In the closing stretches of the November 2024 election campaign, the Center for Citizenship & Constitutional Government hosted a debate on campus titled “The Presidency, the 2024 Campaign, and the Future of American Democracy” between legal experts John Yoo and Harry Litman on October 11, 2024.
Yoo and Litman are both prominent law professors and former government officials, yet each approaches the law with an opposing political perspective. Yoo, who played the role of the self-professed conservative in the debate, is the Emanuel S. Heller Professor of Law at the University of California, Berkeley and formerly served as a Deputy Assistant Attorney General in the George W. Bush Administration, as well as general counsel to the Senate Judiciary Committee. He currently features as a regular commentator on Fox News. Litman served as Yoo’s liberal foil in the debate and currently acts as the senior legal affairs columnist for the opinion page at The Los Angeles Times. He also is the host and creator of the Talking Feds legal podcast and appears as a regular commentator on MSNBC, CNN, and CBS News. Prior to his current career as a prolific legal commentator, Litman served as a Deputy Assistant Attorney General under President Bill Clinton and then as U.S. Attorney for the Western District of Pennsylvania following an appointment by the same president. During his work in government, Litman also taught as a law professor at University of California, Berkeley; Georgetown University; and the University of Pittsburgh.
Yoo and Litman have been friends and debated with one another for decades. At the debate on campus, the two amicably sparred on a number of issues related to the 2024 election and the broader topic of American democracy and the presidency.
Professor Phillip Muñoz, the Director of the CCCG, opened the debate by addressing the unprecedented prosecutions of President Donald Trump. He posed the question, “Are these prosecutions a way to uphold our democracy in the rule of law…, [or] do they threaten democracy?” Yoo answered first, arguing that the prosecutions had significant unintended consequences, a “boomeranged” effect that ultimately harmed those seeking to get Trump out of office. He contended that the prosecutions were pivotal in helping Trump win the GOP primaries because they dominated media coverage and “sucked all the oxygen out of the primary race,” inspiring the Republican base to “rally around the flag” and coalesce in support of Trump.
Additionally, Yoo criticized the nature of the charges against Trump. Yoo remarked, “The utter weakness of the charges that were brought undermine the idea of neutral prosecution.” Yoo described the “tenuousness of those claims and the weakness of the facts” in the prosecutions as political attacks that threaten our democracy by undermining public faith in the “neutrality and partiality in our system of justice.” Lastly, Yoo emphasized the need for a “heightened standard to prosecute [presidents]” because there are “other political values at stake” in these cases, such as the need for an “energetic presidency.” Yoo claimed that these valued strengths of the American presidency could disappear if presidents are subject to “legal liability for the decisions they make in office.”
In response, Litman took aim at Yoo’s concerns with the reasoning behind the prosecutions and posed what he called “an empirical question”: “Given the conduct at issue in the four cases, would charges have been brought against any generic person?” He asserted that Trump’s actions were unmatched and that since “there’s no conduct remotely close to what Trump did,” these prosecutions should not be seen as an attempt to remove Trump from office but rather as a necessary response to uphold the law. Simply put, Litman saw the rule of law and its application to Trump as a “no brainer.” In relation to the January 6th, 2021 attack on the Capitol, Litman claimed it would be “extraordinary not to bring that case” against Trump. In taking this line of thinking, Litman dissented from Yoo’s position that former presidents should be prosecuted according to a different standard than private citizens. Litman saw a lack of prosecution as a threat to democracy because if the federal cases were not brought up, then “we would have to question whether we are a government of laws and not of persons.” According to Litman, letting Trump “walk” on these “serious offenses” would disregard the fundamental principle of the rule of law: “application without fear or favor.” Although Litman viewed the prosecutions positively in a legal sense, he agreed with his interlocutor that they did aid Trump politically.
Shifting from the presidential election, Dr. Muñoz redirected the debaters’ focus towards the recent Supreme Court decision, Trump v. The United States, on presidential immunity. The Supreme Court ruled that the “official actions” of the presidency are immune from criminal prosecution. Muñoz surveyed Yoo and Litman: “Did the Supreme Court get it right?” Litman answered first, speaking critically of the opinion. He argued that “a principle we all grow up with from nursery school, that no person is above the law,” was disregarded in the Supreme Court's decision. Litman described the “fundamentally chafing” decision as tantamount to making “the president a king.” Litman criticized the decision as an “odd separation of powers,” pointing out that in this case one branch of government was actually helping to expand the power of another, directly opposite to the way that the separation of powers is typically thought of in American constitutional thought. Lastly, he underscored the broader implications of this decision for American society, stating that it has had a “very corrosive effect on people’s confidence in the rule of law and the justice system.”
Yoo responded to the same question by again highlighting what he described as a pattern of “liberals doing things with unintended consequences,” pointing to the fact that it was Trump's prosecution that led to the Supreme Court decision, which could hinder future prosecutions of former presidents. He described the prosecution that led up to the decision as counterproductive: “The prosecutions were so extraordinary that the Court responded in this extraordinary fashion too.” Yoo was glad that the recent decision prioritized the “need for energy” in the executive over “contemporary concerns” about the case at hand. Nonetheless, Yoo criticized the decision as “a significant distortion of our constitutional law,” due to what he saw as the decision’s lack of clarity.
After contending over these issues relating to the Trump cases and the American presidency, the interlocutors ended the debate on a lighter note by discussing anecdotes from their respective experiences clerking for Supreme Court justices. Yoo, who clerked for Justice Clarence Thomas, described how Justice Thomas used to enjoy road-tripping around the United States without pomp or fanfare, often not being recognized when he stopped to eat but never courting any special treatment. Litman, who clerked for the late Justice Thurgood Marshall and Justice Anthony Kennedy, shared a story about Justice Marshall. Litman recollected that he and Justice Marshall had once been in an elevator in the Supreme Court when an attorney entered and, without realizing who Justice Marshall was, brusquely demanded that he bring the elevator to the floor of the justices’ chambers. Justice Marshall, seeing an opportunity to play a joke on the rude stranger, played along. Once they arrived, Justice Marshall left them to change into his robes. Mr. Litman recalled how later, when Justice Marshall exited his chambers fully robed, he greeted the same attorney, now dumbstruck, “with a wink and a smile.”
Although Litman regretted having to leave immediately afterwards these warm closing notes of the debate, Yoo appreciated the chance to stay and watch the Fighting Irish defeat Stanford football the next day.
This article was contributed by CCCG Writing Fellows Sidney Waihenya and Luca Fanucchi.
The full recording of Yoo and Litman’s debate can be viewed on our YouTube Channel. To stay in touch with the Center for Citizenship and Constitutional Government and be the first to know about upcoming events, subscribe to our mailing list here.
Originally published by at constudies.nd.edu on November 14, 2024.