It seems pretty clear that Trump’s cabinet is not going to invoke the 25th Amendment to remove him from power. For one thing, more of them seem inclined to resign than to stick around. It’s hard to get to cabinet together to declare the president incapacitated if you don’t have any cabinet left.
But there’s a more pertinent reason that this isn’t going to happen: The 25th Amendment wasn’t intended for a situation like this.
Remember when Ronald Reagan was shot, and had to be taken into surgery, and almost died? That was the quintessential scenario for invoking the 25th Amendment. George Bush assumed the power of the presidency until Reagan was out of surgery, awake and lucid, for the simple reason that Reagan couldn’t execute his duties.
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The problem here isn’t that Trump can’t execute his duties. He can. The concern is how he might execute them. There are mechanisms for dealing with that, but the 25th Amendment isn’t among them:
The 25th Amendment is not a substitute for impeachment. It is a necessary process to deal with a specific kind of dire situation, namely, when the president is by some medical emergency rendered unable to perform the duties of the presidency. It is meant for such situations as Woodrow Wilson’s stroke or presidential assassinations which, as our history illustrates, sometimes require life-saving emergency surgery or tragically find stricken presidents lingering a while before expiring. The amendment is not applicable to a situation in which the president is alleged to be unfit for reasons of character, or due to the commission of political offenses that may rise to the level of high crimes and misdemeanors.
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As laymen, we may believe the president is delusional — i.e., that he has convinced himself, irrationally, that he won the election (“by a landslide,” as he maintains), and that he is acting out perilously as a result, whether it is in yesterday’s incitement or last weekend’s bullying of Georgia’s secretary of state. We may also agree that Trump’s solipsism has dangerously deepened, to the point that he cannot see to the nation’s interests beyond his own. These, however, are not competent diagnoses of mental instability. That is not within our ken. Even experts in the field would hesitate to render a conclusion based only on what we can publicly observe, without a clinical examination. To endorse invocation of the 25th Amendment in this context would not only be wrong, it would create a hazardous precedent. Trump is physically healthy and functioning mentally. What we are witnessing is an elucidation of profound character flaws, not a mental breakdown.
It almost seems academic now, but if a majority of the cabinet declared Trump incapacitated, Trump would have the opportunity to dispute the finding. Then the cabinet could dispute back, and the whole thing could end up being settled by Congress.
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But it’s clear now that it would be unconstitutional. The mechanism for removing a president for fear he is misusing, or will misuse, his powers is impeachment. Congress could theoretically do that today with a majority vote of the House and a two-thirds of the Senate, but in reality it’s not that simple.
The Constitution requires articles of impeachment to be drafted by the House, and a trial to be held in the Senate, presided over by the Chief Justice. This should be fresh in everyone’s minds because we already had such a trial in 2019.
If the imperative to remove Trump from power is concern over how he will misuse his power in the next 13 days – if the situation is that urgent – holding an impeachment trial could actually have the opposite effect of enraging the president and making him more likely to give unconstitutional or abusive orders.
Could the Senate simply try to squeeze the whole thing into one day out of a sense of urgency? I guess they could try, but would anyone be happy about the precedent that would set?
There are growing calls for Trump to simply spare the nation the crisis and resign, putting an end to the chaos and setting up Mike Pence for the nation’s 46th – and by far shortest – presidency. (William Henry Harrison would surely be relieved if this happened.)
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A Trump resignation seems unlikely. The guy who posted this video on Twitter last night seems resigned to his fate but not inclined to exit the stage early:
— Donald J. Trump (@realDonaldTrump) January 8, 2021
As it stands, a nervous nation watches and waits, and hopes this isn’t going to get worse before it gets better.
