Why the 25th Amendment won’t save us

Since an unsustainable situation won’t go on forever, it seems that something will have to put an end to the Trump (mal)Administration. But what?

He could be removed from office by impeachment and conviction, and that’s obviously the right course of action. But – for the moment – it’s equally obviously infeasible politically.

He could also – once Mueller has done his job – be indicted for and convicted of a variety of crimes, but there’s some doubt as to whether a sitting President can be indicted. (I think he can, since the Constitution does not protect him as it protects Members of Congress, but there’s no precedent and therefore no authoritative statement of the law.)

On the other hand, he could clearly be indicted for state crimes by state prosecutors, and the New York AG might have the nerve to do it and the skill to obtain a conviction. That little-discussed option might be the actual outcome, but it’s not on the horizon right now.

All this has led a number of smart people (James Wimberley,  Ross Douthat) to start thinking about the Twenty-fifth Amendment option (hereinafter “25A”).

Short version: If the Vice President and eight of the fifteen Cabinet officers determine that the President is “unable to discharge the powers and duties of his office,” they send a notice of that finding to the Speaker and the President Pro Tem, and the Veep immediately assumes those “powers and duties.” But not permanently; the Veep is only the “Acting President.” When and if the President decides he’s not incapacitated, he sends a note saying so to the Speaker and the President Pro Tem, and reassumes his powers, unless the VP and the cabinet majority challenge that claim. In case of a challenge, Congress decides: unless within 21 days two-thirds majorities in the House and Senate vote that the President is still out of it, he takes back his powers.

All that is ugly enough – after all, Donald Trump is no more “unable” to be President now than he was the day he was elected, and 25A was not designed as a check on the folly of the voters, and the possibility of a pre-emptive purge of the Cabinet to prevent such a coup would be comical if only it were happening in someone else’s country – but you could still see how it could provide a way out.  Better yet, the threat to invoke 25A (coupled with the promise of a pardon?) could be used to force Trump to resign, though again once the threat was made he could frustrate that plan simply by bouncing a sufficient number of cabinet officers and appointing his relatives to replace them.

But there’s a problem. Even Trump did not object, or if he tried to reclaim his powers and two-thirds of each House of Congress decided he was still ga-ga, the result would not be to remove the President from office the way conviction on impeachment removes him from office. All that means is that the VP hangs on as Acting President, executing the powers and duties of the Presidency until the President gets his mojo back. Nothing I can see would prevent an involuntarily displaced President from invoking the re-assumption process anew, forcing a new set of Congressional votes, every time his attempt to reclaim power was rejected.  Can’t you imagine an enraged Trump doing just that? Or, rather, can you imagine Trump not doing just that? As far as I can tell, he never hesitates between getting mad and getting even: he always does both.  Not only would that be a disaster for the Republic, it would be a catastrophe for the Republicans.

“Well,” I hear you say,  “So much the better. Couldn’t happen to a nicer bunch.”

Well, yes. But now it is time for a little game theory. If the 25A route isn’t good for Republicans, then they won’t go down that path. Worse, if it’s obviously not good for them, they can’t even effectively threaten to go down that path to force a resignation, because the threat wouldn’t be credible.

So I have no idea what’s going to happen. Trump could resign. He could be impeached and convicted on impeachment. He could be indicted and convicted either in federal court or in a state court. A chariot of fire could take him up in a whirlwind to Heaven. Satan might come to collect his soul under the terms of their old contract. He might – who knows? – even serve out his term.  But – short of something like a stroke leaving him with aphasia – I don’t think he’s going out under 25A.

Footnote  The results of the Montana and Georgia special elections (and even the long-shot in South Carolina) will shift the odds on Trump’s serving out his term.

Responses to comments Nice to see RBC commenters hard at work, reminding us of what a comment section was like before “comment section” took on its current meaning. Two substantive points worth addressing:

  1.  Yes, it would be fine to get the right wing (and Trump himself) suspicious that Pence is one of the anti-Trump leakers. The scary part is that it might be true.
  2. As to whether Trump could replace the cabinet to prevent being booted: If I read the text correctly – and of course none of this has been tested in court – a cabinet officer doesn’t have to be confirmed to count among “the principal officers of the executive department.” Sally Yates as Acting Attorney General, for example, had all the powers of a Senatorially confirmed AG. So I believe – subject to correction from those more learned than I – that Trump could fire Mattis tomorrow and immediately appoint Ivanka as Acting Secretary of Defense.

 

 

 

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

19 thoughts on “Why the 25th Amendment won’t save us”

  1. You're right that it's highly unlikely the 25th will ever come into play. It is, however, an answer to certain hyperventilating NYT columnists who fear that Trump will "press the nuclear button" and kill us all. In fact, there's no button to push: before launching rockets Trump would have to decide what to launch them AT. That means he'd have to talk to people. Which means his team would have a heads-up. Which in turn means they could invoke the 25th. In other words, the only advantage to anyone of the 25th is that it can be used to neutralize a president in a matter of hours. Otherwise, impeachment is the normal course. Unlike the 25th, it doesn't require a 2/3 vote in the House to stick. (I hadn't thought about the possibility of a suspended president demanding vote after vote—a tip o' the hat to you for that one.)

  2. Also, the VP has to initiate the use of 25A, and would be subject to suspicions of conflicts of interest as the person who stands most to benefit.

    Speaking of which, isn't it about time to seed some suspicions in far right circles that the "silent coup" that Rush Limbaugh is worried about is happening right now, only that it is Mike Pence and not the "Democrat party" which is behind the leaks and general chaos at the White House? Shouldn't we be hearing whispers that Pence is the leaker who is giving all the dirt to the Washington Post and other media?

    Pence is in the Oval Office all the time, and he is witness to almost all of the major problems that have arisen in the White House for the past four months. He took the nomination for VP knowing full well that Trump was likely to run into some major problems once he got to Washington and started trying to play in the big leagues. He (and the Republican Establishment) knew all along that Trump was unfit for the office he now holds, but no problem–he energized the low information voters the Establishment needed to win the election, with the aim of getting Pence in place to sign all the tax cuts and deregulation measures they have wanted all along.

    Come on, right wing conspiracy theorists–Mike Pence is the source of all the leaks that have engulfed Donald Trump in chaos. If Trump goes, he gets to sit behind the desk that is reserved for the president. He, as a government insider, knows how to work the machinations of the "Deep State" better than the outsiders who won the election but were never intended to wield actual power for long. The FBI and CIA were in on the plot from the beginning and were working with Pence for more than a year to deceive and manipulate the Real Americans into putting them in power.

    Paranoids of the world, unite! You have the greatest conspiracy theory or our time available for your use at no charge. Paging Alex Jones!

        1. I suspect the Republican leadership are all in on laundering of Russian money funneled to the campaign.  Trump being somewhat of an outsider probably has plausible deniability despite his own people's involvement.

    1. I'm trying to figure out a way to whisper my extremely well-sourced information to Alex Jones. The information? Trump is behind the removal of Confederate and white supremacist monuments going on in Richmond, New Orleans and elsewhere. Someone, probably Jeff Sessions, who's the greatest friend to black folks and enemy of white supremacy ever to serve as AG, put the bug in Trump's ear. "Mr. President, why aren't there any statues of the greatest president in American history? There are thousands of Obama statues, but none of ratings machine DJT."

      "I hadn't thought of that. What's going on Jeff?" "Well, the cities claim they don't have room to display them prominently in squares and on major boulevards because they're already clogged with monuments." "Obama monuments?" "No, these guys are way more obscure than Obama. I'm talking about some guy named Robert E. Lee, a dude named Jefferson Davis, and some real nobody — 'P.G.T. Beauregard' or something." "You're right, Jeff, I never heard of any of those losers. And they have statues?" "I know, President Trump, it's ridiculous. That's why you signed an executive order demanding that cities remove the monuments and replace them with monuments to you and your family." "I did?" "Yes, and Mexico's going to pay for them."

      "How are our statues coming, Jeff?" "Great! The one of Ivanka will stop traffic. The one with Don Jr. and Eric will stop clocks." "I can't wait to see them." "You will. It would help a lot if you could take care of the thugs trying to protect the existing monuments." "Consider it done."

      There you have it. As I said, this info comes from deep inside, and my investigators are turning up more stuff all the time. Trump is betraying the white race. We wanted a president who would cozy up to Russia, ban Muslims and restore the glory of the South. We got a race-traitor who bows to the Saudi king, glorifies Egypt's Muslim dictator, eases up on China, won't build a wall on the border, and destroys Confederate monuments. That, my friends, is the falsest false flag in US history.

  3. A small point: The President cannot appoint cabinet members. He can nominate them for the Senate to confirm.

    1. …and a small counterpoint: He can't appoint the new ones unilaterally, but he can fire the old ones, effectively changing the balance of power under the 25th.

      1. No. This is a coup. Pence convenes the Cabinet at midnight when Trump is away golfing. He gets the vote and signs the declaration at 1 a.m. At 1:01 he is Acting President and Trump can't fire the Cabinet officers or anybody else. This assumes that at least somebody in the plot has the necessary guile, ruthlessness and discretion and can convince the others to keep their mouths shut and Twitter feed off. Dithering and leakage would be fatal. This is a tall order, but it's been done, see the Sicilian Vespers in 1282. Pruitt may just fill the shoes of John of Procida.

  4. I wrote a response yesterday but the software ate it.

    I don't buy the repeated challenges to a 25th declaration of incapacity by the suspended Trump. Why should Ryan, Pelosi, McConnell and Schumer take any notice? They – and the large majorities in the House and Senate – have ex hypothesi crossed the Rubicon, burnt their boats, you pick your metaphor. Pence is Acting President, also with burnt boats, and can call in the moving van and security to escort Trump and entourage out to an ill-deserved retirement. Mark has not addressed the large political advantages to the Republicans of going the 25th: speedy, less revealing, and blame-shifting. The political costs to the Republicans would be from the fact of ditching Trump, not the method.

    The blame-shifting does not suit the Democrats, but simply refusing to vote the 25th on transparent grounds of electoral advantage would not go down well. In Schumer's or Pelosi's shoes, I would trade support for a 25th vote for a guarantee of a full and independent inquiry, like the 9/11 one.

    The end-game either way would, as with Nixon, involve pressure on Trump to resign instead of being formally defenestrated. (That actually happened to Habsburg bigwigs in Prague in 1618). What carrots should be offered at that point? Presidential library? A pardon? Full service pay and pension?

    Mark also argues that Trump isn't crazy enough. This is a political not a medical judgement. Obama correctly described Trump before the election as unfit to hold the office. That judgement has been amply confirmed and should be sufficient.

  5. The most counterproductive thing progressives can do is talk up impeachment before there is a smoking gun. It just causes many in Congress to dig in.

    As for Trump repeatedly demanding votes after removal under the 25th, it shouldn't take many votes before impeachment would begin in earnest.

    1. Not that it really matters (because it's so unlikely to come to this), but if there were the circumstances and political will to use the 25th in the first place, there would likely also be the political will to use credible threats of prosecution and imprisonment to negotiate an agreement not to contest the removal. (Albeit it's not clear that being in prison is a bar to resuming office.)

      1. Good point. The two threats work together. Whichever is given priority would depend on the Republican calculation of pros and cons at the time. The exception is if the Democrats refuse to go along with the 25th because it's a stretch and insist on impeachment. That would be a very risky line indeed for Pelosi and Schumer to take, as it could block the whole Trexit scenario.

      2. Good point.  Maybe just tell him he will lose all chance at a pardon if he contests the removal.

  6. I need to look for the smelling salts. The fainting version of me thought he saw somebody refer to Ross Douthat as a "smart person". But the rational part of my brain knows that nobody could possibly have said that.

    1. I wasn't too happy about the pairing either, but fair enough. Reminded me of one end-of-term evaluation by my politics tutor at Oxford, an average scholar but a wise and perceptive teacher: "Mr Wimberley is a clever man". It wasn't a compliment.

  7. The other thing about the 25th, if Congress can't appoint it's own committee of hatchet men to replace the eight Cabinet votes, why expect eight Cabinet votes from the crew that's currently there? Trump's Cabinet is exclusively staffed by people who have no idea that statesmanship is even a thing, let alone having a clue about how to be statesmanlike.

    1. How many of the Cabinet count as hardcore racist/misgynist/populist Trumpistas? Sessions, no doubt. The others look to me more like the usual GOP movement conservative suspects. Perry and Tillerson aren't even on board with the coal jobs scam. Sure, they will only jump ship to save their skins. But that's true of the GOP in the House and Senate.

  8. My personal hunch is that, when push comes to shove, for Republicans party trumps everything. Trump will serve out his term, and may well be reelected and serve out two terms; because for Democrats and progressives, party does not trump everything, and we could have as much trouble uniting behind a challenger as in 2016–hampered by an administration actively devoted to suppressing the vote, by violence if necessary.

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