto it? Perhaps not!).

By the way the Yoo and Prakash title — "Of Course Trump Can Fire Mueller. He Shouldn’t" — reminds me of the great old Nixon quote: "We can do that - but it would be wrong."

"All who planned, all who implemented, all who carried out the torture should be criminally prosecuted. How else do we as a society express our outrage?"

"How else do we deter it in the future—except by criminal prosecutions?" said law professor Erwin Chemerinsky, recommending the prosecution of law professor John Yoo, who co-authored the Office of Legal Counsel memo that supported the interrogation techniques criticized as torture in Senate Intelligence Committee’s report.

The Federal Torture Act defines torture broadly, as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering…upon another person within his custody or physical control.”

Yoo [has written] “I believed that the federal law prohibiting torture allowed the CIA to use interrogation methods that did not cause injury—including, in extraordinary cases, waterboarding—because of the grave threat to the nation’s security in the months after the 9/11 attacks.” He added that he was “swayed by the fact” that he believed “the CIA would use the technique only on top Al Qaeda leaders thought to have actionable information on pending plots.”

I'm not a criminal law expert, so help me out here. This issue is specific intent, right?

"Perhaps John Yoo would've thought twice about the dubious legal cover he gave to Bush administration torture..."

"... or his judgment that there are circumstances in which the president could legally crush the testicles of a child to elicit information from his father, if he'd envisioned a future where tourists on the mall would see a statue of a bound, naked child, a masked man cranking a vise around his testicles, and a marble Yoo shrugging his shoulders as if to say, 'I'm not gonna stop you.' That may sound implausibly grisly for a monument...."

From "The Case for Subversive Monuments in Washington, D.C." by Conor Friedersdorf in The Atlantic.

"On the upside, they’re politically immune from getting the John Yoo treatment."

Perhaps. But isn't it amusing to picture them — somewhere in the secret passageways of power — flop-sweating and frantic over the realization Oh, my God, we're John Yoo!?

Guess who rakes Obama over the coals for the abuse of executive power?

John Yoo.

Some think me a zealous advocate of executive power, and often I am when it comes to national security issues. But I think President Obama has exceeded his powers by making a recess appointment for Richard Cordray (whom I respect and have no problems with as a nominee) to head the new Consumer Financial Protection Bureau.

Yoo's key point is that it's up to the Senate to decide whether it's in recess:

Even with my broad view of executive power, I’ve always thought that each branch has control over its own functions and has the right — if not the duty — to exclude the others as best it can from its own decisions....

Yoo says that the Senate needs to defend itself from encroachments by the President, and that here it can refuse to support the agency in any way. But, more important, anyone who is affected by the new agency challenge could challenge the constitutionality of all of the agency's work.

However the courts would ultimately resolve the issue, the questionable appointment casts a pall over all the agency's work and, in an election year, tells us something about the way Obama understands the role of the President. So a third remedy for this power grasp — in addition to Senate resistance and court challenges — is for the GOP candidates to assail Obama for overreaching.

Let's see what those candidates do, because a big question — as the GOP chooses its candidate — is: Who is best at attacking Obama?

"I would rather the Obama folks be hypocrites in favor of protecting the national security than principled fools..."

What would John Yoo say?

"Is Harold Koh the Left’s John Yoo?"

One might well ask.

Taking bin Laden alive "would have required the administration to hold and interrogate bin Laden at Guantanamo Bay, something that has given this president allergic reactions bordering on a seizure."

Says the much-maligned John Yoo, noting that "one of the most valuable intelligence opportunities since the beginning of the war has slipped through our hands."

His capture, like Saddam Hussein's in December 2003, would have provided invaluable intelligence and been an even greater example of U.S. military prowess than his death.

Yoo scoffs at the assertion that the orders were to take bin Laden alive unless he presented a threat:

As Sunday's operation put so vividly on display, Mr. Obama would rather kill al Qaeda leaders—whether by drones or special ops teams—than wade through the difficult questions raised by their detention. This may have dissuaded Mr. Obama from sending a more robust force to attempt a capture.

Early reports are conflicted, but it appears that bin Laden was not armed. He did not have a large retinue of bodyguards—only three other people, the two couriers and bin Laden's adult son, were killed. Special forces units using nonlethal weaponry might have taken bin Laden alive, as with other senior al Qaeda leaders before him.

"Here, it's tie-dye and marijuana. It's just like the 1960s, with the Vietnam War still to protest."

John Yoo, back at Berkeley, endures his environs.

"I think of myself as being West Berlin during the Cold War, a shining beacon of capitalism and democracy surrounded by a sea of Marxism," Yoo observes, sipping iced tea in the faculty club lounge, a wan smile registering the discomfort of colleagues walking by en route to the bar.

He sees his neighbors as the human figures of "a natural history museum of the 1960s," the Telegraph Avenue tableau of a graying, long-haired, pot-smoking counterculture stuck in the ideology's half-century-old heyday.

He's happy in Berkeley, he says, and that's something I understand.

Imagine "Reverse Yoo."

Orin Kerr poses a hypo in which John Yoo is asked to interpret a federal statute that fairly appears to permit enhanced interrogation techniques like waterboarding. The Reverse Yoo believes, personally, that these techniques really are torture and should be forbidden:

[Reverse Yoo] is not going to be like the Nazi lawyers who let the Holocaust occur... So Yoo decides that he must write a memo concluding that these techniques are unlawful.  Granted, he needs to get a bit creative to reach that result.   He needs to stretch a legal term here, bend a legal term there.  But by fudging the analysis when necessary, he manages to write a memo that gets to the result he wants to reach that the CIA is not permitted by law to engage in these interrogation methods.   With OLC’s opinion issued, the CIA never uses these techniques and no one is ever waterboarded.

Now, did the real John Yoo do basically the same thing as the Reverse Yoo? Or is the bending and stretching justified to prevent torture but not to permit it? Does it all depend on whether you think enhanced interrogation techniques are torture?

John Yoo would like Barack Obama to know: "I may have just helped save his presidency."

He'd like a little appreciation for "winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe." Of course, the fight was against the current Executive Branch, including the investigation conducted by the Justice Department's Office of Professional Responsibility:

OPR's investigation was so biased, so flawed, and so beneath the Justice Department's own standards that last week the department's ranking civil servant and senior ethicist, David Margolis, completely rejected its recommendations.

Yoo says he fought for "to help our president—President Obama, not Bush.

If a president cannot, or will not, protect the men and women who fight our nation's wars, they will follow the same risk-averse attitudes that invited the 9/11 attacks in the first place.

Without a vigorous commander-in-chief power at his disposal, Mr. Obama will struggle to win any of these victories. But that is where OPR, playing a junior varsity CIA, wanted to lead us. Ending the Justice Department's ethics witch hunt not only brought an unjust persecution to an end, but it protects the president's constitutional ability to fight the enemies that threaten our nation today.

John Yoo gets a sympathetic ear...

... from Right Wing News.

John Yoo and Jay Bybee are cleared of anything but "poor judgment" in a report that was "softened" by a senior Justice Department official.

Newsweek reveals the findings of the report from the Office of Professional Responsibility:

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) ...

A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder....

So it wasn't a political decision, we're being told. It wasn't that the Obama administration would like  the "torture memo" issue to go away. But consider this new development in the larger context:

For weeks, the right has heckled Attorney General Eric Holder Jr. for his plans to try the alleged 9/11 conspirators in New York City and his handling of the Christmas bombing plot suspect. Now the left is going to be upset...

And the 9/11 trial isn't going to be in NYC anymore.

"I've spent my whole career learning to settle down unruly college students who have not done the reading."

Said John Yoo, about why Jon Stewart couldn't get to him.

"Whether a jury ultimately convicts KSM and his fellows, or sentences them to death, is beside the point."

"The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war."

Yoo.

Too.

"[T]he Obama administration may be attempting to appease its antiwar base ... or trying to look good for the chattering classes."

John Yoo defends his memos:

Imposing Fourth Amendment standards on military action would have made the Civil War unwinnable -- combat occurred wholly on U.S. territory and enemy soldiers were American citizens. The military does not have the time to obtain warrants before soldiers fire upon enemy targets and personnel; the battlefield does not provide the luxury to collect evidence needed to meet probable cause standards in civilian courts. Even if the Fourth Amendment applied, we believed that courts would judge military action under a standard of "reasonableness" -- as they might review a police officer who fires in self-defense -- rather than demand a warrant to use military force to stop a terror attack....

But if the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today's intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future. President Obama has said he wants to "look forward" rather than "backwards." If so, he should not restore risk aversion as the guiding principle of our counterterrorism strategy.

"These memos I wrote were not for public consumption. They lack a certain polish." Said John Yoo.

Polish?

"I think [it] would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice. I certainly would have done that differently, but I don't think I would have made the basic decisions differently."...

"One thing I sometimes worry about is that lawyers in the future in the government are going to start worrying about, ‘What are people going to think of me?’ ... Your client the president, or your client the justice on the Supreme Court, or your client this senator, needs to know what's legal and not legal. And sometimes, what's legal and not legal is not the same thing as what you can do or what you should do."

Any sympathy for the lawyer? For lawyer-client confidentiality? The need for harsh, straight-talk without the verbal lubrication of public speaking.

UPDATE: More here.

John Yoo on the Supreme Court and its Guantanamo decision, Boumediene.

In the WSJ:

Boumediene should finally put to rest the popular myth that right-wing conservatives dominate the Supreme Court.

Is this really a myth? Hasn't it been clear for many years that the conservatives needed a swing vote (or two, before Alito)?

Academics used to complain about the Rehnquist Court's "activism" for striking down minor federal laws on issues such as whether states are immune from damage lawsuits, or if Congress could ban handguns in school.

Oh, yeah, academics. When didn't they complain that the Court is too conservative?

Justice Anthony Kennedy -- joined by the liberal bloc of Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer -- saves his claims of judicial supremacy for the truly momentous: striking down a wartime statute, agreed upon by the president and large majorities of Congress, while hostilities are ongoing, no less.

Saves his claims of judicial supremacy? If you're going to use that inflammatory term, why don't you think it applies just as well to striking down the Gun Free School Zones Act and those attempts to abrogate sovereign immunity? (Justice Kennedy was in the majority in those cases.)

Courts interpret statutes and constitutional provisions and, in case of conflict, declare the Constitution the winner. To do that is to do what is required. It's not a power grab. The real problem — and of course Professor Yoo knows this — is interpreting the Constitution too broadly so that it beats out a statute when it shouldn't. That only deserves to be called "judicial supremacy" if the judge willfully expands the meaning of the Constitution to strike down a statute he doesn't like.

So, really, to put it undramatically, it all boils down to whether the majority or the dissenters had the better interpretation of the Constitution. Yoo, not surprisingly, agrees with the dissenters. Since he also, I assume, approved of the statute, his agreement with the dissenters doesn't test whether he's above the "brazen power grab" he sees from the majority. He wants this statute to survive.

The Boumediene majority ... assumes that we have accepted judicial control over virtually every important policy in our society, from abortion and affirmative action to religion. Boumediene simply adds war to the list. The justices act like we are no longer really at war. Our homeland has not suffered another 9/11 attack for seven years, and our military and intelligence agencies have killed or captured much of al Qaeda's original leadership. What's left is on the run, due to the very terrorism policies under judicial attack.

Justice Kennedy and his majority assume that terrorism is some long-term social problem, like crime, so the standard methods of law enforcement can be used to deal with al Qaeda. Boumediene reflects a judicial desire to return to the comfortable, business-as-usual attitude that characterized U.S. antiterrorism policy up to Sept. 10, 2001.

Now, wait a minute. Yoo is not saying merely that the proper constitutional interpretation yields strong executive powers in the area of war. He's saying that war is different, and courts should not dare to follow their ordinary — business-as-usual — approach to constitutional interpretation. That, in fact, is an argument for judicial willfulness, because it demands that the judges look at real-world conditions, have views about what is good and bad, and adjust the meaning of the Constitution accordingly.

Do not misread me. I'm not saying whether I think the majority or the dissenters in Boumediene did a better job of constitutional interpretation. I'm also not saying whether I think any of the Justices went beyond interpretation and picked the result they believed would do the most good. I'm not even talking about whether ideas about what is good belong in proper constitutional interpretation.

I'm only saying that Yoo contradicted himself.