Dishonesty and delusion

Earlier this week most of the Harvard Law School’s faculty signed a letter to their students, making essentially the same anodyne observations that were made by the deans of 79 law schools a few days earlier. Those observations consist of the — one would think — non-controversial position that a presidential administration punishing law firms and lawyers, because the president wants to revenge himself on those firms and persons for having opposed him in ways that were neither illegal or unethical, is a bad thing.

Now comes Harvard law professor Adrian Vermeule to dispute this, on the basis of the claim that . . . well judge for yourself:

The real issue is that the collective letter, although no doubt offered in good faith by its signatories, is shot through with selective ideological blindness. It is, I am sorry to say, a sectarian document cast as an appeal to high principle. Let us here ignore all other political controversies in recent years, and confine ourselves to those directly involving lawyers, judges, and legal representation: Where were the letter’s signatories when federal prosecutors took the unprecedented step of bringing dozens of criminal charges against a former president, who also happened to be the leading electoral opponent of the then-incumbent president? Where were the signatories when Jeff Clark, Rudy Giuliani, John Eastman, and other lawyers were disbarred or threatened with disbarment, and indeed prosecuted, for their representation of President Trump? Was this not a threat to the rule of law? Where were the signatories when radical activists menaced Supreme Court Justices in their homes, or when a mob hammered on the doors of the Supreme Court itself? Where were the signatories when the Senate Minority Leader shouted to an angry crowd outside the Court that “I want to tell you Gorsuch, I want to tell you Kavanaugh, you have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions”? Were these not also literal threats to the rule of law?

Now because both Vermeule and myself enjoy the literally incalculable intellectual advantages bestowed on people who have been trained to Think Like a Lawyer ™, I’ll save you some heavy intellectual lifting and point out that the answer to Vermeule’s rhetorical question is “no,” because an analogy that treats two things that are not at all the same as if they were identical is false, as a both logical and empirical matter.

But Vermeule, blessed as he is both by a formal legal education, and the edifying power of the Lord’s grace, as bestowed by the sacraments of the Holy Mother Church, has anticipated this very objection:

Now, of course, one can always say that “well those prosecutions or disbarments or protests were actually warranted, you see”; and the collective letter is careful to insert the qualifier that it only defends “lawful and ethical” representation. But the very question at issue is what is to count as “lawful and ethical,” and who gets to define what those terms mean. And that is what makes the ideological selectivity of the letter both painfully obvious and deeply corrosive of the shared ideal of the rule of law to which it appeals. Two can play at the game of ideological definition, but when they do, both will lose.

Allow me to retort: the answer, in any educational institution, to the question of “who gets to define” what terms such as lawful and ethical mean are the teachers, because that, as I believe St. Thomas Aquinas says somewhere or the other in the Summa, is literally our job, despite the disingenuous protests of this profoundly dishonest apologist for fascism. (This dictum probably reads better n the original Latin).

Defending Donald Trump’s insurrectionary campaign between November 2020 and January 2021 means defending his claims that the 2020 election was rigged against him, and that this purported fact made that campaign legitimate. Defending the actions as attorneys of Clark, Eastman, and Giuliani requires, at a minimum, defending that same underlying claim. That claim is false. It’s not “arguably” false, in EXACTLY the same sense that Holocaust denial is not “arguably” false.

People who support Holocaust denial by arguing either that the Holocaust didn’t happen, or arguing that the question of whether or not it happened is a legitimate subject of debate, are either dishonest or delusional. Dishonest and delusional viewpoints should not be tolerated inside legitimate educational institutions, for the — one would think — obvious reason that tolerating such viewpoints is inimical to the very concept of education. The purpose of education is not viewpoint diversity: the purpose of education is the discovery and transmission of truth, and the debunking suppression of falsehood. Viewpoint diversity is desirable to exactly the extent it advances this purpose, and it is undesirable to exactly the extent that it interferes with this purpose.

The “controversy” surrounding Trump’s attacks on law firms is parasitic on Trump’s larger underlying claim that he has been persecuted by the government by unlawful prosecutions, because he’s an innocent man, who did nothing wrong when he tried to stop the presidential election from being stolen from him by the Deep State. But that claim is false, and the fact that it is false isn’t open to reasonable debate, any more than Holocaust denial or the shape of the Earth are open to reasonable debate.

Supporting Donald Trump means supporting his lies, and either pretending to believe those lies, or being delusional enough to fail to see them for what they are. Which brings us to Vermeule’s other claim:

Among you, the students of Harvard Law School, there is a surprisingly large and intellectually powerful contingent who are conservative in some sense or other, many of whom support the current President and the legal policies of his administration. What exactly are you supposed to think when an overwhelming supermajority of the faculty, although purporting to speak “in their individual capacities,” jointly condemn those policies? You might be forgiven for wondering if you will get a fair shake during your time at the law school. Perhaps that concern will turn out to be objectively warranted, or perhaps it won’t. But the concern in itself is entirely legitimate, and as the collective letter speaks to the “fears” of other students without asking whether those fears are objectively justifiable, it seems only fair to do the same in the other direction.

Donald Trump and his policies can indeed be supported, but that support has to be based on arguments that are too brutal to be made straightforwardly, which is why they almost never are. Those arguments are that, while Trump’s claims about the election being stolen by the Deep State are lies, those lies are tolerable or even admirable, because authoritarian ethno-nationalism with an infusion of Christianist theocracy is so preferable to secular liberal democracy that lying about something like the actual outcome of the 2020 presidential election is better than simply acceding to electoral defeat, given how dire the consequences of that defeat were.

I myself will give a student a “fair shake” in regard to that belief, in that while I deplore it as a moral and ethical matter, I can’t demonstrate to the student that it’s false in a logical or empirical sense. But what I won’t give a student a “fair shake” about is the belief that Donald Trump’s lies aren’t lies. Any American law professor who defends that belief, as Vermeule does here, is a traitor to his profession, as well as to his country.