Legal scholars tear apart Trump-friendly 'cycle of retribution' arguments

07 February 2024

An argument that has been showing up in right-wing media outlets is that if the courts keep ruling against former President Donald Trump, it will set off a "cycle of retribution" in which Republicans pursue frivolous legal attacks on Democrats.

University of Texas legal scholars Steve Vladeck and Lee Kovarsky examine this claim in an op-ed published by MSNBC's website on February 7, slamming it as "flawed" and disingenuous.

"The upshot of this argument is that, if he's not immunized from criminal prosecution in Washington for his role in the January 6 insurrection and Georgia for his attempt to interfere in the state's election results, then sham prosecutions await every president," Vladeck and Kovarsky note. "And if courts allow Colorado to disqualify Trump from the presidential ballot, then disqualification will become the norm even for candidates whose behavior comes nowhere close to having participated in an insurrection or a rebellion covered by the 14th Amendment's text."

The legal scholars continue, "'If it can happen to Trump,' the argument goes, 'it can happen to anyone.'"

But Vladeck and Kovarsky lay out some reasons why these "cycle-of-retribution" arguments are "asking the courts to bury their heads in the sand."

"Slippery-slope arguments of the type that the D.C. Circuit rejected have three major problems," the University of Texas scholars explain. "First, they necessarily conflate the legal response to Trump's unique malfeasance with more conventional partisan disputes over, for instance, immigration or national security policy…. Second, the Trump-aligned argument ignores many mechanisms that constrain bad-faith prosecution and disqualification."

Vladeck and Kovarsky add that "the third, most important point" is that "if prosecutors and state election officials are inclined to indict or disqualify in bad faith, then courts having pumped the brakes on the Trump cases won't stop them."

"The reason is simple enough: Immunizing Trump from criminal prosecution and preventing his ballot disqualification would hardly arrest our political polarization," according to the University of Texas law professors. "And so long as demagogic political leaders describe opponents as 'enemies' and demand extravagant legal responses to vague, unspecified charges of wrongdoing, it won't matter how courts approach the Trump cases. There's little room for nuance when the watchword is grievance."

Read the full MSNBC op-ed at this link.

From Your Site Articles