'Torture memo' author John Yoo says Trump's attorney general appointment is illegal, will save Mueller's probe


If President Trump was trying to neuter Special Counsel Robert Mueller's investigation into his campaign and Russia when he appointed Matthew Whitaker acting attorney general, he may have been "too clever by half," conservative law professor John Yoo writes at The Atlantic. Whitaker "cannot legally hold the office," thanks to the Constitution's Appointments Clause, and it's very unlikely this Supreme Court will uphold the White House's legal argument that his appointment is valid.
Yoo expressed a famously expansive view of presidential powers in his defunct "torture memo." But even Yoo has argued that Trump occassionally exceeds his presidential powers, and the Whitaker appointment is one of those times. Whitaker can try to shut down the Mueller investigation, an idea he's publicly advocated, but it won't stick, Yoo explains:
The White House may have thought it had cleverly figured out a way to curtail the investigation by appointing Whitaker, but it has instead virtually assured that Mueller will complete his job in his own good time. With questions surrounding the ethics and now the legality of his appointment, Whitaker will have little political capital to expend in defending any limits on Mueller. And even if Whitaker displays terrible judgment and makes the fateful choice to cut off the probe, Mueller now has the grounds to refuse to obey the orders of an unconstitutional attorney general. Trump's clever maneuvering has provided Mueller all the space he needs to finish his investigation and even hand over his files and concluding report to a Congress eager to launch impeachment proceedings. [John Yoo, The Atlantic]
"Trump critics should not find joy in such a result," Yoo cautioned, because "every action of the Justice Department might fall before challenges to Whitaker's appointment," including the prosecution of criminals. You can read Yoo's conservative legal case that Whitaker is an invalid attorney general, and his helpful suggestions for what Trump can and should do, at The Atlantic.
The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

Sign up for The Week's Free Newsletters
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
A free daily email with the biggest news stories of the day – and the best features from TheWeek.com
Peter has worked as a news and culture writer and editor at The Week since the site's launch in 2008. He covers politics, world affairs, religion and cultural currents. His journalism career began as a copy editor at a financial newswire and has included editorial positions at The New York Times Magazine, Facts on File, and Oregon State University.
-
Giorgio Armani obituary: designer revolutionised the business of fashion
In the Spotlight ‘King Giorgio’ came from humble beginnings to become a titan of the fashion industry and redefine 20th century clothing
-
Crossword: September 13, 2025
The Week's daily crossword puzzle
-
Sudoku medium: September 13, 2025
The Week's daily medium sudoku puzzle
-
House posts lewd Epstein note attributed to Trump
Speed Read The estate of Jeffrey Epstein turned over the infamous 2003 birthday note from President Donald Trump
-
Supreme Court allows 'roving' race-tied ICE raids
Speed Read The court paused a federal judge's order barring agents from detaining suspected undocumented immigrants in LA based on race
-
South Korea to fetch workers detained in Georgia raid
Speed Read More than 300 South Korean workers detained in an immigration raid at a Hyundai plant will be released
-
DC sues Trump to end Guard 'occupation'
Speed Read D.C. Attorney General Brian Schwalb argues that the unsolicited military presence violates the law
-
RFK Jr. faces bipartisan heat in Senate hearing
Speed Read The health secretary defended his leadership amid CDC turmoil and deflected questions about the restricted availability of vaccines
-
White House defends boat strike as legal doubts mount
Speed Read Experts say there was no legal justification for killing 11 alleged drug-traffickers
-
Epstein accusers urge full file release, hint at own list
speed read A rally was organized by Reps. Ro Khanna and Thomas Massie, who are hoping to force a vote on their Epstein Files Transparency Act
-
Court hands Harvard a win in Trump funding battle
Speed Read The Trump administration was ordered to restore Harvard's $2 billion in research grants