In a recent op-ed in the Huffington post, Ron Fein, Free Speech For People Legal Director and co-author of The Constitution Demands It, discusses Trump’s capacity to serve and the “Trump Defense.”
Citing Bob Woodward’s new book and numerous claims from Trump’s staff and lawmakers, Fein discusses the possibility of Trump’s incapacity to serve as president. But focusing on his mental state as grounds for removal from office may have an unexpected, negative consequence:
“We have never tested whether incapacity alone is grounds for impeachment. And under the over-criminalized view of impeachment promoted by congressional leaders of both parties, Congress’ impeachment power takes a back seat to a prosecutor’s decision of whether to charge Trump with a crime. But that might create an even more perverse consequence, in which Trump’s incapacity could be used as an argument against impeachment.
Call it the Trump Defense. Trump’s lawyers may argue that he is incapable of forming the necessary state of mind (mens rea) to commit impeachable crimes such as obstruction of justice or conspiracy to violate election law.”
While Fein acknowledges that a jury may not buy the “Trump Defense,” he goes on to emphasize that it should not be relevant at all:
“The lesson is that impeachment does not require a criminal mental state because impeachment is not about crime or punishment ― it is about protecting the country.
The Trump Defense’s logic is ridiculous: The president’s mental incapacity means no criminal charges, and no criminal charges mean no impeachment. Yet by abdicating its constitutional responsibility of impeachment, Congress leaves the door open to this absurd gotcha.
The solution is simple: Congress needs to stop confusing impeachment with criminal prosecution — and stop using Mueller as an excuse to avoid its constitutional duty to conduct its own impeachment investigation. The framers of the Constitution entrusted the impeachment power not to a prosecutor but to Congress. And allowing Trump continued access to power as he spirals further into madness might be, as Madison prophesied, fatal to the republic.”
As Ron Fein asserts, Congress must begin its own impeachment investigation of President Trump now. We do not need to wait for Mueller’s criminal investigation, nor do we need to focus on Trump’s mental state. We have all the evidence we need to begin an investigation and Congress must act.