John Yoo is back on his bullshit.
The man best known for authoring vaguely legal-sounding memos turning the U.S. into a torture state went on Fox News yesterday to muse that New York Mayor Zohran Mamdani should be investigated by the Trump Justice Department. Yoo explained that he was “not trying to exaggerate” as he effortlessly exaggerated potential criminality based on Mamdani asking his own city lawyers if New York can do anything about the International Criminal Court’s arrest warrant for Benjamin Netanyahu when the Israeli prime minister comes to town for the U.N. General Assembly this fall.
Here’s Yoo, making the pitch to anchor Gillian Turner:
The mayor is violating the American Servicemen Protection Act, passed in 2002, and the Justice Department should be investigating him. And the president, under that law, is authorized to use all necessary means to prevent any American or ally from being handed over to that court. So if Mayor Mamdani wants to spend a lot of time dealing with FBI agents and Justice Department investigators, well, he just started that.
Of note, it’s the American Service-Members’ Protection Act — hyphen and all — so Yoo can’t even correctly identify the one statute he’s pegged his baseless legal threat upon. An extra rough look given that, moments earlier, he’d bragged to everyone that he helped pass it back when he was gleefully playing legal Mad Libs to build a case for presidents having unaccountable authority to crush prison testicles… for freedom!
And it is fair to call this a threat, because Yoo has taken on a new role in the administration gray zone, helping Joe DiGenova brainstorm criminal charges that the DOJ can bring against Donald Trump’s critics. It’s clear to everyone paying attention that Yoo has the ear of the DOJ, even from his current role — which has all the legal clarity of the CIA black sites Yoo believes presidents can whisk people off to.
Despite not even knowing the name of the law he’s talking about, Yoo isn’t entirely wrong.
The ASPA — which, for all the talk about its proper title, would much more accurately be called The War Crimes Protection Act — passed in 2002 to shield Americans from war crime prosecutions. Because, in 2002, the W. Bush administration really wanted to do some war criming. The statute does unambiguously bar federal, state, and local officials from cooperating with the International Criminal Court. The law is also sometimes called the “Hague Invasion Act,” because it ostensibly authorizes the president to use the military to spring any American or ally out of a Dutch jail cell. While incredibly stupid and probably a violation of our NATO obligations, the law exists.
Though we really don’t have to reach this law since Netanyahu, as a foreign head of government attending a UN meeting, would carry diplomatic immunity anyway.
In either event, Mamdani arresting Netanyahu would be illegal. But the thing is… Mamdani has not arrested Netanyahu.
The ASPA does not really lend itself to penalizing inchoate conduct. It’s a leash on government officials. And even if it somehow could support a conspiracy charge, “I asked my lawyers about my legal options” is not a predicate act in any theory of conspiracy or attempt an American court has ever recognized. Asking whether a thing is legal is the opposite of doing an illegal thing. In fact, if checking with lawyers counted as a predicate act to support a conspiracy, the incentive would be to never talk to lawyers, which is exactly what the law hopes to discourage.
Theoretically, Yoo understands that this is utter nonsense. But he’s a partisan thug whose current job is ginning up ways to use the Justice Department to exact retribution against Trump’s enemies, and he knows how to chill an administration critic.
It’s telling that Yoo declares, “if Mayor Mamdani wants to spend a lot of time dealing with FBI agents and Justice Department investigators, well, he’s just launched that process,” in the same register as “nice little city you got here, shame if anything happened to it.” And he’s sending the signal that this process is “launched” by merely pointing out to the public that Netanyahu is wanted by The Hague for war crimes. And, for what it’s worth, Yoo thinks the administration should be entirely unaccountable, adding an ominous twist to this strategy.
It’s not limited to Mamdani, because Yoo is telling everyone that if you mouth off about Trump and his friends, FBI agents will bang on your door, waste several days of your life, and leave you in limbo worried about charges that will almost certainly never come because they would be both frivolous and unconstitutional.
In the spirit of “not trying to exaggerate,” siccing the FBI on a guy for making a phone call to his own lawyers is Third World shit. Then again, so is torture, and we know that gets Yoo all lathered up too.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.
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