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Monday, December 6, 2021

Dershowitz: 25th can be used when president is psychiatrically incapacitated.

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Someone should remind Alan Dershowitz that the 25th Amendment is in the Constitution for a reason which may apply to the current president, and that having Department of Justice officials discuss whether it may be applicable with a president who shows signs of being mentally unfit is legitimate.  He is saying on Fox News that if Rod Rosenstein and Andrew McCabe and other FBI officials removed President Donald Trump from office using the 25th Amendment it would be an attempt at an unconstitutional coup d’état if they spoke to Cabinet members about it.

Dershowitz is smart and seems at times to play to two audiences at once. For example, on Feb. 15th he tweeted: Let’s assume the president of the United States was in bed with the Russians, committed treason, committed obstruction of justice. The 25th Amendment is simply irrelevant to that. It is unconstitutional to use the 25th Amendment to circumvent impeachment provisions. The 25th can be used only if POTUS is physically or psychiatrically incapacitated. Any other use is unconstitutional. I challenge anyone to argue differently.

The president hears what he wants to hear, as this Valentine’s Day tweet demonstrates:

It seems to me that when Prof. Dershowitz addresses Trump via Fox News his focus is on attacking Trump’s enemies. In his tweets, which Trump may only see if Fox News posts them, he states the legal facts. Perhaps writes some of them for a legally knowledgable audience, including his former colleagues at Harvard Law, graduates, and current students who have been wondering if he’s lost his mind as they only hear him defending Trump and attacking Trump’s enemies.

What is noteworthy is that he has interpreted the 25th Amendment as being applicable when a president is either physically or psychiatrically incapacitated. Of course, it is. Incapacitation is incapacitation.

Dershowitz is a frequent guest on Fox News which touts his bona fides as a Harvard Law School professor emeritus on the bottom of the screen chyron. I suspect Harvard Law faculty and students are as unhappy to have the Trump apologist associated with their name as were the liberal summer residents of Martha’s Vineyard who, much to the lawyer’s chagrin, stopped inviting him to their parties: watch “Alan Dershowitz slams Martha’s Vineyard liberals for ‘shunning’ him over Trump defense” on Fox News.

Dershowitz is lying if he is saying that the FBI could promote a coup. It wouldn’t anything near a coup since they’d have no ability to initiate the 25th. Talking about it isn’t the same as doing it. The real issue is that they saw indications that led them to consider the possibility that the president might be mentally unfit.

From “Dershowitz says talks to use 25th Amendment to oust Trump could amount to ‘unconstitutional coup'” published in The Hill:

Attorney Alan Dershowitz on Wednesday said it would be “tantamount to an unconstitutional coup” if it’s confirmed that intelligence officials discussed invoking the 25th Amendment to remove President Trump from office.

“As far as the investigation is concerned, look, nobody’s above the law. You’re entitled to investigate anybody,” Dershowitz said. “So I have no quarrel with, if they think he did something wrong, conducting an investigation, and if they find grounds for that, opening an impeachment process.”

“It’s the 25th Amendment that should disturb every American because it wasn’t intended for this kind of conduct,” he continued. “It reminds me of the television show ‘House of Cards,’ where they invoke the 25th Amendment to make for an interesting series, but in real life the 25th Amendment is completely inapplicable.”

The 25th Amendment was and is intended to provide a mechanism to remove a president expeditiously, although temporarily, from office if he or she is unable to function with full use of their faculties. Although written with physical disability in mind, it must also be interpreted to apply to a president, not in full control of their mental abilities. Being mentally unable to make decisions rationally is the same as being physically anesthetized. In fact, it is worse, because when on the operating table a president is unable to make irrational and possibly dangerous decisions.

I am sure that the two top spokespersons from the field of mental health, forensic psychiatrist Bandy X. Lee, the editor of “The Dangerous Case of Donald Trump,” and clinical psychologist John D. Gartner (a contributor to the book), who both have been frequently quoted in the media would agree. This was published in The Hill Reporter on Feb. 20, 2019:

Following former acting FBI director Andrew McCabe’s declaration that he’d launched an investigation and President Trump’s response on Twitter that McCabe was a traitor and coup perpetrator, Yale psychiatrist Bandy X. Lee weighed in with her opinion that Trump needs a psychiatric evaluation because he is a danger to the United States and the world due to his ‘severe mental impairment.’

“I am of the camp that believes that a full assessment is necessary to make a diagnosis—which is why I have been stating that we need an evaluation,” Bandy said. “The American people, who are his employers, have every right to demand one, most essentially a fitness for duty exam before he continues another day, another hour, or another minute at his job.”

This belief by Lee also has been backed up by renown psychologist John Gartner, who earlier this month told KrassenCast that President Trump suffers from multiple mental illnesses, including malignant narcissism, sadism, and psychopathy.

Bandy added that Trump exhibits “psychological dangerousness” that would “translate into an assault on democracy and human rights” and even “an existential threat to the survival of human species because of the technology he has at his disposal.”

This was published in Salon on Feb. 22nd:

Yale psych prof: If Trump weren’t president he would be “contained and evaluated” Psychiatrist and editor of “Dangerous Case of Donald Trump” says “a lot worse will happen” if Trump is not removed.

During the OJ Simpson trial when the law professor was an appellate adviser for the defense there was a joke I heard. It went something like this: “Where’s the most dangerous place to be in Cambridge?” The answer was “between Alan Dershowitz and a camera.”

Since the O.J. Simpson trial, which arguably made Derschowitz nationally famous and most would say infamous, he has said his support of Donald Trump has been personally more difficult: “Backing Donald Trump has been worse than defending O.J. Simpson” from Business Insider, July 7, 2018.

Harvard law professor emeritus Alan Dershowitz said backing President Donald Trump in certain cases has been harder than defending O.J. Simpson and other celebrity clients, according to an interview with The New York Times.

When asked, “Is this actually worse than when you defended O.J. Simpson?” of his defense of the president, Dershowitz replied:

“Of course. Or Claus von Bulow or Leona Helmsley or Michael Milken or Mike Tyson. This is much worse than all that.”

Dershowitz continued, “In those cases people were critical of me, but they were prepared to discuss it. They were prepared to have a dialogue. Here, the people that I’m objecting to want to stop the dialogue. They don’t want to have the conversation.”

The fact of the matter is that nobody knows what Dershowitz really believes because if he didn’t take the positions he did he would be just another obscure lawyer whose celebrity was long forgotten.

His rationale for joining the defense teams of celebrities was always that everyone, even the famous, deserved the best vigorous defense possible. He never said that those who defended celebrities frequently turned their lawyers into celebrities in their own right. Whoever heard of Johnnie “If it doesn’t fit, you must acquit” Cochran before O.J. Simpson?

Alan Dershowitz has no formal relationship with Donald Trump as does another Rudy Guiliani, another attorney who lust for the spotlight. He is a media shill for Donald Trump. Unfortunately for millions of Fox News viewers the legal opinions the former Harvard professor are taken as gospel.


In an earlier version of this column I suggested Alan Dershowitz wasn’t telling the truth about the Constitution. This was before I looked at his tweets from Feb. 15. I apologize for the misstatement. 


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