Containing the ‘Trump Contagion’

Now, May a Chorus of Legal Experts Begin

Many have asked: How can we contain the “Trump Contagion”?  Many have heard me answer, at various times: “strong and speedy prosecution,” “mental health-informed, proper intervention commensurate to the problem,” and “keeping with norms and standards, regardless of threats.”

One of the reasons why the American Psychiatric Association’s (APA’s) public campaigns since Donald Trump’s inauguration were so harmful—and I have argued, responsible for all subsequent harms—is because it failed to keep with its own norms and standards.  In order to avoid meeting our difficult responsibility to society, and the Declaration of Geneva that obligates us not to conform to dangerous regimes, it modified and elevated the obscure and insignificant “Goldwater rule” to absolute status.

Instead of leading the way for professionals conscientiously trying to fulfill their societal responsibility, according to the APA’s own code of ethics, the organization crusaded against them and slandered them, in the name of its new “ethics”.  In truth, it did so to justify its own cowardice, in letting go of all principles in the face of fear and favor.  It thus failed to “keep with norms and standards, regardless of threats.”

Now, we have another opportunity to affirm norms and standards, through the field of Law.  Instead of leaving the public’s judgment on the January 6 Capitol assault to purely partisan politics—the way psychiatry left the public’s assessment of mental fitness to partisan politics alone—legal experts are responsibly stepping forward.

Foremost constitutional law experts Judge Michael Luttig and Professor Laurence Tribe stepped outside their academic arenas to coauthor an article in the Atlantic, emphasizing that Section Three of the Fourteenth Amendment:

“automatically excludes from future office and position of power in the United States government—and also from any equivalent office and position of power in the sovereign states and their subdivisions—any person who has taken an oath to support and defend our Constitution and thereafter rebels against that sacred charter, either through overt insurrection or by giving aid or comfort to the Constitution’s enemies.”

This, of course, is Donald Trump. They cite Section Three itself:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof [emphasis added].”

They are indeed affirming the opinion of William Baude of the University of Chicago and Michael Stokes Paulsen of the University of Saint Thomas, who argued recently in a scholarly article that the U.S. Constitution forbids Trump from serving in public office.  They asserted:

“Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced.  This article corrects those mistakes by setting forth the full sweep and force of Section Three.”

Additionally:

“Section Three remains an enforceable part of the Constitution [that] is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress.  It can and should be enforced by every official, state or federal, who judges qualifications…. in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.”

These are all bold statements. The coauthors additionally clarified that the specific historical origin does not relegate the greater principles into being an anachronism or a relic from the past—since every provision, clause, and word of the Constitution holds, as long as it has not been repealed or revised by amendment.  How admirable! The entire world might be different today, had psychiatry held onto such higher principles, such as societal responsibility and duty to the community and to public health.  Instead, the lone APA took an actual anachronism called “the Goldwater rule” and strengthened it beyond every other enduring principle, in the opposite direction of current science, evolving practice, or even common sense.

Deviations from norms of scholarship and practice in such a manner should alarm us—for extraordinary times require steadfast adherence to ordinary standards, not modifications to make the abnormal look normal. This is what facilitates fascism.

Luttig and Tribe are correct when they reclaim:

“The most pressing constitutional question facing our country at this moment … is whether we will abide by this clear command of the Fourteenth Amendment’s disqualification clause.”

These legal experts are rising to their responsibility, doing the very opposite of using their expertise to take a backseat, based on technical excuses. This is inspiring and refreshing! They do not utter absurdities such as: “Legal experts should not comment on public figures unless they have personally represented them and received authorization to speak about them” (which is the legal equivalent of what the APA has done).

Citizens are obligated, all the more so if they have special expertise, to share their gifts with society and to offer their general consensus where appropriate, for the good of society. Fitness or dangerousness in mental health, and constitutional qualification in Law, are the kinds of analyses done for the public and, when necessary, in public—and have nothing to do with doctor-patient or attorney-client privilege. Here, the patient/client is society, not the public figure, and we must be clear about what we serve.

We are at another critical juncture in history. At one time, it was important for mental health experts to lead the way so that the people could say with confidence: “The president is dangerously unfit!”  Now, it is critical for legal experts to become the voice that repeats until the people can resound with conviction: “The presidential candidate is disqualified!” Starting with the legal experts, and then the elected officials, if enough people repeat this, over and over—as mental health experts wished to do in the beginnings of the Trump era—then we will have succeeded in containing and reversing the Trump Contagion.