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Opinion: Donald Trump Should Not Be Tried … He May Not Be Mentally Competent

President Donald Trump speaks during an event honoring the 2019 college football national champions, the Louisiana State University Tigers, in the East Room of the White House in Washington, D.C. on January 17, 2020. 

Under well established principles of justice in the United States, a Defendant who is not mentally competent to stand trial cannot be tried.

We believe that Donald John Trump should not, and cannot, be tried for impeachable offenses, as set forth by the House of Representatives, because of his apparent mental incapacities.

One of us (Lee), a forensic psychiatrist, has 17 years of trial experience in both criminal and civil courts with individuals of similar behavioral patterns as Mr. Trump. The other of us (Painter), a professor of law, served from 2005 to 2007 as Chief White House Ethics Counsel for the Bush/Cheney Administration.

Nevertheless, one need not be a Board Certified Psychiatrist or a former White House Ethics Counsel to see that Donald J. Trump is not psychologically well.

Let us just take a sampling of evidence from the recent public record.

“I Don’t Know Lev Parnas”

Despite mountains of evidence that he not only knew Lev Parnas but that Mr. Parnas was in his “inner circle,” Mr. Trump declares adamantly, “I don’t know him at all, don’t know what he’s about, don’t know where he comes from, know nothing about him.”

Either he is a pathological liar or has severe cognitive impairment, and both are worrisome signs of mental compromise.

“Sharpie-Gate”

Despite very, very clear indications that Hurricane Dorian was not going to reach Alabama, Mr. Trump took out a “Sharpie” pen and manufactured an illusory path of the Hurricane. This is not normal but dangerous. People across the country rely on their President to alert them accurately to potential threats from weather and other conditions.

He could have been misinformed, but we know he was not. Either he truly believes he is “God” and can determine or change the path of a bona fide hurricane; or he needs to be “right,” no matter the facts, and must have others conform to his views, regardless of reality. Both are dangerous signs indicative of disease.

“Twitter Storms”

Many of us have read one or more (or a thousand) tweets from this man’s mind. A few are legitimate, but, truthfully, most reveal a serious level of dysfunction, such as the following:

“I JUST GOT IMPEACHED FOR MAKING A PERFECT PHONE CALL!” (January 16, 2020).

“Why should I have the stigma of Impeachment attached to my name when I did NOTHING wrong?… A totally partisan Hoax, never happened before” (January 12, 2020).

“Let this serve as a WARNING that if Iran strikes any Americans, or American assets, we have … targeted 52 Iranian sites (representing the 52 American hostages taken by Iran many years ago), some at a very high level & important to Iran & the Iranian culture, and those targets, and Iran itself, WILL BE HIT VERY FAST AND VERY HARD. The USA wants no more threats!” (January 4, 2020).

“As I have stated strongly before, and just to reiterate, if Turkey does anything that I, in my great and unmatched wisdom, consider to be off limits, I will totally destroy and obliterate the Economy of Turkey (I’ve done before!)” (October 7, 2019).

Currently the one person designated by the U.S. Constitution as Commander-in-Chief and thus authorized to order the use of nuclear weapons—at his whim—has, in all likelihood, a severe and serious mental impairment.

This is unfathomably dangerous.

We believe, in our professional capacities, that Donald J. Trump should not and cannot be legitimately tried for impeachable offenses unless he is found to be mentally competent to stand trial under the principles of Justice well established in the United States.

A big issue is whether the person understands what he is being charged with and why. In addition to his tweets, the President is alleged to have said repeatedly over the weekend at Mar-a-Lago: “Why are they doing this to me?” He “can’t understand” why he is impeached.

Until there is an evaluation, the determination that he is competent to stand trial cannot be made, nor assumed.

The Court, in this case the Senate, should order an involuntary assessment, as would happen in any other trial circumstance. The general rule is that a defendant is unfit for trial if not mentally fit, and that precludes conviction or acquittal. A defendant—after treatment—may be mentally fit to stand trial, and the point is that there should not be an earlier trial and conviction or acquittal of a mentally unfit defendant.

A defendant deemed unfit to stand trial in a serious criminal case is often hospitalized so he will not be a harm to himself or others, but in the instant case that will not happen. If he is not temporarily removed from office under the 25th Amendment, steps should be taken to avoid his misuse of Presidential war powers or nuclear weapons.

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Note: Law&Crime conducted an interview separately with Painter and Lee, which contains a series of questions editors thought should be asked about this viewpoint.

Bandy X. Lee, M.D., M.Div., is a forensic psychiatrist at Yale School of Medicine who also teaches at Yale Law School. Richard Painter, Esq., is professor of law at the University of Minnesota and chief ethics counsel for the Bush/Cheney White House. Both are co-authors of The Dangerous Case of Donald Trump.

[Image via Mandel Ngan/AFP via Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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