This week, CNN’s “Erin Burnett OutFront” featured Harvard law professor Laurence Tribe, who offered his usual support to Democrats in their unconstitutional efforts while dismissing opposing views as “nonsense.” I was targeted during this segment because I expressed a different legal opinion than Tribe. It’s worth noting that being attacked by Tribe is not a significant distinction, as he has a history of making vulgar and juvenile attacks on others. Tribe has called figures like Mitch McConnell “McTurtle” and “flagrant d**khead,” attacked former Attorney General Bill Barr’s religion, and referred to Trump as a “Dick” or “dickhead in chief.” He often disregards constitutional law and tradition in favor of his own agenda. Tribe has advocated for packing the Supreme Court and supported debunked conspiracy theories, such as accusing Barr of shooting protesters in Lafayette Park with rubber bullets to stage a photo op, which was proven false. Despite his inaccurate conspiracy theories, Tribe remains a go-to academic for Democratic leaders who need a facade of constitutional legitimacy. I have always disagreed with Tribe’s convenient interpretations of the Constitution. We clashed during Bill Clinton’s impeachment when Tribe argued that lying under oath was not an impeachable offense. Despite evidence of perjury, Tribe assured Democrats that it did not meet the constitutional standard for impeachment. However, Tribe later claimed that Trump’s call with Ukraine was undeniably impeachable, even going as far as accusing Trump of treason and attempted murder of Vice President Mike Pence on January 6, 2021. Tribe’s appeal lies in his unwavering certainty, as he always seems to find a constitutional justification for Democrats’ desired actions, from court packing to unilateral executive action. For instance, Tribe assured President Biden that student loan forgiveness was legal, despite former Speaker Nancy Pelosi acknowledging its unconstitutionality. The Supreme Court later ruled it as such. Tribe also supported Biden’s national eviction moratorium, even though Biden’s own lawyers deemed it unconstitutional. Pelosi’s advice to Biden was to consult Tribe, who assured him of his authority to act alone. Once again, it was deemed unconstitutional. Tribe has even defended clearly unconstitutional Democratic laws, such as a law in California that would have required presidential candidates to disclose tax records to appear on state ballots. Tribe hailed it as constitutional despite obvious objections from law professors, but it was unanimously struck down by the California Supreme Court. Tribe’s latest attack on me stems from his support for a new interpretation of the 14th Amendment that would allow state officials to bar Trump from running in the 2024 election. Democrats argue that this is necessary to “protect democracy” by blocking a democratic vote. They claim that the 14th Amendment prohibits Trump from running because he supported an “insurrection or rebellion.” They argue that this clause could also block 120 Republicans in Congress from running for office. I have long rejected this theory, as it goes against the text and history of the 14th Amendment. Even figures like Georgia Secretary of State Brad Raffensperger, who was wrongly attacked by Trump, have denounced this theory as dangerous and incorrect. Tribe became agitated during his CNN interview when I pointed out that this theory lacks a limiting principle and could potentially lead to courts banning candidates based on their interpretation of riots as insurrections. I noted that the 14th Amendment was ratified after an actual rebellion where many lives were lost, but Tribe dismissed this as “nonsense,” citing the deaths that occurred at the Capitol during the January 6 insurrection. My point was not to count the casualties but to highlight the absence of any charge of rebellion or insurrection against Trump. He has not even been charged with incitement, despite the two indictments filed by Special Counsel Jack Smith. The 14th Amendment theory is a perfect fit for this era of rage, and Tribe, once again, has provided the fuel for this rage-filled analysis. In times like these, the merits of an argument matter little. You can be wrong as long as you are outrageously and self-righteously wrong. Jonathan Turley is an attorney and professor at George Washington University Law School.
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