"Would the American public stand for [Trump using a tricky path to a third term]?"

"It would obviously be an attempt to technically circumvent the prohibitions of the 22nd Amendment. But you know that's what lawyers do all the time. Democrats and Republicans. You always try to find loopholes in in the law. Religious authorities do that. Secular authorities do that. Certainly,  constitutional lawyers do that all the time. For example, when the Supreme Court was about to write its decision saying you couldn't use race-specific affirmative action to give benefit to black applicants over white applicants, Larry Tribe issued a bunch of tweets and stuff figuring out how to circumvent that, how to get around that.... Would the American public stand for it if they felt that, yeah, we'd like Trump, yeah, we'd vote for him, we think he's probably the best president, but you know the framers of the 22nd amendment, when they said you can't be elected to the third term, I think they really meant you can't serve the third term but they didn't say it but they didn't say it um so it depends what is is and it depends what elect it is, and these are very very technical arguments but, hey, I'm a constitutional lawyer, I'm a law professor.... " 

"In a political environment like this, you throw at the wall whatever you can."

"This is a political rather than a legal struggle.... It would succeed only in a different environment than we have.... The real question is what political message is being sent."

Said lawprof Laurence Tribe, quoted in "Can He Do That? Here’s What Biden’s Move on the Equal Rights Amendment Means. Presidents have no direct role in approving constitutional amendments. So what could President Biden’s pronouncement recognizing a new one actually do?" (NYT).

From the article: "Proponents of the Equal Rights Amendment have long made it clear that their strategy is primarily a political, not a legal one. Their goal is to dare Republicans to challenge the legitimacy of sex equality, and of moving to nullify something as simple as equal rights for women."

I don't think Biden even purported to "do" anything. He merely stated his legal opinion. Given the well-known deterioration of his mental capacity, who cares what he thinks?

Anyway, as you endeavor to maintain your own mental sharpness, take note of what's happening in the twilight between law and politics.

AND: Tribe's line "you throw at the wall whatever you can" seems to relate to the old expression "throw spaghetti at the wall and see what sticks." How did that get started? Grok tells me about a 1946 cookbook callled "You Can Cook If You Can Read." It says you can test whether spaghetti is done by throwing it against the wall. I don't know if that's the origin of the expression. I always think of Walter Matthau throwing the spaghetti linguini against the wall in "The Odd Couple":

PLUS: I don't know if this is less or more amusing, but a colleague just sent me a link to "The ERA Is Now Law!" by Professor Tribe in — of all places — The Falls Church News-Press. It's also at that new website The Contrarian, with a different title: "The Equal Rights Amendment at Long Last/Thanks to President Biden, the Constitution will finally guarantee equality for all."

My colleague thinks Tribe is contradicting himself: first, Tribe said it was law, and then Tribe said it was politics. My response is that saying it's law is doing politics. You decide: Is it spaghetti, linguini, or garbage?

But election denial is reprehensible, no?

Saying Trump is on trial for paying hush money to a porn star is like saying John Wilkes Booth was tried for sneaking up behind Lincoln in Ford’s Theater. Silencing Stormy was just the means Trump used to commit the crime of fraudulently killing Hillary’s 2016 presidential bid.

— Laurence Tribe 🇺🇦 ⚖️ (@tribelaw) April 12, 2024

"Liberals can and should criticize the mistakes of conservative decisions. That is a necessary step toward reversing them..."

"... when liberals have a majority on the Court again. But they should not indulge in hyperbolic criticism that undermines the very institution over which they should be trying to regain control."

Writes Noah Feldman, in "The Court’s Conservative Constitutional Revolution/The bloc of conservative justices on the Supreme Court have dismantled many of the legal precedents on their hit list. What’s in store for the new term?" (NYRB).

"I believe that what can be achieved on Jan. 6 is not simply to keep Biden below 270 electoral votes. It seems feasible that the vote count can be conducted so that at no point will Trump be behind in the electoral vote count..."

"... unless and until Biden can obtain a favorable decision from the Supreme Court upholding the Electoral Count Act as constitutional, or otherwise recognizing the power of Congress (and not the president of the Senate) to count the votes."

Wrote Kenneth Chesebro — AKA Co-Conspirator 5 — in a newly revealed memo, quoted in "Previously Secret Memo Laid Out Strategy for Trump to Overturn Biden’s Win/The House Jan. 6 committee’s investigation did not uncover the memo, whose existence first came to light in last week’s indictment" (NYT).

Sarcasm on top of sarcasm.

Here’s Roseanne Barr saying the Holocaust never happened but should’ve because “Jews cause all the world’s problems,” so 6M of us shd be killed! Is that a “true threat” as SCOTUS defined it today in Counterman v. Colorado? Maybe not but It comes close!https://t.co/FOWHtLpUFp

— Laurence Tribe 🇺🇦 ⚖️ (@tribelaw) June 27, 2023

Context:

"I noticed my number of followers drop for the first time in a couple weeks right after Trump‘s return was announced.

"My advice: If you’re following me, don’t depart Twitter, thus diminishing my reach; just don’t pay attention to Trump!"

Laurence Tribe tweets.

This is a problem with trying to protest Musk and Trump. You cause your side to lose clout on Twitter.

Tribe has 1.3 million followers right now on Twitter. That's a strong reach, and it must hurt to see his following ebb.

He's also got this pinned tweet from 13 hours ago:

"In past columns, we have discussed the litany of 'slam dunk' crimes that Harvard Law professor Laurence Tribe has declared as established against former President Donald Trump..."

"This week, Tribe insisted... that Trump yet again is facing a 'slam dunk' criminal conviction over the raid on Mar-a-Lago.... Just last month, Tribe declared Trump clearly guilty of the attempted murder of Vice President Mike Pence on January 6, 2021. Tribe again insisted that the case could be prosecuted 'without any doubt, beyond a reasonable doubt, beyond any doubt, and the crimes are obvious.' I guess there is no doubt. There is also no compelling legal basis for the claim. Nevertheless, Tribe promised more if needed: 'There are other crimes that have been proven. Those are plenty to start with.' It is a curious thing that none of these prior 'proven' crimes have been charged...."

Writes Jonathan Turley.

High-level cogitation.

in that not-implausible alternate universe in which Gore won the Presidency, Laurence Tribe is a Supreme Court Justice, & D. T***p never got out of bankruptcy court, what would we be fretting about today, Aug. 14, 2022? https://t.co/MPM7ociDTE

— Joyce Carol Oates (@JoyceCarolOates) August 14, 2022

Tribe's link goes to the latest Maureen Dowd column. It's kind of funny to be railing against Trump for making lemonade out of the lemons his enemies foisted on him. Joyce Carol Oates's alternate universe is more amusing, even though comparing what is to what might have been is always a hotbed of delusion.

"[J.D.] Vance went on Steve Bannon’s War Room and said 'I gotta be honest with you, I don’t really care what happens to Ukraine one way or another' during a clumsy attempt..."

"... to show that his real priority is the U.S.-Mexico border and stopping shipments of fentanyl. He then kind of, sort of, walked back his statements a few days later. But then he cashed in one of infinite invitations to go on Tucker Carlson’s show to un-walk back the walk-back. The banner on his campaign webpage features the following fundraising appeal: 'Secure our Southern Border and NOT Ukraine’s Border! Stand with Tucker Carlson and JD Vance.' In other words: J.D. Vance is gonna J.D. Vance. It’s what he does."

From "J.D. Vance Gets Canceled/Can’t a Republican Senate candidate make one little crack about not caring about Ukraine?" (The Bulwark).

ADDED: Vance went to Yale Law School. He wrote that highly acclaimed memoir. Then why does he come across as so dumb when he's doing politics? I have a theory that I came up with to try to understand some of the really dumb things Laurence Tribe tweets. It's that a person who is too far above the normal range has trouble thinking of how to speak to people of normal intelligence, that is, the people he needs to reach in order to be successful in politics. He knows they're significantly less intelligent than he is, and he adopts a style that he imagines to be at their level. But he goes too far. He knows other people are — comparatively — dumb, but he overshoots the mark. Those whose intelligence is just modestly above average are shooting from a closer range and can hit the target more accurately. That's very annoying to the truly superior folks. That's why — I think — Trump drove Tribe absolutely stark raving mad. And stark raving madness doesn't improve your aim!

"My own view is that the biggest brains wouldn't be in the legal profession to start with."

Writes Balfegor, in the comments to the previous post, where I'd said, "But what if we could find the 9 biggest brains in the law field and make a Supreme Court out of them? We might discover they make terrible Justices."

I wrote "biggest brains in the law field" because I thought being in the law field would be a basic qualification to get started on the job, but I wrote that thinking these are not the biggest of the big brains.

That made me think about Laurence Tribe, the noted Harvard professor:

"Unfortunately Breyer’s book... is not a thoughtful exploration of the virtues and vices of well-meaning deception."

"In his stubborn avowal that the Court... remains an apolitical body, he perpetuates a lie that is anything but noble. I have written much that is entirely positive about his judicial opinions, so it pains me to say that his book reads as though it had been written by someone oddly unaware of the implausibility of its factual claims. Invoking Cicero, Breyer opens by noting that legal obedience, the kind a society needs if it is not to descend into chaos and what Tennyson called the law of 'tooth and claw,' requires either fear of punishment, hope of reward, or belief that the law is just even when it doesn’t deliver what you hope for. The central thesis of his book is that the reason Americans have over time abided by the Supreme Court’s interpretations of the law.... is that they have accepted the view that the justices are not acting 'politically.'... [H]e is content to express his belief that 'jurisprudential differences, not political ones, account for most, perhaps almost all, of judicial disagreements'—even while conceding that 'it is sometimes difficult to separate what counts as a jurisprudential view from what counts as political philosophy, which, in turn, can shape views of policy.' What accounts for these so-called jurisprudential differences? To what degree are they mere window dressing, attached after the fact to conclusions consciously or unconsciously reached on other grounds?"

Writes Laurence Tribe in "Politicians in Robes/Why does Stephen Breyer continue to insist that the Supreme Court is apolitical?" (NYRB).

"Like Judge [Ketanji Brown] Jackson, Justice [Leondra] Kruger has a dazzling résumé.... The main differences are that she’s younger and..."

"... likely to be more moderate on SCOTUS than Judge Jackson, at least based on her record on the California Supreme Court, where she has sided with Republican appointees more often than her fellow Democratic appointees. Some observers also see Justice Kruger as 'intellectually stronger' or boasting more 'intellectual firepower' than Judge Jackson. [UPDATE (3:06 p.m.): For some important clarification of the preceding sentence, please see my Twitter thread.] The youth and moderation cut both ways. Yes, the Biden Administration favors young nominees. But on the other hand, Justice Kruger is young enough that she’ll be a viable SCOTUS pick for another five to ten years, so she could be 'saved' for a future vacancy (just as Justice Barrett was passed over for Justice Anthony M. Kennedy’s seat so she could be “saved” for Justice Ginsburg’s). The moderation makes Justice Kruger easier to confirm, which is useful in a closely divided Senate. But on the other hand, it has made some on the left somewhat cautious about or even opposed to her."

Writes David Lat at "Handicapping President Biden's Supreme Court Shortlist/Here are my odds on the leading contenders—and some interesting historical analysis" (Original Jurisdiction). Lat gives Jackson a 40% chance of getting the nomination and Kruger a 30% chance.

I prefer moderate Justices, so I hope it's Kruger. And I would add 2 things: 

"I’m old enough to remember when it was a bad thing for presidents to knowingly and blatantly violate their oath to uphold and protect the Constitution of the United States."

"I’m even old enough to remember a time — lo these seven months ago! — when the left responded to such maneuvers with horror, rather than egging them on."

Writes Megan McArdle in "Opinion: What the left doesn’t want to face about the eviction moratorium" (WaPo). 

I agree that Presidents of both parties ought to be judged by the same standard when they take a challenging legal position, but we need to be consistent in when we're going to say they have "knowingly and blatantly violate[d] their oath." 

I read in The Washington Post that Professor Larry Tribe advised the President that the new moratorium would be constitutional. If Biden sincerely believes that — or embraces it with whatever feeling a politician has in the place in heart where ordinary people experience sincere belief — should we denounce him for knowingly and blatantly violating the Constitution? 

McArdle proceeds to argue (persuasively) that the moratorium is bad policy. But bad policy doesn't make it a blatant constitutional violation. And yet, even as the desire to adopt the policy is what led Biden to take a challenging constitutional position, recognition that the policy is bad could lead people who don't really care about constitutional limits to back off from that position. 

But I don't even trust Biden to choose the best policy or even to believe he is choosing the best policy! It's political maneuvering, and I presume that he not only expects the courts to strike it down, he wants that outcome.

"After White House legal advisers found he could not extend a national eviction moratorium, President Biden told Chief of Staff Ron Klain to seek the advice of Harvard law professor emeritus Laurence Tribe..."

"Tribe suggested to Klain and White House Counsel Dana Remus that the administration could impose a new and different moratorium, rather than try to extend the existing ban in potential defiance of a warning from Supreme Court Justice Brett M. Kavanaugh, the person said.... Biden, who served as the top Democrat on the Senate Judiciary Committee, has known Tribe since the 1980s and frequently seeks his legal advice.... On Monday, Sperling told reporters there was no possible legal avenue for either extending the existing moratorium or enacting a new, more targeted eviction ban.... The next day, the administration reversed itself and said it had found a legal basis for the move — even as Biden publicly expressed doubt about the legality of his administration’s actions. 'The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster,' Biden told reporters, citing conversations with legal experts. 'There are several key scholars who think that it may, and it’s worth the effort.' A White House spokeswoman did not provide the names of other scholars the administration depended on to justify the ban."

From "Biden told White House chief to seek Harvard legal scholar’s guidance, leading to reversal on evictions/Ron Klain consulted with Laurence Tribe about the legality of a new eviction moratorium, helping to bring about a dramatic White House pivot" (WaPo).

Yesterday in Wisconsin...

Looks a lot like first-degree murder to me. https://t.co/qJJJVTr0yS

— Laurence Tribe (@tribelaw) August 24, 2020

Oh nothing but Kenosha Police shooting an unarmed man in the back seven times for ignoring commands, when they could have used a taser. Maybe he was a serial killer? Deaf? Mentally ill? We'll never know. Nah, just a black man.
Also, FU @KenoshaPolice pic.twitter.com/id1z5c5nBx

— Covfefe "Shecky" Jones- King Of Shade👑 FBR 🌊🌊 (@King_Of_Shade) August 24, 2020

ADDED:

BLM arson attacks overnight in Kenosha, Wisc. spread to the Bradford Community Church, a far-left universalist religious organization. The church’s sign in support of #BlackLivesMatter was consumed in flames. pic.twitter.com/u02CIwsnIm

— Andy Ngô (@MrAndyNgo) August 24, 2020

UPDATE: Professor Tribe deleted his tweet, but you can still see what the text of it was: "Looks a lot like first-degree murder to me."

I don't know all the reasons why Tribe chose to delete, but I assume one of them is that the man who was shot — Jacob Blake — hasn't died.

From the NYT article about the shooting (that went up at 6:26 p.m. EDT):

"Supreme Court unanimously reverses 'Bridgegate' convictions."

Fox News reports:

The court recognized that the lane closures, known commonly as "Bridgegate," were done as political payback against the mayor of Fort Lee, N.J. for not supporting the reelection campaign of then-Governor Chris Christie. The problem, the court pointed out, is that this is not a violation of the statutes under which the defendants were charged.

"The question presented is whether the defendants committed property fraud. The evidence the jury heard no doubt shows wrongdoing—deception, corruption, abuse of power," Justice Elena Kagan wrote in the court's unanimous opinion. "But the federal fraud statutes at issue do not criminalize all such conduct."

ADDED: Here's the opinion — Kelly v. United States.

AND: An excerpt from the opinion:

Federal prosecutors may not use property fraud statutes to “set[ ] standards of disclosure and good government for local and state officials.”... Much of governance involves (as it did here) regulatory choice. If U. S. Attorneys could prosecute as property fraud every lie a state or local official tells in making such a decision, the result would be... “a sweeping expansion of federal criminal jurisdiction.”... In effect, the Federal Government could use the criminal law to enforce (its view of ) integrity in broad swaths of state and local policymaking. The property fraud statutes do not countenance that outcome. They do not “proscribe[] schemes to defraud citizens of their intangible rights to honest and impartial government.”... They bar only schemes for obtaining property....

[N]ot every corrupt act by state or local officials is a federal crime. Because the scheme here did not aim to obtain money or property, Baroni and Kelly could not have violated the federal-program fraud or wire fraud laws....

ALSO: Professor Tribe reacts on Twitter: "Congress: let’s amend those statutes!"

That is, he wants the federal prosecutors to be able — in Kagan's words — to "use the criminal law to enforce (its view of ) integrity in broad swaths of state and local policymaking."

"Imagine looking out at a class full of Schiffs."

I say out loud as I'm overhearing MSNBC where somebody's interviewing Laurence Tribe and saying "Adam Schiff was a student of yours."

At Twitter juxtaposition... is that "drink some water" advice pure chance?

"See? They're so desperate. They're like 'Oh, no! Nobody cares!'"

I say out loud when I click on the link Meade just messaged me from across the room: "Why care about the Trump impeachment? Your right to vote in free elections is at stake/The Trump impeachment is about protecting our freedom and right to vote from lawless foreign election manipulation invited by a dangerous president" by Laurence Tribe (USA Today)

Meade: "That demonstrates where the Democrats are: They've worked themselves into a real fear that if Trump is re-elected, there's going to be a dictatorship."

Me: "They don't really believe that. You think Tribe believes that?"

Meade: "Yes. And it comes down to the right to vote: We will lose our right to vote."

Me: "That's just how they scare the little people."

Meade tells me the real reason he sent me that link is because, earlier this morning, I made fun of a NYT columnist who wrote that he would "bet you dollars to doughnuts" that people will not be thinking about the impeachment when we get to Election Day. The columnist, Michael Tomasky, isn't that old. "He's 59," I said, "I'm going to assume he's adopting a cornball, folksy style because he knows it's a con."

In that light, Meade wanted me to see the same thing going on in Laurence Tribe's prose:

In principle, we care about the Constitution. In practice, not so much. The question is why citizens ought to consider this situation with unique seriousness while so many other daily concerns — raising a family, going to college, paying for health care — feel so much more pressing. The answer is one the Democrats urging the impeachment and removal of this president have a unique obligation to provide if they — all right, I’ll say it: we — are to succeed in our goal of protecting the Constitution from a president who doesn’t give two hoots about it, much less understand a word of it.

Two hoots is the dollars to doughnuts, here. It's a tell, in my book. But Tribe is 2 decades older than Tomasky, so he might come about the cornball, folksy style honestly. Also, "doesn’t give two hoots" is the most ordinary way to clean up "doesn’t give a fuck" or "doesn’t give a shit," so it doesn't show the same strain as "dollars to doughnuts."

I'll just end this by saying that I'll bet you bitcoin to cronuts that the vast majority of Americans don't give a fucking shit about lectures from lawprofs.