Alan Dershowitz: Even Talking About Using a Constitutional Amendment Is Unconstitutional. I Am Not a Crank.

Alan Dershowitz: Even Talking About Using a Constitutional Amendment Is Unconstitutional. I Am Not a Crank.

Someone please tell Alan Dershowitz to get a grip.

The allegedly great legal mind appeared on Tucker Carlson Tonight on Thursday evening, where he told the favorite TV host of neo-Nazis everywhere that even considering the use of a constitutional amendment would be unconstitutional. No, seriously:

| “Trying to use the 25th Amendment to try and circumvent the impeachment provisions or to cirumvent an election is a despicable act of unconstitutional power grabbing.” |

The 25th Amendment provides a mechanism for the removal of a president from office if he is “unable to discharge the powers and duties of his office.” The amendment was ratified in 1967, and it has historically been thought of as a way to remove a president who was incapacitated due to some sort of physical illness. For example, Reagan’s Cabinet briefly considered invoking it in 1987 when concerns arose that the Gipper seemed depressed and was more or less refusing to work:

| “They told stories about how inattentive and inept the President was. He was lazy; he wasn’t interested in the job,” Cannon told Jane Mayer and Doyle McManus for their 1988 book Landslide, an account of Reagan’s second term. “They said he wouldn’t read the papers they gave him — even short position papers and documents. They said he wouldn’t come over to work — all he wanted to do was to watch movies and television at the residence.” |

Refuses to read even short documents, spends all his time in the residence watching TV – does that sound like another president we know?

Reagan, of course, turned out to be in the early throes of Alzheimer’s disease, which was not officially diagnosed until four years after he left office. A diagnosis while he was still in office would have been cause for using the 25th as it had originally been intended.

But back to Dershowitz. What set him off Thursday night was Andrew McCabe, former deputy director of the FBI, who said in an interview that senior Justice Department officials became concerned that Trump might be compromised by Russia, and that he was using the power of his office to shut down any investigations and cover up that possibility. As a result, they briefly wondered if getting the Cabinet to invoke the 25th Amendment was the appropriate remedy.

Now, let’s be clear about this. There is no evidence that Justice Department officials were discussing invoking the 25th Amendment because they did not like Trump and wanted to overturn the election, though that is how Trump immediately spun it. And even if they had determined the 25th was the appropriate remedy here, they would have had to convince two-thirds of the Cabinet, the House and the Senate. The chances of that happening were so tiny, one would need to travel into the Quantum Realm to find it.

Dershowitz’s argument is that even if the worst fears about Trump and Russia were true, impeachment is the proper constitutional remedy, not the 25th Amendment. Fair enough! Though consider this: a president’s oath of office includes defending the Constitution “against all enemies, foreign and domestic.” Might courts find that a president compromised by a foreign power fits the definition of someone “unable” to fulfill his duties, no matter what the original framers of the 25th intended? We simply don’t know.

In any case, talking about invoking it for Trump was not, as Dershowitz said, “an attempted coup d’etat.” Nor is it unconstitutional to wonder if the remedy to having a president who is compromised by a foreign power is an amendment to the frickin’ Constitution. Mentioning it is not “a grievous offense against the Constitution.” The senior heads of the FBI are lawyers and law enforcement officials. Faced with both criminal and counterintelligence investigations like those looking into Russian collusion, their job is to consider all legal remedies. That seems to be what they did in this case, while concluding that at least one remedy, the 25th Amendment, was not the appropriate one.

I don’t see this episode helping Dershowitz with his social life on Martha’s Vineyard, but summer is still a few months away.

Gary Legum

Gary Legum

Gary Legum has written about politics and culture for Independent Journal Review, Salon, The Daily Beast, Wonkette, AlterNet and McSweeney's, among others. He currently lives in his native state of Virginia.