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Alan Dershowitz: Time to fill the gaping hole in the Constitution
News coverage of the 25th Amendment, which Deputy Attorney General Rod Rosenstein reportedly discussed invoking against President Trump, has underscored a dangerous reality. There is a gaping hole in our process outlined in the Constitution for removing a president who is not doing his or her job. The impeachment criteria cover "crimes and misdemeanors." The 25th Amendment covers a president who is "unable to discharge the powers and duties of his office." But there are many possible situations that are not covered by these provisions that may well warrant removal.
Consider the following hypothetical situation. A well educated and hard working president who is perfectly capable of governing simply refuses to perform traditional duties. He is a believer in state rights who advocates for limited federal power, so he spends his time in the gym and watching television. He drops into the Oval Office a couple of times a week to say hello to his staff to whom he has delegated much of his executive power.
Moreover, he does not believe in the power of the federal government to prosecute and punish crimes. He believes that such power belongs to the states, so he pardons every federal prisoner. He nominates judges who agree with his philosophy and none are confirmed. He does not believe in influencing other nations, so he appoints no ambassadors and refuses to meet with foreign leaders. He thinks Iran should have nuclear weapons to balance those of Israel, so he provides its mullahs with resources to build a nuclear arsenal. He dislikes the British royal family and wants to end the special relationship with this major ally unless it abolishes the monarchy.
He appoints unqualified friends and cronies to top cabinet positions. He refuses to deliver the State of the Union, instead writing to Congress from time to time, saying the state of the union is weak, as it should be, and inviting governors to describe the states of the states. He has no interest in running for reelection because he just wants to serve his single term as unobtrusively as possible and write a book on his "accomplishments" as president. He is working on the book right now.
Clearly, this man should not be president of the United States, especially since he campaigned on a pledge to do the exact opposite of what he is doing. He pulled a bait and switch on the voters in order to get elected, and the voters are now furious and demand his removal. He laughs and tells them there is nothing they can do. His approval rating sits at zero.
Every senator and representative signs a petition demanding that he must resign, but the president refuses. Congress votes unanimously to remove him. He responds, "I have not committed an impeachable offense, nor am I unable to serve, so you have no basis on which to remove me. You all took an oath to uphold the Constitution and you are bound by it. You cannot circumvent or ignore the Constitution. You are stuck with me."
He would be right as a matter of law and theory. In practice, under such circumstances with such unanimous support for his removal, Congress would probably ignore the Constitution and vote for his removal, either under the inapplicable impeachment provisions or the 25th Amendment. They would stretch the words of the Constitution well beyond their intent because they would believe that the noble ends justified ignoble means.
They would be engaging in an act of civil disobedience in the interest of a higher justice. They would be praised for violating the Constitution to save the country. But they would be wrong. Violating the Constitution would not be justified, especially with the lawful alternative of an amendment to provide for the removal of a president who is able to serve and has done no crimes, but should be removed for refusing to carry out his duties.
It would not be easy to come up with language that would cover such an extreme and unlikely hypothetical situation without giving Congress far too much power to remove a controversial president simply because it disagreed with his politics. The framers of our Constitution very explicitly rejected a proposal to include as grounds for impeachment and removal "malpractice or neglect of duty" that is precisely what my hypothetical president could reasonably be charged with. They feared that such broad criteria would give Congress far too much power to overturn an election.
Were Congress to impeach on grounds expressly rejected by the framers, they would be violating their oaths of office. The difficulty of amending the Constitution to close this gaping hole does not justify stretching its words beyond their intended meaning. To be impeached and removed, the president must be charged by a majority of the House and convicted by the Senate of "high crimes and misdemeanors," not "high crimes or misdemeanors." To be removed under the 25th Amendment, he must be unable to serve. These words have meanings and Congress is not free to amend them without going through the complex amendment process.
If we ever had a president who did, or failed to do, the extreme actions set out in my hypothetical situation, an amendment to the Constitution would be hastily passed. So why not pass one now, not hastily but thoughtfully, to fill the current gap? It will not be easy for Congress to come up with the right language and garner the support, but it may indeed be necessary.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is "The Case Against the Democratic House Impeaching Trump." You can follow him on Twitter @AlanDersh.