Teaching law in the Age of Trump

Yesterday the subject in my seminar on criminal punishment was the potential use of Section 3 of the 14th amendment to disqualify Donald Trump from being a legal candidate for the presidency.

One aspect of this controversy that I don’t think has gotten enough or indeed really any attention is that Section 3 is a quasi-criminal punishment. Candidates for president have to meet four qualifications:

They have to be at least 35 at the time they would take the oath of office.

They have to be native-born citizens of the United States.

They must not have already been elected to the office more than once (or served more than six years as president).

They must not, after having taken an oath to support the Constitution, have engaged in insurrection or rebellion against the United States, or given aid or comfort to the nation’s enemies.

There’s a pretty obvious difference between the last item on this list and the first three. Note that there’s no constitutional prohibition against convicted felons, or imprisoned persons, or even insurrectionists in general running for president — only against insurrectionists who violated a previous formal legal commitment not to, among other things, engage in insurrection.

This seems, one would think, like an extremely lax standard, but it’s not one that the man who is going to be one of the two real candidates for president in 2024 can meet.

One thing I asked the students in the seminar — all of whom are scheduled to graduate from law school in May, and are likely to become licensed attorneys a few months later — to consider is: what are the implications for the American legal system that one of the two major party candidates for president this year is someone who tried to overthrow the government, after he refused to accept the fact that he had lost the previous presidential election?

I emphasized that neither of these propositions — that Donald Trump lost the 2020 presidential election, and that he subsequently attempted a self-coup, or more precisely an autogolpe (Latin American politics and their related terminology are becoming more relevant in el gabacho every day) — are open to any legitimate empirical dispute. They are simply sociological facts, no different from or more contestable than the fact that Denver is the capital of Colorado.

Given those facts, was it not, I suggested, a kind of fundamental crisis of legitimacy for the entire legal system that we are in our present circumstances? I asked them to consider how utterly extraordinary the historical turn has been that has made Section 3 of the 14th amendment, of all things, the single most important clause of the Constitution at this legal-historical moment. I noted the grim irony of the claim made by those who object to using that clause to disqualify Trump that the clause is too “obscure” of a legal rule for such purposes. The rule is obscure, of course, because in order for it to become suddenly relevant in the way it has become suddenly relevant two things would have to happen:

(1) A president of the United States would have to engage in insurrection against the United States; AND

(2) AFTER having tried to overthrow the government from which he had just been removed via an election, this former president would become the presidential candidate of one of the nation’s two major parties in the next presidential election.

One would hope, I suggested to them, that a legal rule intended to deal with such a circumstance would be pretty obscure, as opposed to something that lawyers had to deal with on a routine basis.

What I wanted them to think about is how this circumstance marks something far outside the field of ordinary politics and law, because it represents the most fundamental possible attack on the legitimacy of the system itself. It represents a rejection of that system on its face, since electing someone president who previously tried to overthrow the government while he was president is, in effect, subsequently overthrowing the government by legal or pseudo-legal means. (“Pseudo-legal” is what makes Section 3 come in to play).

Which, I suggested to them, means among other things that it’s certainly a particularly interesting time to become a lawyer in the United States.

I also suggested to them that it was extremely difficult to talk in a straightforward way about all this in a law school classroom, because normally law school classes are not equipped to discuss whether the legal system students are being prepared to enter is actually on the verge of or in the process of collapse.

That is the terrible secret that’s right out in the open, that can’t be talked about, because we don’t talk about those kinds of things, because they are too terrible and too disturbing to talk about.