Unless you’ve been in a coma for the past week, you are no doubt aware of the Anonymous OpEd piece published by the New York Times last Wednesday, September 5th. Anonymous claims to be a ‘senior official in the Trump administration’ who is part of a group within the White House attempting to quell the worst of Trump’s inclinations. One line in the letter stirred a great deal of conversation:
“Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president. But no one wanted to precipitate a constitutional crisis.”
Early on in the Trump presidency, I mentioned the 25th Amendment a few times as a possible means for removing the madman, and at that time, I saw some hope. But, just as I have cautioned you that impeachment is absolutely not going to fly, I must now do the same regarding the 25th Amendment.
A quick explanation of how the 25th Amendment is supposed to work:
Under Section IV of the 25th Amendment, the vice president and a majority of the cabinet can send a letter to the president pro-tempore of the Senate and the speaker of the House notifying them that the president is “unable to discharge the powers and duties of his office.” When that happens, the vice president will assume the role of “acting president” and the president is (temporarily) relieved of his duties. The president can notify congressional leadership that no incapacity exists and unless the vice president and the majority of the cabinet disagree, the president will reassume his duties. Otherwise, two-thirds of both houses of Congress would be required to vote to permanently bestow the title of “acting president” upon the vice president.
The 25th Amendment was intended to deal with a situation in which the president was incapacitated but still alive. Imagine a scenario in which the president has suffered a massive stroke. The stroke has put him in a persistent vegetative state. He is unable to discharge the office but, because he has not died, the vice president cannot assume the presidency in the normal manner. Prior to the passage of the 25th Amendment in 1967, there was no constitutional remedy for such a situation. Such a scenario is real—such a medical crisis happens to Americans every day—and if it afflicted a president, the stakes would be profound.
The intent of the 25th Amendment was not to remove presidential powers because people disagreed with the president or because they questioned his judgment. It could be argued that Trump’s behaviors and actions in office suggest that he is suffering from some mental defect or other psychological disorder that renders him “unable to discharge the powers and duties of his office.” However, the president’s physicians have not declared that to be true, nor are they likely to. We may disagree with Trump, question his motives, or even question his competence in office, but short of a medical assessment saying otherwise, he would not be considered to be incapacitated.
Look at Mike Pence last Sunday, making the rounds of the morning talk shows and licking Trump’s boots at every stop. Is this a man who is going to invoke the 25th? Check out his cabinet members … find even two who would be willing to take the risk, let alone a majority. And think about this … if they did grow a pair of cojones and take that first step … all Trump would have to do is fire the lot of them. Ridiculous, you say? Remember who we’re talking about here.
And then, even if all the above obstacles were overcome, we come back to the same argument I made to prove that an impeachment is not feasible: it requires a 2/3 majority in both chambers of Congress. The Senate, again, will be sort of a democratic majority even if every single seat that is open in November is filled by a democrat. The republicans in Congress are not going to risk their necks, their ‘good standing’ with their voters to remove Trump from office. Period.
So, no, Trump will not be impeached nor removed via the 25th Amendment in the foreseeable future. My best guess is that, barring a true meltdown such as him removing all his clothing and running naked through the White House brandishing a flaming sword and screaming, “Burn, baby, burn!!!”, he will be in office until 20 January 2021. The only way I can predict that changing is if the 36% or so who still support Trump can be convinced to listen to reason, to consider facts, to realize the dangers of him remaining in office. As I have noted before, the republicans in Congress will move against Trump just as soon as their voters tell them to, and not one moment sooner. It’s gonna be a long 783 days until election day 2020.