Tag Archives: Donald Trump
Look Away: How the Supreme Court Could Set Aside Trump’s Disqualification for Insurrection under the Fourteenth Amendment

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, argues that the U.S. Supreme Court should uphold the decisions of the Colorado and Maine courts that disqualified Donald Trump from running for President under Section 3 of the 14th Amendment based on his role in the January 6, 2021 attack on the U.S. Capitol. Mr. Falvy identifies several ways that the Court could rationalize putting Trump back on the ballot and explains the legal and consequential problems with each. In particular, Mr. Falvy criticizes the superficially appealing “let the people decide” line of thought, pointing out that it is actually highly undemocratic and dangerous; indeed, such dictators as Louis-Napoléon Bonaparte in France, Adolf Hitler in Germany, and Hugo Chavez in Venezuela, each launched a failed coup d’état, endured a short stint in jail, and returned to win power through elections.

Rebel Yell: Why a Civil War Amendment Has Donald Trump Fighting to Keep His Name on the Presidential Ballot

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, examines the constitutional and political implications of a Colorado Supreme Court ruling that disqualified Donald Trump from running for president in 2024, based on his involvement in the January 6, 2021 attack on the U.S. Capitol. Mr. Falvy discusses the legal and factual issues that the U.S. Supreme Court will have to resolve in the case, and the potential impact of its decision on the country's future.

Trump and House Republicans’ Heads-I-Win-Tails-You-Lose View of Impeachment

Cornell Law professor Michael C. Dorf discusses Republicans’ political manipulation of the impeachment process, particularly in the context of Donald Trump’s flawed immunity claims and House Republicans’ baseless impeachment investigations against President Joe Biden and Homeland Security Secretary Alejandro Mayorkas. Professor Dorf emphasizes that impeachment should be grounded in actual high crimes and misdemeanors, not political disagreements or policy choices.

The Incredible, Inconsistent, Incoherent Legal Arguments About Presidential Immunity Made by Donald Trump’s Lawyer

Amherst professor Austin Sarat argues that in Tuesday’s oral argument before the U.S. Court of Appeals for the D.C. Circuit, Donald Trump’s lawyer, John Sauer, contorted the Constitution’s language to claim presidents have absolute immunity from criminal prosecution for official acts, despite Trump’s impeachment lawyers previously stating presidents could face prosecution once leaving office. Professor Sarat points out that the appeals court judges appeared unconvinced by Sauer’s arguments, questioning how his broad immunity claim aligns with constitutional checks on presidential power.

This Is a Good Time to Revisit Mitch McConnell’s Jurisprudence and Thoughts About Presidential Immunity

Amherst professor Austin Sarat discusses how Special Counsel Jack Smith’s recent filing regarding Donald Trump’s claim of presidential immunity is grounded in arguments previously made by Republican Senator Mitch McConnell. McConnell, on the Senate floor in 2021, recognized Trump’s moral and practical responsibility for the January 6 events, pointed out that impeachment is not the only avenue for accountability, and acknowledged that Trump, as a private citizen, could be subject to criminal and civil litigation for his actions while in office.

Another Bad Argument Against the Application of Section 3 of the Fourteenth Amendment to President Trump: Part Two of a Two-Part Series

In this second of a series of columns, UC Davis Law professor Vikram David Amar responds to arguments against disqualifying Donald Trump from presidential election ballots under Section 3 of the Fourteenth Amendment, focusing on Ross Douthat’s assertion in a New York Times essay that such disqualification is antidemocratic. Professor Amar argues that enforcing constitutional provisions, including Section 3, is not antidemocratic as it reflects the will of the people, and he emphasizes that the real question is whether the requirements of Section 3 have been met in Trump’s case.

Bad Arguments Against the Application of Section 3 of the Fourteenth Amendment Against President Trump: Part One of a Two-Part Series

UC Davis Law professor Vikram David Amar points out flaws in Professor Larry Lessig’s argument in Slate regarding the inapplicability of Section 3 of the 14th Amendment to Donald Trump, emphasizing that the presidency is indeed an “office under the United States” and therefore covered by Section 3. Professor Amar highlights Professor Lessig’s failure to address this key point and questions why Professor Lessig’s essay overlooks the fact that federal legislators are not considered officers under the United States, a crucial distinction in constitutional law.

A Holiday Guide to Donald Trump’s Latest Cases at the Supreme Court

Cornell Law professor Michael C. Dorf points out that the U.S. Supreme Court faces critical decisions in two cases involving former President Donald Trump: one regarding his claim of absolute immunity against charges for his role in attempting to overturn the 2020 election, and the other concerning his eligibility for the Presidency under Section 3 of the Fourteenth Amendment. Professor Dorf argues that despite Trump’s legal team arguing for more time due to the complexity of the immunity case, the Court should expedite its review in both cases, given the urgency of presidential primaries and the weak nature of Trump’s claims, especially against the well-founded argument that he is ineligible under the Fourteenth Amendment due to insurrectionist activities.

Courts Need to Quickly Dispose of New Attempts to Legitimize the Imperial Presidency

Amherst professor Austin Sarat discusses former President Donald Trump’s expansive interpretation of presidential power, particularly his claim of immunity from criminal prosecution and civil liability for actions taken while in office. Trump’s views, which have been rejected by lower courts, are seen as an extreme version of the “Imperial Presidency” concept warned about by historian Arthur Schlesinger. Professor Sarat argues that courts should expedite and reject Trump’s appeals on these grounds, as granting such sweeping immunity claims would be disastrous for American democracy and the rule of law.

This Is Why I Have Faith in the Future of the United States Despite the Ill Winds of Fascism and Christian Nationalism

University of Pennsylvania professor Marci A. Hamilton argues that the United States faces two significant threats: Donald Trump, whom she describes as a fascist with dictatorial aspirations, and a right-wing evangelical-fundamentalist Catholic axis intent on a theocratic takeover, both of which undermine democracy and civil rights. Professor Hamilton emphasizes that these threats are bolstered by historical distortions and a disregard for the Constitution, yet she expresses hope in the public’s rejection of this authoritarianism, as evidenced by reactions to the Dobbs v. Jackson Women’s Health Organization decision and the preservation of abortion rights in conservative states.

Donald Trump’s Legal Strategy Draws its Inspiration from the 1969 Trial of the Chicago Seven

Amherst professor Austin Sarat argues that former President Donald Trump’s approach in his legal battles mirrors the tactics used by the defendants in the Chicago Seven trial, aiming to turn his trials into political theater and mock the legal process. Professor Sarat argues that Trump’s behavior, including his motion to televise proceedings and accusations against the legal system, are his attempt to subvert judicial proceedings and portray himself as a victim of political persecution, similar to the disruptive and publicity-focused strategies of the Chicago Seven.

Four Key Takeaways From Trump’s Civil Fraud Testimony Monday

Former federal prosecutor Dennis Aftergut argues that former President Trump’s courtroom behavior in the civil fraud case in New York, marked by attacks on judicial figures and the legal process, indicates his anticipation of a lost case and a strategy focused on delay through appeals and political posturing to his base. Furthermore, Mr. Aftergut suggests that Trump’s tactics on the stand, which include deflecting blame and refusing to answer questions directly, aim to serve his political narrative rather than address the substantive legal claims against him.

In More Bad News for American Democracy, Americans Are Divided Over Who Is a Better Custodian of Democratic Values

Amherst professor Austin Sarat comments on recent polls suggesting a competitive potential election between former President Trump and current President Biden, with Trump leading in several key battleground states. Professor Sarat warns of the risk to American democracy, suggesting that President Biden needs to effectively counteract former President Trump’s narrative to emerge as the genuine defender of democratic values.

Why Donald Trump’s Bad Week Matters in the Ongoing Battle to Save American Democracy

Amherst professor Austin Sarat describes a series of recent setbacks for former President Donald Trump, both legally and politically: key legal figures like Sidney Powell and Kenneth Chesebro pled guilty and agreed to be cooperating witnesses in a Georgia RICO case against him, while his political endorsements and foreign policy comments have been met with criticism from both Republican opponents and his own base. Professor Sarat concludes that this bad week for Trump was a good week for democracy and the rule of law in the United States.

How Those Seeking Donald Trump’s Disqualification From Running For President Will Plunge the Election Into Chaos and Hand Trump the Presidency

Criminal defense attorney Jon May critiques an argument by Harvard Professor Emeritus Laurence Tribe and Judge Michael Luttig that Donald Trump is automatically disqualified from running for President again under Section 3 of the 14th Amendment, even without a conviction for insurrection. Mr. May contends that such a reading of Section 3 could lead to political chaos and civil unrest, and argues that the U.S. Supreme Court, which has the ultimate say, may not endorse a self-executing interpretation that could have such far-reaching and divisive consequences.

What the First Guilty Plea in Trump’s Georgia Prosecution Tells Us About DA Willis’s Strategy

Former federal prosecutor Dennis Aftergut discusses Fulton County District Attorney Fani Willis’s legal strategy in her case against Donald Trump and various co-defendants for an alleged conspiracy to overturn the 2020 election. Mr. Aftergut observes that Willis seems to be focusing on securing guilty pleas from less central co-conspirators to strengthen her case against major defendants like Trump, Rudolph Giuliani, and Sidney Powell, while potentially offering lesser charges to those willing to cooperate and testify, thereby avoiding the risk of revealing too much of her case before a full trial.

Special Counsel Jack Smith Calls Out Trump’s Use of Free Speech to Bully and Intimidate His Opponents

Amherst professor Austin Sarat argues that Donald Trump has weaponized free speech to undermine American democracy and legal institutions, posing a complex challenge for the judicial system and society at large. Professor Sarat emphasizes the importance of a pending legal motion for a gag order against Trump, arguing that it could be a critical step in countering the destructive effects of his inflammatory speech on the legal process and public trust.

Two Decades After 9/11, It’s Looking Like American Democracy Won’t Survive the 2024 Election

Amherst professor Austin Sarat argues that American democracy is at a critical juncture, facing existential threats in the lead-up to the 2024 presidential election. Professor Sarat contends that Donald Trump and his supporters are sowing distrust in the electoral system by labeling legal actions against Trump as “election interference,” a strategy that is dividing public opinion and undermining faith in democratic institutions, potentially leading to dire consequences for the future of American democracy regardless of the 2024 election outcome.

Those Who Downplay Bigotry and Extremism Enable Bigotry and Extremism

Law professor and economist Neil H. Buchanan argues that mainstream media’s self-reckoning after the 2016 U.S. presidential election led to an overcompensation, which gave platforms to conservative “outside voices” that did not authentically represent the “Real America” they claimed to understand. Professor Buchanan criticizes this overcompensation for leading to an uncritical amplification of narratives like Gary Abernathy’s, which justify and perpetuate the divisive and false beliefs held by Trump supporters, while failing to meaningfully engage with the deeper issues.

Trump’s Republican Allies Plan to Misuse the Power of the Purse to Protect Him

Amherst professor Austin Sarat criticizes efforts by some Republicans to use the power of the purse to protect former President Donald Trump from criminal prosecutions. Professor Sarat argues that such actions are not only an abuse of power but also potentially unconstitutional, undermining the separation of powers and echoing historic misuses of legislative authority.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at the University of... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is Dwight D. Opperman Professor of Law and Director of the Center of Labor and... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more