Former Harvard Law professor Alan Dershowitz called former acting FBI Director Andrew McCabe’s alleged attempt to remove President Donald Trump from office “utterly unconstitutional.”
During an interview on Fox News, Dershowitz explained that the United States Constitution has only two options for removing the president: impeachment or invoking the 25th Amendment in the case that the president is unable to do the job, such as a medical condition.
He claimed that McCabe’s plan to invoke the 25th Amendment lies beyond the bounds of the Constitution.
Watch the video below:
“We have impeachment, on the one hand, if you’ve committed a high crime and misdemeanor. We have the 25th Amendment, on the other hand, if you are unable to govern if you’ve been shot or if you’ve had a stroke. But in the middle, there’s this large area that the Constitution doesn’t deal with, and what McCabe was basically saying is they were trying to fill the gap.
They were trying to stretch the 25th Amendment because that might be easier to invoke because all you need is Cabinet members first, and then you need two-thirds of both houses of Congress. But it would be utterly unconstitutional to do that, and it would be wrong as a matter of law and a matter of policy.”
Dershowitz explained that the constitutional framers considered including a pathway for removing a president who does “a terrible job,” such as never showing up for work or failing to make appointments, despite being fine physically and mentally.
Some of the framers wanted the language for impeachment to include “malpractice or failure to do duty,” but it wasn’t included because they feared it gave Congress too much power.
Still, the responsibility for oversight of the president and the hypothetical removal would still lie with Congress, not members of the Department of Justice, as McCabe seemed to think.
Because McCabe and his alleged accomplice, Deputy Attorney General Rod Rosenstein (who denies the 25th Amendment talks were serious), were only members of an executive agency and not Congress, some have compared this to a coup.
As IJR previously reported, Sen. Lindsey Graham (R-S.C.) compared McCabe’s claims to an “attempted bureaucratic coup” and vowed to “get to the bottom” of the situation.