The zombie 25th Amendment shambles forward

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 25^th 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 25^th 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 25^th 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 25^th 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 45^th 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 25^th 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 25^th 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) 25^th 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 25^th 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?