As Trump allies seek to justify deploying the military at home — be it to round up undocumented immigrants, quell protests, or simply make an aggressive point — they’re looking again and again to the early 2000s. The nation is in crisis. An invisible enemy has attacked, requiring a powerful presidency to confront a novel threat.
These Trump allies are looking towards the work of an attorney who was stationed at the time in the Justice Department’s Office of Legal Counsel. It’s John Yoo, the lawyer best known for authoring a series of 2002 memos that gave legal justification to the use of torture during the War on Terror.
The most striking example of Yoo’s current influence comes in a March 2024 policy brief that made an extensive argument for why the military could be deployed domestically in order to protect the southern border. The memo was written by Ken Cuccinelli, the Trump-era acting DHS deputy secretary, and was published by a think tank run by Project 2025 associate and former Trump OMB chief Russ Vought.
But Yoo’s influence in Trumpworld extends beyond his justification of domestic deployment of the military in an emergency situation. He’s also engaged with the MAGA concerns of the day: after a Manhattan jury found Trump guilty on 34 felony counts, Yoo demanded tit-for-tat prosecutions of Democrats by Republicans. He’s popped up at various points in Trump’s defense against accountability: he testified for John Eastman in his disbarment proceedings; a longtime Yoo co-author also appeared as a witness for Trump in a Colorado proceeding over whether he should be disqualified from running for office due to his 2020 coup attempt. According to texts obtained by TPM, in December 2020 Trump legal aide Boris Epshteyn asked fake elector attorney Ken Chesebro if he had Yoo’s number; the next day, the messages show, Chesebro told Epshteyn that he hoped he would be able to “woo Yoo into being involved.”
Rolling Stone reported last month that, lately, Yoo has become a “guiding light” to some in Trumpworld, saying that his legal theories had been presented to the former President. Now, Trump allies are citing Yoo’s work justifying the use of the military on American soil as the GOP candidate himself muses about deploying the military domestically. (Most recently, Trump retruthed a post calling for “public military tribunals.”)
TPM asked Yoo about the 2020 election messages, and any influence he might be having on what may be the worst potential excesses of a Trump second term. Yoo replied that his apparent influence came as a “surprise.”
“But I have had no contact with the Trump campaign on these issues and I have no idea what Trump allies are saying nor what they plan to do should Trump win a second term,” Yoo wrote. “I was not aware of this policy brief until you brought it to my attention.”
He added in the email that, to his knowledge, he had “never met” nor “ever been on any phone call, email, or text” with Chesebro or Epshteyn.
“If they were trying to get me involved in their activities, they certainly failed,” Yoo wrote.
The Cuccinelli paper cites an October 2001 memo that Yoo co-wrote for the Bush administration. The document, titled “Authority for Use of Military Force To Combat Terrorist Activities Within the United States,” argues that the military can be deployed domestically in operations against terrorists.
It presents a breathtakingly broad view of presidential power, one that permits the President to, for example, use the military to detain U.S. citizens on American soil, provided that they’re determined to be enemy combatants.
Yoo argues in the memo that if the military is serving a national security purpose while operating domestically, and not a law enforcement purpose, then certain constitutional provisions either do not apply or have been already met. The Fourth Amendment requirement for a warrant, for example, would not apply; the First Amendment, Yoo argued, could be “subordinated to the overriding need to wage war successfully.”
“The president has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States,” Yoo wrote along with a co-author, attorney Robert Delahunty Jr.
The presence of Yoo’s memo in the piece suggests that Trump advisers aren’t merely touting the prospect of a domestic military deployment to terrify and provoke liberals (though they’re surely doing that). It’s akin to a general dusting off decades-old plans for a wartime emergency, preparing to put it into action.
All of this is contingent on something that’s conspicuously absent from today’s United States: a national emergency.
Though many civil liberties advocates regard the memo as a high water mark of the Bush administration’s overreach after 9/11, there was an actual crisis at the time that it was drafted: Al-Qaeda had launched surprise suicide attacks on New York and Washington, shocking the nation.
There is, of course, no equivalent crisis today. There’s nothing that even bears a passing resemblance. But many in Trumpworld are speaking and acting as if there is one. One Heritage Foundation official warned TPM about the “terrorist element” coming out in force if Trump wins the 2024 election.
Yoo took questions on C-SPAN last year, and one listener asked about a November 2023 Washington Post article which reported that Trump aides were discussing a similar, but distinct means to deploy the military domestically: invoking the Insurrection Act to quell protests on day one of his second term.
Yoo emphasized that any application of the President’s domestic military powers would have to come in response to some form of emergency.
“It does allow the President to call out troops, but not just because a President feels he’s surrounding by enemies or surrounded by resistance to his administration,” Yoo said. “And not simply to respond to protests. It has to be civil unrest that prevents law and order, that prevents law enforcement, that prevents the execution of the laws from occurring.”
Yoo then addressed the prospect of Trump ordering politically motivated prosecutions. He said that he believed such prosecutions would be inappropriate, and that DOJ attorneys would “refuse to carry that out.”
“I don’t think prosecution as properly used in our system is for going after your enemies or investigating your opponents,” Yoo said in the December 2023 conversation.
But after Trump was convicted in New York state court, Yoo reversed himself and began to demand that Republicans use “banana republic means” to prosecute Democrats wherever they have the power to do so.
“You have to retaliate,” Yoo said at a July conference. “You have to retaliate in the same way, until you restore some amount of deterrence.”
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