Interview: Law Professor Richard Painter, Psychiatrist Bandy Lee Explain Views on Trump’s Trial

In an op-ed published Tuesday morning, former Bush White House ethics attorney and current Minnesota Law Professor Richard Painter and Yale forensic psychiatrist Bandy Lee argued that President Donald Trump is mentally infirm and/or unwell and therefore incompetent to stand trial over his impeached conduct in the U. S. Senate. The following companion interview contains a series of questions editors thought should be asked about that viewpoint.

COLIN KALMBACHER: Why put this idea out there now–just as the Senate trial on the historic articles of impeachment is set to begin? Isn’t this a case that should have been made some time ago?

RICHARD PAINTER: We already made this case some time ago. He is mentally unfit for office and also mentally unfit to stand trial. More evidence has come to light since his impeachment.

BANDY LEE: A group of colleagues and I already determined he is incapable of making rational decisions, which means being unfit for office. I was on the fence about his capacity to stand trial until recently, but some of his recent comments made this question unavoidable.

Critics might bristle and say you’re diagnosing from afar and that such diagnoses are unfair—what is your response to that?

RP: Ordinary people who read his Twitter page and who listen to what he says can sense that something is wrong–very wrong–with him. It’s not just partisanship on his part, or well thought out lies. Much of it makes zero sense.

BL: You are presumed competent until a question is raised. He made this question inevitable with his comments, “I just got impeached for making a perfect phone call!” or “Why are they doing this to me?” You have to understand what you are being charged with and why to be competent, and so we are suggesting he be evaluated, which is not a diagnosis.

Richard, how does your previous experience as a White House ethics attorney—for George W. Bush—inform your decision-making here?

RP: I saw how normal people react to tense political situations, including allegations of serious wrongdoing. And that’s not what I see here. Trump’s reactions are not normal. I have never seen anything like it before.

We’ve had some discussions and wondered: is this really just an end-run to have Trump removed via the 25th Amendment?

RP: No. That requires initial action by his cabinet and approval of Congress. The decision of the Senate by a majority vote that he is no mentally fit for trial might start that process, but most likely would not because the cabinet is so loyal to Trump.

BL: As a medical professional, this is not my domain.

Clinical evaluations of criminal suspects are more or less pro forma—courts regularly request them and sometimes occur even absent a judge’s order in less formal circumstances under the direction of law enforcement. Could you talk a little about how that might serve as a precedent–or perhaps more accurately work as an analogue–here?

RP: If a defendant shows signs of mental distress there is usually an evaluation before a trial. Without it a guilty verdict could be thrown out. Judges, prosecutors and sometimes defense attorneys often call for the evaluation before trial. We believe the House impeachment managers should call for it. Alternatively, one or more senators could make a motion for an evaluation. Or the chief justice could raise the issue with the senators.

BL: That is right. A defendant is presumed competent until doubt arises, whatever the source. Then a forensic psychiatrist such as myself could be asked to evaluate the defendant, since a defendant who is incompetent to stand trial is not supposed to be tried.

Let’s say your recommendations are followed through on. Based on your shared knowledge of law, psychiatry and D.C. how might such a process play out in real time?

RP: The motion would be made to the senators and they would decide by majority vote whether the president is mentally fit to stand trial. Fifty-one votes would be required to postpone the trial on the ground that he is not fit. This might be a reasonable compromise position for a handful of Republicans who do not want to remove him from office but who think he is mentally imbalanced.

BL: We can bring together a panel such as we did for the evaluation of his capacity for office (each question has a different standard and must be evaluated separately). We have a panel set up for fitness-for-duty exams, based on medical criteria, and it could potentially be summoned to address this question. What matters is that the panel be independent from the government, not that it be ours.

Richard, you previously worked for another Republican administration that was constantly pilloried by liberals in the press–at least during Bush’s second term–but now you’re essentially the liberal in the press leveling criticism. How has your time as a member of the GOP led you to this point and what’s so different about Trump’s policy from Bush’s (or Obama’s)? Many people see a direct line-continuum from the past two administrations to the Trump administration’s extra-constitutional excesses and right-wing policy-making…

RP: This is not about policy or politics. My own views on issues have changed relatively little. Most important, I would not reach that same conclusion about the mental state of Mike Pence or certainly about anyone in the Bush administration. This is about mental state, not politics.

Bandy, the libertarian magazine Reason has criticized you for allegedly diagnosing Alan Dershowitz with narcissistic personality disorder in the past, and has accused you of essentially attempting to neutralize political opponents by tarring them as mentally ill. What do you have to say to that specific criticism?

I never diagnosed Dershowitz—some of these articles are incredibly misleading! I am non-partisan and have never been partisan, even personally, because of a lack of interest in politics. My duty as a health professional is to point out where a disease pattern is occurring and to alert about the need for evaluation and treatment. That it happens to be occurring at dangerous levels—my standard for speaking publicly—with one political party is not something I can change, just as I cannot say an infectious disease that happens to be afflicting one household is also happening with their neighbor when it is not, to be “fair.” A medical professional is supposed to describe medical phenomena as one sees it, not apply political equality.

Following up: Dershowitz has filed a complaint over that diagnosis and responded to you in a recent essay. Any response to that on-the-record?

BL: He has filed multiple complaints, not just with Yale but with the Connecticut medical licensing board and the American Psychiatric Association. I have followed ethical guidelines and look forward to a discussion, if any. He personally declined my invitation to have a discussion at Yale.

Bandy, you previously organized a conference on Donald Trump’s mental health. Could you tell our readers a little about that?

BL: My chief concern has always been ethics, and so when there were signs of psychological dangerousness in a new president, I invited some of the preeminent thinkers of psychiatry to discuss the ethics of speaking up. This was in early 2017, and it led to the public-service book that became a New York Times bestseller, The Dangerous Case of Donald Trump: 37 Psychiatrists and Mental Health Experts Assess a President.

This is a decidedly controversial argument with a frightening premise: the man in charge of the world’s largest nuclear arsenal is mentally unwell. Following that logic, he shouldn’t even be allowed in the White House, right?

RP: Exactly right. He certainly should not have access to the nukes.

BL: This has been our argument since the beginning: he has only abundantly proven it each step of the way.

[image via Saul Loeb/AFP/Getty Images]

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