“Trying to use the 25th Amendment to try and circumvent the Election is a despicable act of unconstitutional power grabbing…which happens in third world countries. You have to obey the law. This is an attack on our system & Constitution.”
(The Amendments are part of the Constitution.)
Dershowitz is just fear-mongering and spouting nonsense. It is completely impossible to use the 25th Amendment to overturn an election. There is literally no such thing, because the only person who can possibly benefit from the process is the Vice-President, who was elected in the very same election!
As a former Harvard law professor, Dershowitz surely knows that the Amendments are part of the Constitution. He was talking about misusing the 25th Amendment to remove a President for any reason other than physical or mental incapacity (it was passed in the wake of JFK’s assassination and was meant to deal with issues such as a President’s death or health emergencies that render him unable to discharge his duties, such as Wilson’s stroke.) Plotting to remove a President just because you don’t like him personally, disagree with his policies, have vague suspicions that he somehow “cheated” or think the other candidate should have won is not a proper use of the 25th Amendment, it’s a coup attempt.
I agree with you, Creeder443. What do you think about Trump’s declaration of a national emergency at this time?
Reeder.
That’s incorrect.
In order to attempt to remove a President by the 25th Amendment, it must be initiated by his supporters (Vice-President and a majority of the cabinet), not by his enemies.
Since it must be done by his own hand-picked team, it could not be for disagreement with his policies, or a feeling that he cheated in an election. (The V.P. invoking the 25th would be, by his actions in such a case, charging himself as well, since he benefited from the same cheating in the very same election.) Also, if the 25th is invoked, it would not change the government to the opposing party, but merely hand it over to the V.P.
If the 25th were invoked by the President’s own team (the only way it can be done), there could still be a constitutional way to do that and an unconstitutional one. If for example, the V.P. began the process because he thought the President was an agent of a foreign power, that would be right-minded, but (probably) unconstitutional. That’s what impeachment is for. But if he initiated it because he thought the President was mentally or psychologically incapable of holding the office, that would be both right-minded and constitutional.
In reality, the 25th Amendment will probably never be invoked, because of the very reasons I described above. The president’s own men are not going to initiate the process unless the President is obviously and completely incapacitated in some way. Moreover, even after it has been initiated, and a majority of the cabinet supports it, it still requires a 2/3 vote in BOTH houses, making it more difficult than impeachment to get through the legislative branch
Basic rule of thumb: impeachment is for removing a President by his enemies; the 25th is for removing a President by his friends.
Needless to say, Dershowitz fully understands all of that, but Fox News is not paying him to be scholarly and boring. They won’t employ him at all if he doesn’t support their narrative, so he offers loony, half-true, TV blowhard statements as kind of an acting gig, because that gig pays for a lot of toys he could never afford on a professor’s wages.
Also because ol’ Dersh may have his own skeletons that he expects Team Trump to help him hide.
Actually, I think Creeder is correct in that it would be “wrong” to remove the president via the 25th Amendment unless he was actually incapacitated in some way. But Scoopy is correct that such a removal would require the vice-president, a majority of the president’s cabinet and 2/3 of both houses of Congress to remove the president via the 25th Amendment, but only a majority of the House and 2/3 of the Senate to impeach and remove him. The only situation where the 25th Amendment could be part of a “coup” is if it was vitally important to remove the president immediately. Impeachment presumably takes time, days at least if not weeks or months. But in the case of the 25th Amendment, the president is removed immediately upon the cabinet vote, and the VP is acting president while the Congress debates whether to restore him with as few votes as 1/3 + 1 of either house. The only situation where something like that might be time sensitive that comes to my mind is if he was threatening a missile launch or something like that. Of course that would probably mean he was mentally incapacitated making the removal proper.
So would it be wrong to remove the president via the 25th Amendment not because he or she was incapacitated but because you didn’t like them? Yes. But it is almost impossible to conceive a situation where people that disliked the president that much would be in a position to use the 25th Amendment to do so. I say “almost impossible” because the 25th Amendment was used to remove Dennis Haysbert’s character on 24. In my opinion the single most unrealistic plot device in the history of that show.
Once again, the 25th Amendment is the one where the President is removed by his friends – his hand-picked cabinet and V.P. His cronies are not going to remove him for the reasons submitted by Reeder.
But yes, as I said, it would probably be unconstitutional for the V.P and Cabinet to remove him because they knew him to be an agent of a foreign power, even if their action was best for the country. The 25th is not designed for that, but for cases where the president is UNABLE to discharge his duties, as opposed to being perfectly able to discharge them in a manner with which they disagree, even if that manner is clearly not in the best interests of the country.
(Let’s say, in a totally far-fetched example, he tells the military to stand down while Russia re-claims Alaska as they did with Crimea. We’d love to have a mechanism where he can be removed from office instantly, but the 25th is not designed for that.)
There is an interesting twist to the 25th Amendment. It can be abused by the President himself, in collusion with the V.P. In theory, the President can ASK a willing V.P. and cabinet to exercise the 25th Amendment, thus making the V.P. the Acting President. While Acting President, the V.P. may pardon the displaced President for any crimes he has previously committed (as Ford did with Nixon), whereupon the displaced President can then resume his place as President by simply declaring that no inability exists. While this is too far-fetched even to be a plot twist on House of Cards, it is theoretically possible. With Pence’s co-operation for just a few hours as Acting President, Trump could continue as President with a completely spotless record, untouchable for his crimes by any federal courts, although still within the reach of state courts.