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.
Does Tribe’s position also include all the Dems who either supported the antifi/ BLM riots in 2020 ( burning down Federal buildings) or lied , stating these were “ peaceful protests” or simply refused to condemn the rioting as Biden did for months. These 575 separate riots in that Summer were clearly an attempt at insurrection.
Just because he a bona fide teacher of law, does not exempt him for the madness that everyone on the Left is now infected
Tim, go back and read the piece again.
There is a striking difference between attacking the person (ad hominem) and attacking the ideas they are championing.
he hasn’t called anyone a hack or dickhead. You just keep being you!
This guy sounds suspiciously like the lawn boy to me…
“he’s being rightfully criticized for his own views”
Exactly. My god, the lack of self awareness.
“He” is being criticized. Not “his views”. And you say “rightly so”.
SMH
strikingly convenient interpretations of the Constitution.
Here is the ‘nut’ of the article and indeed the basis of leftist dogma.
‘Convenient’ interpretations…of law, constitutions, facts. Without the seemingly super hero ability to bend their ‘core values’ into pretzels to advance their current talking point, they would be effectively muzzled
Have you noticed the Republicans getting sentenced for their convenient interpretations of the Constitution, Peter Navarro being the latest example? Have you ever heard the term Presidential Immunity applying to criminal acts and to his minions before now? Well there was Nixon who said if the President does it it’s legal. All this “age of rage” Turley attributes to democrats can be disputed by reading the comments on Turley’s blog. The rage lives here!
To enigmainblack.com. You are not committing a criminal act until you have been convicted of a criminal act I believe it’s known as “being innocent until proven guilty”. Inconvenient for many people and the government but that is the meaning of the constitution.
Ugh, GEB, i was really hoping no one would take the bait of this brain dead comment…
Tom,
Looked more like whataboutism than a comment about the topic at hand.
Just scroll past.
No offense, but that’s ridiculous. Some acts might be debateable and others not commonly known to be crimes but generally speaking, the criminal knows they are commiting a crime. You are innocent until proven guilty a criminal act is criminal long before pronouncement by a jury. If you rob somebody at gunpoint, did you commit a criminal act then or a year later when a jury says so? Ignoring a subpoena is a criminal act, people fight subpoenas all the time and sometimes win. Ignoring them, like Peter Navarro was a criminal act and he FAFO.
Executive privilege was claimed by Trump. Navarro said he stood by that because of his duty to the presidency and the USA.
Navarro then explained some court or some body said, no, biden gets to decide if you have executive privilege, then Biden said, no, Navarro doesn’t have executive privilege from me, so the deciding entity said, hey, guess what, we don’t deny Trump’s executive privilege (well they did), we over ride it with joey biden !
“show up or else!”
So it is not what you claim, it is a criminal conspiracy by the powers that be, the mab mafia biden demoncrat liars using lawfare and lies and total charades for “judgements”.
O T (from the Department of Rough Justice)
Daily Mail headline today “Democratic Paty Official Shivanthi Sathanandan is left bloodied in violent carjacking and now calls for tougher crime laws after once vowing to dismantle Minneapolis Police Department” [PUBLISHED: 04:13 EDT, 8 September 2023 | UPDATED: 09:38 EDT, 8 September 2023]
The worse part of it all is that he is infecting the minds of future judges
Re: The Left’s view that the disqualification clause of 14A is “self-executing,” i.e., that there need be no further action taken to disqualify Trump from the ballot.
First, that Leftist fantasy is obviously self-contradictory. To enforce that clause does require further action, e.g., by a Leftist, politically motivated secretary of state.
More importantly, that “self-executing” delusion contradicts the fact that the Constitution exists as a whole, as a unity. Cherry-picking elements of it is merely a rationalization to satisfy a desire (in this case, to “get Trump”).
Here are the other elements of the whole Constitution that pertain to this case:
5A: “No person shall [. . .] be deprived of life, liberty, or property, without due process of law.”
6A: The right to a trial by jury.
Trump has a right to run for public office. The public has a right to vote for the candidate of its choosing.
Through it’s “self-executing” delusion, the Left wishes to abrogate those rights, by fast-forwarding to punishment — while ignoring the pesky need for: charges presented, a judge, a jury, witnesses, a defense, the opportunity for an appeal.
In other words: Due process be damned. Trump is a political “criminal.”
That is not the rule of law or of the Constitution. That is rule by scepter.
“It isn’t a “leftist” theory.”
It is an anti-constitutional delusion used by the Left to rationalize removing Trump from the ballot. That makes it a “Leftist theory” (read delusion).
If it’s self-executing, the military should remove Brandon from office.
Brandon’s actions resulted in the Taliban getting American military materiel.
Brandon aided or comforted the Taliban.
Brandon is disqualified under the 14th amendment. (someone elese pointed this out for me)
Why doesn’t the military throw Brandon out of office?
Now i know this is bug face.
The Turley-Tribe feud is reminiscent of the Buckley-Vidal feud of yesteryear (and about as stale) — being comprised of equal parts of self-indulgence, ego, and dishonesty on both sides, if “both sides” are on the left. It’s like a pro wrestling match where both wrestlers are the bad guy and the audience hoots for one or the other simply out of a desire to be a part of the show.
It’s not unreasonable to wonder whether these two are angling for a tedious Buckley-Vidal reenactment during the upcoming 2024 conventions.
When I’m feeling blue, I like to reflect on the fact that neither Tribe nor Garland will ever serve on the Supreme Court, and Hilary will never be President.
Looks like tribe hasn’t changed since the Judge Bork Supreme Court hearings. Thank God he just can’t help himself because if he had kept his mouth shut or been more objective during the Bork hearings he might actually be a sitting Supreme at the moment.
In the distant future I see a Statue of Professor Tribe in front of Harvard with caption that simply reads the 4th lie.
A Republican is a Democrat who got mugged. Off topic but I couldn’t resist:
https://www.foxnews.com/media/dem-party-chairwoman-once-called-defund-police-carjacked-assaulted-minneapolis
Regardless of her politics, I don’t want Ms. Sathanandan to suffer like this, though I might suggest she read Crime And Punishment. BLM and Antifa are saturated with criminality. It’s endemic to hard left movements.
I like the statement “Untroubled by Doubt”. So nice to live a life without doubt. To me that means you are childlike in the worst possible way. Incapable of living a life of true feelings and experience where each and every day there are points of learning that come from experiencing the world as it is and not as we want it. From those experiences we learn newer parameters and new truths that we had never considered before and we evolve over time. None of us can say we are the same as when we were a child because we grew. Professor Tribe comes across as a petulant infant screaming at the world because it pricked his finger and he has yet to understand how that happened in his perfect world (where thorns were never allowed to exist). Even God had doubt.
Doubt makes us uncertain, unsure and thereby willing to recheck ourselves and question ourselves and by doing so we improve and grow also. The key is balancing doubt against being frozen into a set path where no doubt is allowed and one never deviates from the path(usually for the worse)
The intellectual carelessnes of Tribe was revealed in a debate about 30 years ago on PBS between Tribe and Phyliis Schafley (a graduate of Radcliffe, incidenally). They were discussing a clause in the Constitution (which I do not recall). Tribe quoted it incorrectly. Schafley corrected him.
The main question raised by this column is: why was Tribe ever hired by Harvard? Did they want a legal demogogue?
Jonathan – There is a phrase, once used by Israeli Prime Minister Golda Meir to describe Rabbi Meir Kahane, that well fits Lawrence Tribe – Magnificently Insignificant. Yes, his flame throwing rants light up the leftist lunatic fringe, but they’re pretty much always lit up by something or something else. I suspect that most people are tired of, and ignore or discount, much of what is presented as news or information on certain cable networks.
Just because someone on CNN or its sister propaganda channel MSNBC, acts like they are on only very limited leave from Mount Olympus, most Americans ignore their childish rankings.
Leftism destroys high-caliber brains. Why? A high-caliber brain generally has good arguments, but what happens when their ideology (leftism) depends on low-caliber or ignorance? The high-caliber brain cannot defend the desired position, so leftism retreats, or the brain self-destructs.
Tribe is the Fauci of Constitutional Law.
“Tribe is the Fauci of Constitutional Law.”
Excellent analogy!
Just as Fauci feels he is “science,” Tribe feels he is the Constitution. And as the “Superior Ones,” they decree; we bow in submission.
If a doctor takes a hippocratic oath after completing med school, what does a lawyer take after graduating law school?
A hypocritical oath.
Whats the difference between a lawyer and an angry rooster?
The rooster clucks defiance.
Brilliant! I’m gonna steal that one.
“. . . righteous anger than Laurence Tribe.”
Not to pick on JT, but there is nothing “righteous” about Tribe’s *hostility*. (To call his emotional ejaculations “anger” is too generous.)
Tribe is a typical whim-worshipping, emotion-driven academic. His basic approach to constitutional interpretation is: I impose on the Constitution whatever satisfies a Leftist desire. Words, text, counter-arguments, context (i.e., reason) — be damned. His feelings are god. Notice how touchy he gets when asked for an explanation or when presented with a counter-argument.
Tribe’s a petulant child with a Harvard pedigree. Like all spoiled children, when his feelings are not sated, he throws a fit.
“The best lack all conviction while the worst are full of passionate intensity.” Check your watch dear Professor, I don’t think you know what time it is.