Below is my column in the New York Post in response to the attack this week by Harvard Professor Laurence Tribe. I am honestly saddened by the ad hominem attacks that have become common place with many academics like Tribe. There was a time when legal disagreements could be passionate but not personal. The use of personal insults and vulgar trash talking were avoided in our profession. Now even law deans have called Supreme Court justices “hacks” to the delight of their followers. I have always said that there are good-faith arguments on both sides of the 14th Amendment theory despite my strong disagreement with the theory. The public would benefit from that debate based on precedent rather than personalities.
Here is the column:
This week, CNN’s “Erin Burnett OutFront” offered what has become a staple of liberal cable news: Harvard law professor Laurence Tribe assuring Democrats that they are justified in an unconstitutional effort while attacking opposing views as “nonsense.”
I was singled out on this occasion for Tribe’s latest personal attack because I voiced a legal opinion different from his own.
Being attacked by Tribe as a “hack” is not as much of a distinction as one might expect.
Indeed, it is relatively tame in comparison to Tribe’s past vulgar and juvenile assaults on others.
Tribe has attacked figures like Mitch McConnell as “McTurtle” and “flagrant d**khead.”
He attacked former Attorney General Bill Barr’s religion and thrills his followers by referring to Trump as a “Dick” or “dickhead in chief.”
Tribe often shows little patience for the niceties of constitutional law or tradition.
He has supported the call for packing the Supreme Court as long overdue.
He has also supported an array of debunked conspiracy theories like denouncing Barr as guilty of the “monstrous” act of shooting protesters in Lafayette Park with rubber bullets to make way for a photo op — a claim found to be utterly untrue.
Some of Tribe’s conspiracy theories are quickly disproven — like his sensational claims of an anti-Trump figure being killed in Russia.
Nevertheless, Tribe remains the “break the glass” academic for Democratic leaders when political expedience requires a patina of constitutional legitimacy.
I have long disagreed with Tribe over his strikingly convenient interpretations of the Constitution.
We crossed swords decades ago during the impeachment of Bill Clinton, when Tribe argued that it was not an impeachable offense for Clinton to lie under oath.
Even though a federal court and even Democrats admitted that Clinton committed the crime of perjury, Tribe assured Democrats that it fell entirely outside of the constitutional standard of a high crime and misdemeanor.
However, Tribe would later say that Trump’s call to Ukraine was clearly and undeniably impeachable.
Indeed, Tribe insisted that Trump could be charged with a long list of criminal charges that no prosecutor ever pursued — including treason.
Tribe even declared Trump guilty of the attempted murder of Vice President Mike Pence on January 6, 2021.
Even though no prosecutor has ever suggested such a charge, Tribe assured CNN that the crime was already established “without any doubt, beyond a reasonable doubt, beyond any doubt.”
That is the key to Tribe’s appeal: the absence of doubt.
Every constitutional road seems to inevitably lead to where Democrats want to go — from court packing to unilateral executive action.
Take student loan forgiveness.
Even former Speaker Nancy Pelosi acknowledged that the effort to wipe out hundreds of millions of dollars of student loans would be clearly unconstitutional.
However, Tribe assured President Biden that it was entirely legal.
It was later found unconstitutional by the Supreme Court.
Tribe was also there to support Biden — when no other legal expert was — on the national eviction moratorium.
The problem, Biden admitted, was his own lawyers told him that it would be flagrantly unconstitutional.
That is when then-Speaker Nancy Pelosi gave Biden the familiar advice: Just call Tribe.
Biden then cited Tribe as assuring him that he had the authority to act alone.
It was, of course, then quickly found to be unconstitutional.
Even Democratic laws that were treated as laughable were found lawful by Tribe.
For example, the “Resistance” in California passed a clearly unconstitutional law that would have barred presidential candidates from appearing on the state ballots without disclosing tax records.
Tribe heralded the law as clearly constitutional and lambasted law professors stating the obvious that it would be struck down.
It was not just struck down by the California Supreme Court but struck down unanimously.
Likewise, California Governor Gavin Newsom pushed for the passage of an anti-gun rights law that was used to mock the holding of the Supreme Court’s abortion ruling in Dobbs.
Yet Tribe declared the effort as inspired and attacked those of us who stated that it was a political stunt that would be found legally invalid.
It was quickly enjoined by a court as unconstitutional.
In an age of rage, the most irate reigns supreme.
And there is no one who brings greater righteous anger than Laurence Tribe.
That is evident in arguably the most dangerous theory now being pushed by Tribe — and the source of his latest attack on me.
Democrats are pushing a new interpretation of the 14th Amendment that would allow state officials to bar Trump from the ballots — preventing citizens from voting for the candidate now tied with Joe Biden for 2024 election.
This is all being argued by Tribe and others as “protecting democracy,” by blocking a democratic vote.
Democrats have claimed that the 14th Amendment prevents Trump from running because he supported an “insurrection or rebellion.”
They have argued that this long dormant clause can be used to block not just Trump but 120 Republicans in Congress from running for office.
I have long rejected this theory as contrary to the text and history of the 14th Amendment.
Even figures attacked (wrongly) by Trump, such as Georgia Secretary of State Brad Raffensperger, have denounced this theory as dangerous and wrong.
Tribe was set off in his latest CNN interview after I noted that this theory lacks any limiting principle.
Advocates are suggesting that courts could then start banning candidates by interpreting riots as insurrections.
After I noted that the amendment was ratified after an actual rebellion where hundreds of thousands died, Tribe declared such comparisons “nonsense.”
He asked “how many have to die before we enforce this? There were several who died at the Capitol during the insurrection.”
My comment was not to do a head count, but to note that (since Tribe believes that there is no need for a congressional vote) one would at least expect a charge of rebellion or insurrection by Trump.
Yet Trump was not even been charged with incitement.
Not even Special Counsel Jack Smith has charged him with incitement in his two indictments.
The 14th Amendment theory is the perfect vehicle for the age of rage and Tribe, again, has supplied the perfect rage-filled analysis to support it.
The merits matter little in these times.
You can be wrong so long as you are righteously and outrageously wrong.
Jonathan Turley is an attorney and professor at George Washington University Law School.
Dear Prof Turley,
You’re not going to make it in the age of rage. That’s a good thing.
You can’t argue with Tribe. Rational, authoritative arguments are useless and a sign of weakness .. . and peace itself is tantamount to TREASON.
“If Putin opts to wage war on our ally, Ukraine, such ‘aid and comfort’ to an ‘enemy’ would appear to become ‘treason’ as defined by Article III of the U.S. Constitution,” Tribe said in a tweet that has since been deleted.
*idk what they’re teaching up @ Harvard these days, but there is nothing like the sight of an amputated spirit . .. there’s no prosthetic for that.
https://www.youtube.com/watch?v=Jd10x8LiuBc&t=76s
Stop calling tribe an academic. Nothing he has done lately deserves the honorific. They guy is a moron, address him as Mr tribe or Larry the law guy.
Not just in the good professor’s column today but in other articles from other news outlets, Tribe has displayed juvenile, emotional rants similar to a very insecure, angst ridden teenage.
It is sad.
After the 2016 election, some said that the election of Trump was a sign of the condition of the country.
What they failed to mention was those, like Tribe, who were/are reflective of the condition of the country.
Just look at some of the comments from our leftist friends.
“…Because he’s Tribe
He’s Larry Tribe
Not just Harvard’s best professor
But the smartest man alive
No matter what the rumors say
He is the Marshall of today
Because he’s Tribe
He’s Larry Tribe! (Hey hey).”
https://youtu.be/dwOhYK_v3aw?si=IORuKuSSOSoves5d
At 81, Larry is showing his true colors. “Get off my lawn!”, right Lars?
What TRibe and Merritt Garland have in common is their past ability to remain under the radar with their radical viewpoints. When each aspired to joing the Supreme Court, each was a paragon of virtue, wisdom, and common sense – all the qualities you would want in a Justice. Once their slot was filled without them and their time had come and passed, they became the real zealots and crazies they always were. Tribe today reminds me of a drunk telling folks what he really thinks of them. It’s scary when you consider just how close he came to the Supreme Court and makes one wonder about some who today sit on that court.
A few thoughts on the merits:
1. The leading case on this question, In re Griffin, decided by Chief Justice Samuel Chase on circuit, held that this clause of the 14th Amendment was not self-executing. Though not a Supreme Court precedent, it has been the highest court decision on this topic for about 120 years. It has been argued that an originalist Supreme Court should disown this decision, because it was based on consequentialist rather than textualists or originalist reasoning. It is not clear to me that the decision could not be justified on textualist or originalist ideas or, if not, that it should be disowned.
2. Former AG Mukasey just argued in the WSJ that the clause does not apply to a President, because he does not take an oath under Article VI as an officer of the United States but under Article II as President. His argument is textualist in nature. The implication is that even if Trump were convicted of insurrection or voted by Congress to this effect, he could not be disqualified under this clause.
3. Trump did not engage in an insurrection or rebellion against the United States, or give aid and comfort to enemies of the United States. None of the indictments charge him with this. He was acquitted in the Senate of similar charges in his second impeachment.
It is unlikely that any plaintiff, other than possibly a candidate against Trump, would have standing to challenge his placement on the ballot. If this is to be decided by a court it would likely happen only if Trump were barred from the ballot by a state or local official and if Trump then challenged that action.
Sorry, Griffin’s Case is about 150 years ago, not 120.
The law may or may not be an ass but many of those who practice it are — dangerously so. Thank you Professor Turley for this succint summary.
Those of his ilk are a constant reminder of those who still can remember, what the composition of the participants of the Wannsee Conferennce was. “The men seated at the table were among the elite of the Reich. More than half of them held doctorates from German universities..” ““Those who cannot remember the past are condemned to repeat it” …
Harvard Professor Laurence Tribe’s legacy: Disgrace.to himself and Harvard.
I have found “Professor” Laurence Tribe to be the loudest voice in creating straw-man arguments anywhere. He creates his own version of whatever he wants to attack, so he can attack something that doesn’t exist anywhere.
He was also the one that proposed a lavish idea of how Hillary Clinton could be elevated to the Oval Office after the decisive election of Donald Trump in 2016.
He has also caused me to consider the definition of “Constitutional scholar” to mean, “Anyone who argues against what the Constitution says”.
“I am honestly saddened by the ad hominem attacks that have become common place with many academics like Tribe.”
Tragic but predictable.
When you abandon the field of ideas, arguments, reason — you are left with nothing but the projection of your own self-loathing. Thus the hostility, uncapped — in the form of playground insults and vitriol.
Hear Tribe and then understand the irony that Harvard Law School is still considered a top 5 law school.
In defense of Harvard Law School, I can only say that nearly every law school is now crap.
IDK what constitution Tribe’s been reading, but it sure as hell ain’t the U.S. one!
If he’s always wrong, and it sounds like he is, then why elevate him by commenting on him and his rhetoric. I realize that it is personal for you but you are giving him the stage by commenting at all. No one watches mainstream media anyway.
I wish it were true that no one watches mainstream media, but they do. Many will hear of Professor Turley for the first time from the Mainstream media coverage of Tribe’s remarks.
Says a lot about the spiraling decline of Harvard to have Laurence Tribe as one of their “professors”. Sad thing is Jonathan, there are Tribe-Lites in many other law schools in today’s Amerika. The rush toward censorship and communism continues unabated. Thank you for an excellent article and please keep them coming.
Never forget that Harvard allowed David Hogg to attend
“I am honestly saddened by the ad hominem attacks that have become common place with many academics like Tribe.”
LOL — When was the last time Turley checked out his own comment section? There are more ad hominem attacks here in Turleyville on a daily basis than “Woolworth’s has got beads” (to quote Sky Masterson from Guy’s & Dolls):
You’re an idot!
That’s a joke, btw
Tribe is an embarrassment to the legal profession
The legal profession is an embarrassment.
Clearly Tribe is the Democrats’ useful idiot. One wonders what’s missing in his life for him to have so basely prostituted himself to the power hungry and the corrupt? Does he really need those strokes from the likes of Pelosi and Biden? Pity the poor man — history will not be kind to him.
Tribe is to law what Krugman is to economics.
Tribe jumped the proverbial shark long ago. What’s concerning is this what caused it and how very contagious it seems to be.
We’ve seen in the past how very dangerous such mental derangement of a small but vocal minority can find a home with a powerful elite and how it can morph into a very dangerous situation for an entire country.
As far as the cause is concerned, could it be fear of exposure which is causing such bizarre behavior? Fear of a loss of power?
Or is it an absolute commitment to some utopian vision?
Professor Turley, do you believe those who are in a position to address these problems understand the danger this true pathological pandemic poses to our country? They certainly don’t act like it- which causes us to wonder, are they in on it?
Suggested edit:
“… Now even – Law Deans, Legal Scholars, Lawyers-Gone-Media-Pundit, Wanna-Be-Lawyers, Lawyers-who-think-they-are-Lawyers … have called Supreme Court Justices “hacks” to the delight of their followers and satisfaction of their ID, Ego, and Super Ego. … ”
https://www.simplypsychology.org/psyche.html
Consider the source. Tribe would be the first to round up those who oppose the Party talking points, shut down their businesses, deprive their children of schools, cancel their livelihoods and force them to wear a gold star N95 mask while his ilk dine at elite restaurants without any concerns for the aforementioned