Constitutional law scholar breaks down how Trump lawyer 'completely misused' his work in coup memo

Legal scholar and Harvard University Professor Emeritus Laurence Tribe on Tuesday detailed how a lawyer for Donald Trump “completely misused” and “grossly [misrepresented]” his work in a memorandum purporting to proved a legal framework for the former president’s efforts to overturn the results of the 2020 presidential election.

Trump last week was indicted on four felony counts related to those efforts.

Tribe’s breakdown of the Nov. 18, 2020 Memorandum, written by attorney Kenneth Chesebro (or “co-conspirator 5,” according to special counsel Jack Smith), was published in Just Security one day before the New York Times revealed the existence of a Dec. 6, 2020 internal campaign memo that Department of Justice prosecutors “are portraying as a crucial link in how the Trump team’s efforts evolved into a criminal conspiracy.”

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The Nov. 18 memo, entitled “The Real Deadline for Settling a State’s Electoral Votes,” is the first in a series of documents that the special counsel laid out in his indictment of Trump, and, Tribe claims, “ relied on a gross misrepresentation” of the constitutional scholar’s work.

“As the title of the November 18 Memorandum indicates, Chesebro focuses on what he considers the ‘real deadline’ under the federal scheme for presidential election,” Tribe wrote. “In the body of the Memorandum, [Chesebro] quotes me completely out of context.”

The constitutional law professor claims Chesebro’s memo “grossly misrepresents what I wrote in my constitutional law treatise on the power of one Congress, through legislation, to bind a future Congress’s ability to pass new legislation,” accusing the Trump lawyer of flipping his conclusion “on its head” and “citing [his] work in support of the very opposite conclusion.”

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Per Tribe:

Specifically, in an apparent effort to get around the obviously binding force of the Electoral Count Act … Chesebro completely misused part of the latest edition of my constitutional law treatise.

…

In those passages I explained my view as to why “the power of Congress legislatively to bind subsequent Congresses is limited, for any statute that purported to direct or to forbid subsequent Congresses to do certain things or to follow certain procedures could be repealed, as could any other law, by another duly enacted statute.” Despite the clearly limited nature of that modest proposition, Chesebro cites my writing as though it stands for the radical claim that it would be wrong “to view the Electoral Count Act as tying the Senate’s hands, unless amended." That is, he averred that the Electoral Count Act could be flouted without a subsequent amendment or revocation by Congress.

What’s worse, as a result of this misrepresentation, Chesebro put me in the (outlandish) camp of those suggesting that the Electoral Count Act can be disregarded – for example, by a unilateral vice presidential decision to deem it “unconstitutional.”

Noting that Chesebro helped him as a research assistant in the “the very parts of [Tribe's] treatise” that the Trump lawyer then “misused,” Tribe argues his “dissection of the November 18 Memorandum shows not only a gross misrepresentation of legal authorities, but more importantly Chesebro’s pivotal role in laying the groundwork for ‘a coup in search of a legal theory.’”

Tribe then unequivocally refuted the very scheme Chesebro sought to enact to help Trump remain in power.

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“In future elections, removing the guardrails of the Electoral Count Act as Chesebro sought to do could grievously endanger our entire system of self-government under law,” Tribe wrote.

Read Tribe's full analysis at Just Security.