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.