The zombie 25th Amendment shambles forward

The 25th Amendment is far from dead.

Some time ago I made a speculative case that if and when the Republicans in Congress decide to ditch Trump as a fatal political liability, the 25th Amendment is a more attractive route than impeachment: it’s much quicker, and insulates the GOP more from its golem master. A lot of dirty linen on Russia would be aired in the long-drawn-out impeachment process, possibly implicating Republicans not part of Trump’s campaign.

The suggestion fell on deaf ears. Mark’s reaction was typical. But Trump’s behaviour keeps raising doubts over his mental capacity. For three:

    • In the recently leaked transcript of Trump’s conversation over the Nauru refugees with the Australian PM Malcolm Turnbull in January, Trump seemed simply not to understand Turnbull’s simple and repeated position.
    • In his famous sabre-rattling tweet, Trump threatened North Korea with “fire and fury” if it persisted with threats to the United States. Pyongyang promptly called his bluff, leading to a massive loss to American face. Tillerson and Mattis had to walk the tweet back, restating longstanding American policy that retaliation would follow actual attacks on US allies, which Kim is no more likely to engage in than his predecessors in the dynasty. But Trump repeated the language about retaliating to threats. The latest tweet includes:

      If he utters one threat, in the form of an overt threat . . . or if he does anything with respect to Guam or anyplace else that is an American territory or an American ally, he will truly regret it, and he will regret it fast.”

      • Trump’s media staff are required to present him daily with a folder of press cuttings and media screenshots with only positive coverage of him personally. This is on a par with Marie Antoinette playing at shepherdesses with her ladies-in-waiting at the Trianon. Contrast the Abbasid caliph Harun al-Rashid, who is said to have walked the streets of Baghdad in disguise at night to hear what his subjects were really saying about him: a legend that conveys the truth that autocrats, as much as democratic politicians, must keep an accurate watch on the real currents of popular sentiment. See also Kipling on the more impressive Akbar and a real bridge he built.

Are you still comfortable with dismissing the 25th Amendment out of hand? When the senior members of an administration start regularly ignoring their President’s public statements it’s time to ask in what sense he really is the President. Jonathan Chait:

It is humiliating for the world’s greatest superpower to disregard its president as a weird old man who wanders in front of microphones spouting off unpredictably and without consequence. But at this point, respect for Trump’s capabilities is a horse that’s already fled the barn.

If Trump is recognised in practice as unfit to carry out the office, there is a dangerous black hole of illegitimate authority at the heart of the republic. By what authority do Mattis and Tillerson countermand their disconnected chief? Monarchies are better equipped for this, as an incompetent is more easily replaced by a palace coup (Peter III of Russia), a regent (George III of Britain), or a vizier (various Sultans and Caliphs).

At the very least, Americans would be well advised to think harder about all the ways in which Donald Trump can be removed for office constitutionally. Unconstitutionally is easy enough, but the long-term damage of such a felonious confession of failure would be enormous. The thought is beginning to nibble at the consciousness of politicians, judging by the proposal of former Republican Senator from New Hampshire Gordon Humphrey and the bill he’s supporting, HR 1987.

Remember the ground rules under the 25th Amendment :

1. The Vice-President and a majority of the Cabinet sign a declaration that the serving President is incapable of carrying out his office. This is immediately effective, and the VP becomes Acting President.

2. If the President does not go quietly and challenges the declaration, the Congress adjudicates. Confirming the removal requires a two-thirds majority of both houses of Congress (contrast impeachment, which requires only a simple majority in the House to impeach and the same two-thirds majority in the Senate to convict).

The 25th Amendment can be invoked on its own or in conjunction with impeachment. The former is obviously much more difficult. The coup would require as a minimum the support of:
– Vice-President Pence;
– the majority and minority leaders of both the House and the Senate;
– at least eight members of the 15-member Cabinet (16 with the Veep).

Thirteen is too many for a secure conspiracy. Guy Fawkes’ had only five, and it was still blown. Any one of those sounded out could betray it to Trump, who can fire any or all of of the Cabinet. The conspiracy would have to be flexible on timing, and strike as soon it it suspected a leak. Fawkes had no such possibility, as the opening of Parliament was a fixed day.

Here we come to the first technical problem. The Amendment does not actually speak of the Cabinet, just “a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide” (it hasn’t). When the Energy Secretary is sacked, does that lead to a vacancy or is the acting deputy now the “principal officer”? Is a new nominee by Trump (Mark suggested Ivanka) the “principal officer” pending confirmation? Surely not. The acting deputy interpretation is better for a hardy Veep, as the outraged deputies would probably be on board. Vacancy will do as long as there is no loyalist rump. In the extreme case when all the department heads are fired, the Veep can argue “there’s just me left” and sign.

I don’t think these objections are very serious. The Vice-President’s interpretation does not have to pass muster in a con law class with Laurence Tribe or in SCOTUS; it has to be colorable enough on the day for the Secret Service to accept that the boss has changed. Ex hypothesi the President is already staggeringly unpopular, for the two-thirds majorities in Congress to be in play. The Amendment itself provides a perfectly clear dispute resolution mechanism.

My advice is to keep the actual certificate short. Something like this:

We the undersigned, constituting a majority of the principal officers of the executive departments of the government of the United States, together with the Vice-President, declare that Donald Trump, sworn in as 45th President of the United States, is no longer capable of exercising the functions of his office by reason of persistent mental incapacity and deep flaws of character. We have very reluctantly reached this judgement on the basis of numerous public acts of the President known to Congress and the public. We also take into consideration numerous private acts, some related to the public ones and others in the internal work of government, to which we severally are witnesses and on which we are ready to testify to Congress if required.

Accordingly, in accordance with the 25th Amendment to the Constitution, Donald Trump is forthwith suspended from the office of President and is required to leave the White House immediately. The Vice-President will, under the same Amendment, immediately take over all the responsibilities and prerogatives of the office as Acting President and inform the Congress and the public of the steps taken. All officers in, employees of and contractors to the federal government are enjoined to follow his orders and instructions alone.

Here we reach the second technical problem, the medical evidence. Incapacity for office is a political not a medical judgement, and medical details can be left out of the certificate. But assuming the fired President appeals to Congress, the coup plotters have to be prepared to make the case there and in the court of public opinion. Medical evidence will become important then.

It is impracticable for the coup plotters to secure a full and independent medical examination beforehand, as could be done for physical incapacity. That would have to follow the declaration; Trump’s only chance of getting back would be a convincing medical report. The plotters are not helpless. It’s true that a medical diagnosis from a distance would be unprofessional. But that isn’t needed, it’s the wrong test.

The question is not whether Trump should be committed to a psychiatric hospital coercively for his own protection and that of others, as with dangerous psychosis. He’s not crazy in that sense. It’s whether he is fit – not ideally fit, just reasonably competent – for a particular, well-known and very demanding job. Civilian and military pilots have to undergo regular medical checks, both physical and mental, to keep flying. These are serious; air force generals are eventually grounded, and rank does not get them off. Here’s an FAA page on pilot medical certification. Disqualifying mental conditions include bipolar disease, psychosis, and “personality disorder that is severe enough to have repeatedly manifested itself by overt acts.” That fits the bill perfectly.

It seem to me that running the government of a superpower is at least as demanding as flying a passenger aircraft, and similar standards of mental (if not physical) health should apply. The plotters need to get a letter signed by a bevy of aviation medical examiners to the effect that Trump’s overt acts raise a prima facie case that he has serious problems that would clearly deny him a flying certificate, subject to being cleared by a detailed clinical examination. The actual examinations would come later, and would end up in a classic conflict of expert testimony: which would probably be irrelevant to the political outcome.

A far bigger problem is that the Veep has to be cunning, fully committed and ruthlessly decisive. To me, Michael Pence does not look like John of Procida, the presumed mastermind of the Sicilian Vespers in 1282. Probably he would only act in extremis, pushed by others. So we need to think also about the role of the 25th Amendment in conjunction with an impeachment process, in which the Vice-President has no statutory role at all – he doesn’t preside over the Senate in the trial, CJ Roberts gets to do that.

The combinations of scenarios are perhaps too numerous and complex to be modelled. We can at least say that there are quite possible situations in which the Amendment could come into play.

  • Under the steadily building pressure of an impending impeachment, Trump could go off the rails entirely. Some of Nixon’s inner circle feared this was happening to him, and Nixon had a much more stable personality than Trump. It would be irresponsible of Pence and the Cabinet not to be prepared for this risk and the need for emergency action to remove Trump from the nuclear codes.
  • As impeachment nears, Republican Senators might go to McConnell and Pence and press them to cut the bloodletting short with a merciful (and less electorally damaging) 25th Amendment euthanasia of a doomed administration.
  • In the endgame Trump could refuse to follow Nixon and resign faced with certain conviction in the Senate. The 25th Amendment provides a powerful additional threat for the delegation conveying the bad news together with the red sherbet and the bowstring.

Are any readers changing their minds on this?

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web

9 thoughts on “The zombie 25th Amendment shambles forward”

  1. Questions to consider prior to removing Trump from office:

    1. Is it necessary to consider the likely reactions of the Trump true believers, who will go ballistic and will be urged to take up arms against the Establishment's usurpation of the man they voted for because of his antiestablishment credentials. Timing is everything. If he is removed while still enjoying high levels of support in his base, the resulting fire and fury could be very dangerous. If we wait until he has lost legitimacy in the eyes of a large portion of his base, the danger diminishes. And if Democrats have their fingerprints on his removal, they will be the main targets of the resulting wrath. I am talking about serious political violence in this country the likes of which we have never seen.

    2. This pertains to the wisdom of a strategy of containment of the danger. The Pentagon is now fully aware of what they have to deal with, so that there are checks in place against his starting any new wars; hell, he can't even get away with Tweeting transgender soldiers out of the military, much less kicking off a shooting war. So you want to consider the extent to which he is currently being isolated and neutralized by existing structures of the permanent state. If these safeguards become sufficiently robust, they can put limits on the harm he does to the country.

    3. Trump must not be allowed to inflict serious harm on the country, hence the importance of containment mentioned above. On the other hand, he must be allowed to inflict maximal harm on the Republican party, preferably to the point that they go the way of the Federalists. How much is he harming the Republicans, and how much is he harming the republic? If the former is large in relation to the latter, his continuance in office should be tolerated.

    4. He is harming the republic now. How much will that harm be reduced if Mike Pence is in his place in the Oval Office? If Pence is president, the isolating and neutralizing forces could dissipate, allowing a more efficient implementation of a fundamentalist antiscientific political program while allowing the GOP to avoid a reckoning. For example, Scott Pruitt will continue at EPA, Betsy DeVos will continue at education, and any benefits of removing Trump will be of a limited nature.

    5. This is not self-evident and I am most uncertain about it, but I am counting on the continued containment of the current provisional state by the mechanisms of the permanent state (point #2). If I am correct, the situation is this: Mike Pence and Donald Trump are about equal as sources of damage to the country (point #4). Donald Trump is much greater as a source of damage to the Republican party (point #3). And premature removal of Trump could lead to horrifying political violence if it is done while he still has his base thinking he is a savior (#1).

    In a nutshell: timing is paramount. Consider it well when planning either impeachment or any 25th Amendment remedies.

    1. The timing of either method of removal is contingent on the requirements of large majorities in Congress. These depend on Republican House members and Senators, and they won't move unless Trump has become more than just unpopular in the country, including with a majority of Republicans. The USA is still a long way from this. Trump has to inflict much more damage before it's a political possibility. Will the Republican party split, or stick with Trump regardless? Either way, it won't go well for them.

      One bad scenario is a Democratic sweep in 2018 followed by impeachment on party lines, with Republicans rallying round Trump: the Clinton impeachment in reverse. There probably won't be a Senate majority to convict, so I suppose Pelosi and Schumer would try to avoid this and constrain Trump by other means.

      PS: constraint by the permanent state may work for national security and possibly economic policy (though he hasn't really got started on wrecking that), but the destruction of the State Department, the EPA and civil rights enforcement at the DOJ has gone ahead full steam. Three more years of an assault on minority voting rights are in store. The USA could be a wasteland for Trump's successor.

    2. With regard to (2): Trump claimed he was kicking transgendered individuals out of the military, but he wasn't. There is nothing remarkable about this; Trump lies all the time. I see no reason to suppose that Trump wanted to kick transgendered soldiers out of the military, or that the permanent state would have prevented Trump from doing so if he wanted to.

      1. Can you really generalise about this across the maladministration? Trump's tweet campaign against Sessions has confirmed how weak Trump's position is against his Cabinet secretaries. He could fire Sessions, but would have a hard time getting the Senate to confirm a loyalist stooge. He has even attacked McConnell. The other GOP senators must be angry at the health care fiasco Trump and Ryan created for them. The other Cabinet members are under little discipline, as the same calculus applies, and they are effectively unsackable. Pruitt and Price are loyalist fanatics, and will pursue Trump's agenda because it's theirs too. Mattis and Perry pursue their own policies, opposed to Trump's, most visibly on transgender soldiers and wind turbines: Mattis is also trying to avoid a war with North Korea. Tillerson tries to go his own way, but can do little because he went along with crippling the State Department by staffing cuts early on. "Renegotiating" the Paris Agreement is official policy, but any serious effort would require a fully staffed diplomatic corps. I'm not clear what's happening on economic policy. Mnuchin and Mulvaney don't seem to be taking the same line on the debt ceiling, the next political crisis (assuming we all survive Korea). Settling policy conflicts at this level is one of the traditional functions of the President, but Trump can't do it because he does not understand the issues and can't put in the effort to learn.

  2. Seems to me the first order of business is to line up the required votes in Congress. When this is presented to the VP and cabinet, they will have little reason not to go along.

  3. Let’s face it: neither the 25th Amendment nor impeachment is going to work. Although I still feel that Trump won’t last for four years, I think that the more likely scenario is that he will point to his victories in the policy area and say that he’s done what he planned to do and is leaving it up to Pence to carry on and make them permanent. He got what he wanted: international attention, a world audience, and an adulatory audience – no matter that so many of them are bigots, they’ll keep the hotels and golf courses thriving.

    1. I see no basis to believe that Trump will ever tire of the need for international attention, a world audience, and an adulatory audience. He doesn't like "losers," so he won't go down without a fight. The hotels and golf courses are a means to feed his insecurities, not an end in themselves.

  4. There's another possibility that just requires the Veep and a suborned assistant: Get Trump to sign his own certification, conveniently slipped in among a stack of other papers for signature. Once it's been presented to congress, any claims that it was signed under false pretences would be part of the record for the psychological exams that would follow. (Yes, I'm mostly joking.)

    As for the power of the permanent state, it apparently varies. HHS has apparently cut off outreach for this year's ACA open enrollment and is devoting the money to making ads telling people not to sign up for insurance. (There's a GAO investigation, but the most that GAO could do is ask them politely to stop, or refer the matter to the Justice Department.)

  5. "Slipped in among a stack of other papers for signature" is supposed to have been the method for getting Elizabeth I's signature on the warrant for the execution of Mary Queen of Scots. if true, it was more likely an exercise in plausible deniability than a real trick. QE I was very focused and careful. The attack of the Dutch Sea Beggars on Brill in 1572 (a key date in the War of Dutch Independence) is an example of deniability that has even fooled later historians: the Beggars put to sea armed for bear, then returned to Dover – where they were barred from entering port because of the weaponry. So they went and seized Brill in Holland from the Spaniards instead. Nothing to do with us said Elizabeth and Walsingham.

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