Is There a Doctor (Shrink) in the White House?

(The American Prospect, January 12, 2021)

the current crIsIs wIthIn the unIted states government results from the storming, desecration, and insurrectionary invasion of the United States Capitol, the seat of American democracy, on January 6, 2021, by a rioting mob inspired and invited by President Trump to do so. This is especially the case because it resulted in the cessation of the joint session of Congress that was engaged in its constitutional duty of counting Electoral College ballots submitted to Congress by the states, confirming the results of the 2020 election.

The immediate issue for the American people and our government is how to proceed between now and January 20, when Joseph Biden and Kamala Harris are scheduled to be inaugurated, in order to protect our democracy and Constitution from further violations and depredations by Donald Trump and his supporters and to assure the legitimate and honest implementation of the results of November’s election.

First, and most importantly, Trump must be removed from his office as president immediately or as soon as possible. In his sendoff message to the thousands of insurrectionists who came to D.C. at his urging, he continued falsely to claim that the recent presidential election had been stolen from him by the Democrats and Joe Biden, and that notwithstanding his supporters’ criminal invasion of the Capitol, he still “loved” them and that they were “very special” to him. This makes clear Trump’s incapacity to continue to serve as president, which requires him to uphold the Constitution and laws, including the election results, as he is constitutionally obligated to do. Instead, he invited the invaders of the Capitol to support his false and fraudulent claims that the election had been stolen, saying that people should come to the Capitol because events in D.C. would be “wild.” In this, he was correct. It was beyond “wild,” as we saw but could hardly believe. And it did succeed, at least temporarily, in stopping Congress from honestly and lawfully declaring the election results, which confirmed Trump’s defeat at the polls— results he refuses to accept.

Because of Trump’s involvement and encouragement of this attempted coup, one member of Congress declared that “President Trump is wholly unfit to serve as commander-in-chief. After today’s insurrection at the U.S. Capitol incited by the president, he should either resign, be impeached again by Congress or removed by the Cabinet under the Twenty-Fifth Amendment.”

How true! Even though less than two weeks remain in his term, Trump must be ousted from office immediately, one way or the other: (1) that he resign—just as President Nixon “decided” to resign because leaders of his party told him it was required—or (2) that Vice President Pence and a majority of the Cabinet deem it to be necessary that he be removed under the Twenty-Fifth Amendment because of his clear inability to serve, or (3) that the Congress remove him through impeachment. In any case, he must not be permitted to continue to exercise the authority of the most powerful

office on earth for one more day. To consider only one possible exercise of those powers, he might pardon all of those who stormed the Capitol, as well as himself, members of his family, and other confederates who are in no way entitled to protection from prosecution by reason of their relationships with this lawless president. Trump’s immediate removal from office is imperative if further outrages such as occurred on January 6 can be prevented.

In this connection, as reported by the Washington Post (January 9, 2021), outgoing Senate Majority Leader Mitch McConnell circulated a memo to Republican senators last week in anticipation of a possible favorable House of Representatives vote during the week of January 11 to impeach President Trump based upon his incitement of the January 6 storming of the Capitol by a rampaging Trump-inspired mob. McConnell’s memo anticipated that the House managers would present its impeachment resolution to the Senate by at least January 19, after which the Senate would begin a trial of Trump, commencing either in the brief period before his term expires at noon on January 20, when President-Elect Biden would be sworn in, or thereafter, when the Democratic majority will take control of the Senate.

In fact, however, House Majority Whip James Clyburn suggested on Sunday, January 10, that the House might wait until after President-Elect Biden’s first hundred days in office to send impeachment articles to the Senate, in order to give Biden an opportunity to get his administration and program off the ground.

The action by McConnell was surprising for two reasons: First, it appeared to be somewhat premature, since no impeachment resolution had as yet been filed in the House. Second, since the Constitution seems to suggest that impeachment’s basic purpose is the removal of an officer from his or her office if convicted, would not the expiration of an officer’s term serve to moot any impeachment proceedings?

Article II Section 4 of the Constitution provides that officers

impeached and convicted “shall be removed from Office,” and the provisions of Article I Section 3 declare: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Also, Article I Section 3 states that the Senate shall have “the sole Power to try all Impeachments” and that “when the President of the United States is tried, the Chief Justice [of the Supreme Court] shall preside.” Does this provision suggest that if Trump is no longer president by reason of the expiration of his term, the impeachment case becomes moot, since the individual’s removal from office already has occurred?

On the other hand, since a possible penalty in a successful impeachment proceeding is disqualification from thereafter holding any federal office, oughtn’t a trial proceed notwithstanding an incumbent president’s resignation or his or her term’s expiration so that the Senate would not be deprived of its ability to impose permanent disqualification from office upon a deserving individual?

Further, Article II Section 2 of the Constitution declares that the president “shall have Power to grant . . . Pardons for Offences against the United States, except in Cases of Impeachment ” (emphasis added). This provision might, for example, be applied to prevent a situation where a president might seek to pardon a previously convicted president in order to remove a disqualification from office that earlier had been imposed by the Senate.

The foregoing suggests that a president’s resignation or the expiration of his or her term would not moot an impeachment proceeding, since Congress ought not to be deprived of its ability to impose a future disqualification from office upon a miscreant former president who has attempted to avoid impeachment by resigning while in office or claiming mootness upon leaving office at the end of a term. There is precedent supporting this interpretation.

In the case of Donald Trump, who has already announced his intention of running for president in 2024, it would be essential that the new Senate, which will convene after President-Elect Biden and Vice President Harris are sworn in, has the ability of convicting Trump in an impeachment proceeding, where a two-thirds vote is required, and then imposing a disqualification upon him from thereafter holding any federal office. Under existing Senate precedent, such disqualification may be imposed by a simple majority once a two-thirds vote for conviction has been achieved.

Another implication of the foregoing analysis is the fact that Congress having succeeded with impeachment might also undermine any claim that Trump might have successfully pardoned himself in connection with any crimes against the United States that he may have committed during his incumbency. Since the Constitution provides that a party convicted in an impeachment trial “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law,” would not this provision supersede and override any pardon that Trump might attempt to grant to himself? Or not?

As to the proposed impeachment article, a draft authored by Democratic House members Ted Lieu of California, David Cicilline of Rhode Island, and Jamie Raskin of Maryland was introduced on Monday, January 11. It has over two hundred co-sponsors, all Democrats.

The resolution accuses Trump of “willfully inciting violence against the Government of the United States” by a mob that “menaced Members of Congress and the Vice President, interfered with the Joint Session’s solemn constitutional duty to certify the election results, and engaged in violent, deadly, destructive, and seditious acts.”

The resolution concludes that Trump “gravely endangered the security of the United States and its institutions of government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coordinate branch of

government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States.” For all of the foregoing, the article seeks Trump’s impeachment, removal from office, and permanent disqualification from holding federal office.

Even before any action had been taken against President Trump for his complicity in last Wednesday’s criminal invasion of the nation’s Capitol, Trump’s staunchest public legal defender, attorney Alan Dershowitz, launched Trump’s defense on Fox News last Sunday.

First, Dershowitz argued that once Trump left office on January 20, the Senate would no longer have jurisdiction to try him, since the Constitution limits impeachment trials to sitting presidents. In fact, however, since the Constitution anticipates the possibility of a president being barred from office for life if convicted in an impeachment trial, his or her leaving office by resignation or the term having ended would not deprive the Senate of its jurisdiction to impose future barring from office.

Dershowitz also argued that what Trump said to his minions before he sent them off to the Capitol on Wednesday was constitutionally protected by the First Amendment. But what Trump told his listeners—that “if you don’t fight like hell, you’re not going to have a country anymore”; that “we will stop the steal”; that unless they took action, “you will have an illegitimate president”; that “we can’t let that happen”; and that he promised that when they got to the Capitol, “I’ll be with you”—was clearly unprotected, since it was “directed to inciting or producing imminent lawless action, and [was] likely to incite or produce such action.”121 Especially would this be the case when Trump had access to intelligence reporting that violence was expected. Indeed, he urged his supporters to come to Washington that day, tweeting, “Be there, will be wild!” And at his rally, his personal attorney, Rudy Giuliani, urged his listeners to engage in “trial

121. The test of Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

by combat,” a reference to the ancient practice of resolving legal disputes by the parties engaging in violent encounters to the death. Giuliani also said that “if we’re wrong, we will be made fools of. But if we’re right, a lot of them will go to jail.” The New York State Bar Association has launched an inquiry as to whether Giuliani should be removed from its membership rolls for his conduct.122

Finally, as to the proposal that Trump be removed from office pursuant to the Twenty-Fifth Amendment to the Constitution, which authorizes such removal when the president is “unable to discharge the powers and duties of his office,” Dershowitz opined: “He’s not unable to govern, he’s not incapacitated.” In this regard, Dershowitz is hardly qualified to make such a judgment. In fact, two distinguished psychiatrists have raised the question of whether Trump is in a reality-distorting mental state. In an opinion piece in the Los Angeles Times (January 9, 2021), psychiatrist Eli Merritt, a visiting scholar at the Center for Biomedical Ethics and Society at Vanderbilt University, declared:

One such condition is “delusional disorder,” which is unique among psychiatric conditions in that the area of dysfunction can be highly circumscribed. An individual with this disorder often has a single fixed delusion and otherwise functions normally. . . . The hallmark of delusional disorder is a nonbizarre fixed false belief, contradicting external reality, which is held by the patient fiercely despite overwhelming evidence to the contrary. . . . [President] Trump has been fixated for the last two months on the idea that he is the victim of a “stolen election,” despite all evidence that the election was free and fair. He continued to make this claim Wednesday before the mob that invaded the Capitol. . . .

122. Giuliani has since been suspended from practice in New York.

The loss of the November election seems psychically shattering to Trump, and the delusion of a “stolen election” could be one way to deny reality and repress pain. Major loss, it is well known, is the most common trigger of all psychiatric disorders, including delusional disorder. For Trump, the reality of the loss of the election, the White House, Air Force One, and so many other accoutrements of office, not to mention Twitter, clearly strikes hard.

To the same effect, Professor Ira Glick, Emeritus Faculty of the Stanford University School of Medicine, has declared:

Given recent events and the potential danger to our country, and to the rest of the world, I and most physicians would suggest that a medical evaluation of President Trump by his medical staff is indicated and necessary—even mandatory—at this time. He may have suffered brain damage with cognitive changes from the COVID-19 infection he sustained. Or he may have developed worsening of the traits of the disorder of his personality which is affecting his daily functioning, or even what others have written, i.e., developed “delusional thinking,” which may account for his recent continuing bizarre refusal to accept the election results as well as other eccentric behavior reported by those around him.

All of the foregoing suggest that our national leaders must act promptly and responsibly in connection with the political crisis our country is experiencing, and they must take appropriate action to assure the nation’s safety and security are protected.