It appears that just as impeachment fever had started to break around the country, a 25th Amendment bug started going around.
A few weeks ago, the University of Chicago’s Eric Posner argued that the “conventional understanding” of the amendment should be “enlarged” to include instances where both parties “lose confidence in the president’s ability to govern.”
A Los Angeles Times reader asked, in a letter to the editor, “Why have a 25th Amendment to the U.S. Constitution if we refuse to use it” when “President [Donald] Trump wrecks everything in his path?”
The chatter is loud enough that, reportedly, Trump-whisperer Steve Bannon privately warned the president that opponents might try to use the 25th Amendment as a way to oust him. Trump reportedly asked him, “what’s that?”
He’s not the only one looking up the amendment, but if, as I’ve argued, impeachment would be a mistake, removing Trump via the 25th Amendment would be a disaster for our system. For Trump’s agonists, there’s an obvious solution; one they seem intent on avoiding: If you can’t stand the president, then the proper fix is electing someone else.
Sandwiched between the prohibition against poll taxes and right to vote for 18-year-olds, the amendment detailing presidential succession fills a gap in the original Constitution. Until 1967, there was far greater uncertainty over the question of when and under what circumstances a president could be succeeded in office.
The issue of “disability” of a president “and who is to be the judge of it?” was raised in the Constitutional Convention in 1787 by Delegate John Dickinson of Delaware, but left unanswered. The first presidential succession ambiguity arose when President William Henry Harrison died a few weeks after taking office and former Vice President John Tyler struggled to be seen by critics as the appropriate successor - throughout his presidency, critics referred to Tyler as “His Accidency.”
Members of Congress pondered the succession question after President Dwight D. Eisenhower suffered a stroke. They ultimately, if not exhaustively, dealt with the issue via the 25th Amendment after the assassination of President John F. Kennedy. There was finally a sense of urgency as members realized that, had Kennedy lived on, incapacitated, it was not clear that Vice President Lyndon B. Johnson could assume office.
What entices Trump critics now, however, aren’t the amendment’s provisions in Section 1 and 2 for the orderly succession of power “In case of the removal of the President from office or of his death or resignation.” Nor is it Section 3, which allows for temporary transfer of presidential authority when the president “transmits” his own “declaration” of temporary disability (as when George W. Bush underwent a “routine colon examination” and invoked the amendment to allow his vice Dick Cheney to briefly take over).
Rather, it is Section 4′s provision for a less orderly, and permanent, removal from power. This prospect has been floated by those who acknowledge that impeachment in the House of Representatives is highly unlikely without a clear “high crime” or “misdemeanor” - not to mention a two-thirds majority needed for conviction in the Senate. Impeachment, though, is a constitutional cake walk in comparison to a Section 4 removal.
Section 4 has, essentially, two avenues for dragging a president from the Oval Office. First, there is the mutiny option. A vice president and a majority of the Cabinet can agree that the president is “unable to discharge the powers and duties of his office” and notify Congress that the vice president intends to take over. If Vice President Pence could get eight Cabinet officers to sign a letter to that effect, he would immediately become the “Acting President.” But if the president then declares to Congress that “no inability exists,” Trump could resume his powers.
Pence and the rebellious Cabinet would then have to send another declaration within four days to the President pro tempore of the Senate and the Speaker of the House that says, more or less, don’t believe a word, he’s unfit. Once Congress had the second declaration, if not already in session, it would have 48 hours to assemble to debate the issue. It would then have 21 days to vote on the president’s fitness. To remove the president, two-thirds of both houses would have to agree. If Congress did not vote within 21 days, the president would get his power back.
Impeachment only requires a majority vote in the House and doesn’t need the cooperation of the vice president in addition to a two-house, two-thirds vote. In a climate where members of Congress struggle to cobble together a simple majority on replacing Obamacare, a supermajority to remove Trump seems a tad optimistic, and politically risky: Cabinet members would do well to remember Emerson’s adage, “Never strike a king unless you are sure you shall kill him.” With a president made famous by the catchphrase “you’re fired,” there’s not much doubt as to one’s political future if you sign a Section 4 declaration and fail.
Which brings us to option two. Section 4 states that a decision to remove the president could be made, alternatively, by “such other body as Congress may by law provide.” This is the course Rep. Jamie Raskin, D-Md., has sought with proposed legislation to create an “Oversight Commission on Presidential Capacity”-a body to decide if the president is physically and mentally fit. But even in the unlikely event that Republicans supported this approach, the process still calls for the vice president’s assent, and it’s even less likely that Pence would stake his political fortunes on dumping Trump.
More importantly, any disability review commission would be tasked with finding a mental or physical disability - unlikely. A group of self-declared “mental health professionals and members of the public” called Duty to Warn recently marched to call for a 25th Amendment removal on the supposition that Trump has an incurable malignant narcissism and “is too seriously mentally ill to competently discharge his duties as the president.” Narcissistic Personality Disorder is defined as “grandiosity, a lack of empathy for other people, and a need for admiration,” which, indeed, describes Trump. But let’s face it: If we started removing public servants because they were narcissists, the nation’s Capital might become a virtual ghost town. In D.C., the question isn’t who fits that definition? but, who doesn’t?
Moreover, declaring the president unfit without an examination runs counter to the American Psychiatric Association’s “Goldwater Rule” that doctors cannot express professional opinions about public figures they have not personally examined.
Attempting to discern incapacity, particularly at a distance, is a slippery slope. Psychology Today reported last year that one study of the first 37 presidents suggests half of them experienced some form of mental illness. Kennedy had a number of physical ailments that were hidden from the public and intermittently took a secret regimen of drugs prescribed by doctor sometimes called “Dr. Feelgood,” but few would suggest that he was not up to the job of president of the United States.
For many, Trump’s routine tweets and taunts, and his untoward exchanges with more than one grieving gold star family, seem not just un-presidential, but unhinged. I have been critical of many of those comments and find them deeply disturbing. The standard, however, is whether Trump is “unable to discharge” his duties, and there is no evidence of a clinical condition that renders Trump unable to perform them.
When no less a figure than Sen. Bob Corker, R-Tenn., an influential Senate committee chair once seen as a Trump ally, refers to the White House as “adult day care,” or when Secretary of State Rex Tillerson reportedly calls the president a “moron,” many are hoping that core Republicans are looking for an exit ramp. However, Section 4 is not about childish or boorish presidential comportment. It is about a disability that prevents a president from carrying out capable decision-making. The Constitution only requires Trump to be able to discharge his duties; not necessarily to discharge them well. The fact is that Trump exhibited most of the traits he exhibits today during his campaign and his long business and television careers. He is as he advertises and slightly more than one-third of Americans still support the president. For them, the controversy is about style, not sanity.
Absent more compelling evidence of incapacity, Trump’s continuation in office will remain a political, not a constitutional condition, triggered by the very cause that is also its cure: a presidential election.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.