The view of liberal lion Laurence Tribe, a leading constitutional scholar, that any Congressional move to disqualify President Trump would amount to a bill of attainder is a warning to Congressional Democrats mulling launching a parting shot at the former president before ceding their majority. 

Mr. Tribe, a University Professor Emeritus at Harvard and a mainstay at the law school there for more than half a century, shared that evaluation Saturday via a tweet to his more than 1 million followers on the social media platform. 

While Mr. Tribe allowed that he was “no Trump fan,” adding three exclamation points for emphasis, and admitted that a “court could and should find him disqualified under sec 3 of the 14th Amendment,” he argued that for “Congress itself to pass a law finding Trump guilty would violate the Art I Sec 9 bans on bill of attainder.” 

Mr. Tribe offered this analysis while retweeting an article detailing a letter sent to House Democrats announcing by Representative David Cicilline and reporting that the Rhode Islander has “drafted legislation that would prevent Donald Trump from holding public office again under the Fourteenth Amendment.” 

That letter asserts that “Donald Trump engaged in insurrection on January 6th with the intention of overturning the lawful 2020 election results.” For that claim, it cites evidence gleaned from the January 6 committee and Mr. Trump’s second impeachment trial, which concluded that he was not guilty of “incitement to insurrection.”

Mr. Tribe, who is a founder of the liberal American Constitution Society and who has argued 36 cases before the Supreme Court, looks to judges rather than legislators to enforce the 14th Amendment’s Disqualification Clause, the Reconstruction-era measure which bars those who have “engaged in insurrection” from holding any future office. 

Only one judge has ruled that what transpired on January 6 was an insurrection and subsequently ruled that the Disqualification Clause applied. That case emerged from a state district court in New Mexico, and involved a county commissioner, Couy Griffin, who also served as the founder of “Cowboys for Trump.”

Both the federal constitutions and those of the states unambiguously forbid bills of attainder, which have been called “trial by legislature.” The United States constitution ordains that “No Bill of Attainder or ex post facto Law shall be passed.” In England the last use of attainder was in 1798 against Lord Edward FitzGerald, leader of an Irish rebellion.

A Supreme Court case from 1964, United States v. Lovett, warned against legislative efforts to “inflict punishment” on individuals “without a judicial trial.” The January 6 committee, which mounted a televised trial of the former president without the inconvenience of cross examination or rules of evidence, flirted with the ban Mr. Cicilline is contemplating defying.