When the celebrated Harvard Law Professor Lawrence Lessig wrote a piece for Slate referring to the “murder of brilliant and prominent lawyers” who believe Trump is disqualified under the 14th Amendment, I first thought he was answering the infamous call of Shakespeare’s Dick the Butcher: “The first thing we do, let’s kill all the lawyers.”
But Lessig’s reference to murder was not a clarion call to slaughter attorneys, but a metaphor for a flock of crows, as lawyers and law professors pile on with what Lessig calls “a terrible plan to neutralize Trump that has entranced the legal world.”
The plan was first formulated by two members of the law professoriate, Bruce Ackerman of Yale and Gerard Magliocca of Indiana, who established a standard later picked up by Will Baude of Chicago and Michael Paulsen of St. Thomas, then garnered the redoubtable support of conservative retired judge Michael Luttig, and Laurence Tribe, an iconic voice of liberal legal thinking.
The professors argue that the courts can enforce the constitutional 14th Amendment, Section 3, ratified in 1868 after the Civil War, requires state election officials to keep Trump off the ballot. The amendment flatly provides that if someone took an oath to support the Constitution, and then engaged in a “insurrection or rebellion,” they are barred from public office. A voters’ lawsuit in Colorado has teed up the issue, which inevitably will have to be resolved by the Supreme Court before the election. Minnesota voters filed a similar suit directly with the Minnesota Supreme Court, and voters also brought challenges in Florida and Michigan.
But lawyers love to disagree and sometimes they go wobbly. Stephen Calabresi, a Northwestern law professor, is one of these. Calabresi is the chairman of the arch-conservative Federalist Society, the farm team for conservative judges, which he helped to found.
Calabresi previously endorsed the work of Baude and Paulsen as “a tour de force,” and said flatly that “Trump is ineligible to be on the ballot, and each of the 50 secretaries of state has an obligation to print ballots without his name on them.” Calabresi finds Trump “loathsome,” and urges “my fellow Americans to vote against Trump, almost no matter what is the alternative.”
But then Calabresi switched positions, arguing, “Donald Trump Should Be on the Ballot and Should Lose.”
What turned Calabresi around was an op-ed piece in the Wall Street Journal by former Attorney General Michael Mukasey, who argued that Section 3 of the 14th Amendment does not apply to the president because the president is not “an officer of the United States.” Calabresi should know better.
Mukasey absurdly argues that the term “officer” as used in the text refers only to appointed offcials, not elected ones. Jefferson Davis, prior to the Civil Was, had been an elected (congressman and senator) and appointed (Secretary of War) officer of the United States. Is Mukasey seriously claiming that Jefferson Davis would not have been disqualified from running for president?
This was a position carefully considered and rejected by Baude and Paulsen in their law review article. Akhil Reed Amar of Yale went so far as to say, “This is a genuinely stupid argument.” Article II of the Constitution refers to the “Office” of president nine times.
Indeed, even Donald Trump disagrees with Mukasey. In the New York case involving a hush money payment to a porn star, Trump unsuccessfully sought removal to the federal court. There he alleged he was formerly an “officer of the United States” and cited law permitting federal-officer removal for elected members of Congress, and even cited case law where he himself removed a civil action to federal court as an elected officer of the U.S.
Meanwhile, Lawrence Lessig doesn’t take the Mukasey approach. He gets hung up on the factual issue of whether Trump “engaged in an insurrection or rebellion” against the United States. He does not address the other strand of the prohibition, which disqualifies those who have “given aid and comfort to the enemies” of the Constitution. After all, Trump, with a duty to act, sat around the White House on January 6 for three hours and did nothing to stop the violence at the Capitol, although he had a constitutional duty to do so. If this is not “aid or comfort,” I don’t know what is.
What Trump unleashed fits even the narrowest definition of insurrection. In her opening statement as co-chair of the House Select Committee, Rep. Liz Cheney said that “Trump summoned the mob, assembled the mob and lit the flame of this attack.”
Lessig does not dispute this finding. Indeed, he admits that Trump’s “acts were criminal.” He argues, however, that January 6 was not a “rebellion,” but “an effort to assure what they wrongly believed was a rightful result.” Nonsense. If someone, unleashes a violent mob to try to overturn a proper election, and then helps them accomplish their purpose, that’s insurrection — even if the insurrection does not succeed.
Lessig rightly observes that the Supreme Court, in the final analysis, must decide whether the 14th Amendment disqualifies Trump. He laments that this would force “an already weakened Supreme Court from rightly ruling for Donald Trump in a context that only increases the perception of many that that court is political.” So, he seeks a way out. Under Section 3, Congress can remove the disqualification by a two-thirds vote. He urges that they should do it if for no other reason than to take the Supreme Court off the hook. Fat chance.
So, the “murder” of lawyers flies off in different directions in interpreting the Constitution. Fortunately, what they say doesn’t count. What counts is what the Supreme Court says the law is.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the acclaimed public television talk show and podcast Conversations with Jim Zirin.