Talk of removing President Donald Trump via the 25th Amendment has been met with fierce opposition from Harvard Law Professor Emeritus Alan Dershowitz, who has stated that the amendment is for cases where a president is legitimately sick or otherwise unable to do their job. The Constitution does not permit–barring criminal activity–removing a president because of how they do the job. In an opinion piece for The Hill, however, Dershowitz argues that perhaps it should.
“[T]here are many possible situations that are not covered by these provisions that might well warrant removal,” Dershowitz wrote, referring to impeachment criteria and the 25th Amendment. His solution? Congress should pass a new Amendment to the Constitution that would allow the removal of a president under additional circumstances.
The famed defense attorney goes on to describe a hypothetical president—critics of Trump might claim certain attributes apply to him, but the hypo is clearly meant to go far beyond anything we’ve ever seen—to prove just how much a president can legally get away with under current rules.
In discussing a case where “A president who is perfectly capable of governing — he is smart, well educated, hard working — simply refuses to perform the duties traditionally undertaken by the president,” Dershowitz argues that such a person could fail to appoint ambassadors, only nominate extremist judges who never get confirmed, nominate unqualified friends to government positions, refuse to prosecute any federal crimes, and essentially strip Washington of power by just not doing anything out of desires to strengthen states’ rights and be more isolationist.
While Congress could decide to rebel and remove that president via the impeachment process, and the cabinet could invoke the 25th Amendment, both moves would be unconstitutional because they don’t fit the criteria for using them.
For just such a case, Dershowitz says, Congress should come up with—and pass—an amendment that would let them remove a president in extreme cases that aren’t covered by current laws.
Dershowitz’s piece may seem odd, coming from someone who has defended Trump against calls for him to be removed. After all, it may seem like he’s offering advice on how this could be done. At the same time, however, Dershowitz warns that this task would be difficult.
“It would not be easy to come up with language that would cover my extreme and unlikely hypothetical without giving Congress far too much power to remove a controversial president just because it disagreed with his politics,” Dershowitz writes. “The framers of our Constitution explicitly rejected a proposal to include as grounds for impeachment and removal ‘malpractice or neglect of duty.'” The framers, he says, did not intend for Congress to be able to overturn an election, which is basically how Trump supporters view efforts against the current president.
What Dershowitz appears to be doing here is recognizing some of the problems in the current administration, and forecasting how things could theoretically be much worse without a remedy. At the same time, he’s calling out those who cry “impeach” and “25th Amendment” without just cause. He dares them to use the established legal process to fill a “gap” in the current system, while pointing out that it won’t be easy to do it properly.
[Image via ABC screengrab]