There's no "25th Amendment solution" for removing Trump

A bad idea, but the doggedness in trying to find a creative institutional way to depose Trump is impressive. I thought the right learned its lesson about that at the GOP convention and the left learned its lesson after the electoral college. Ross Douthat offers a different route for NeverTrumpers: Why not have Mike Pence and Trump’s own cabinet remove him under the 25th Amendment?

The Trump situation is not exactly the sort that the amendment’s Cold War-era designers were envisioning. He has not endured an assassination attempt or suffered a stroke or fallen prey to Alzheimer’s. But his incapacity to really govern, to truly execute the serious duties that fall to him to carry out, is nevertheless testified to daily — not by his enemies or external critics, but by precisely the men and women whom the Constitution asks to stand in judgment on him, the men and women who serve around him in the White House and the cabinet.

Read the things that these people, members of his inner circle, his personally selected appointees, say daily through anonymous quotations to the press. (And I assure you they say worse off the record.) They have no respect for him, indeed they seem to palpitate with contempt for him, and to regard their mission as equivalent to being stewards for a syphilitic emperor…

Meanwhile, from the perspective of the Republican leadership’s duty to their country, and indeed to the world that our imperium bestrides, leaving a man this witless and unmastered in an office with these powers and responsibilities is an act of gross negligence, which no objective on the near-term political horizon seems remotely significant enough to justify.

The key section of the 25th Amendment is Section 4, which gives the White House a way to empower the VP when “the President is unable to discharge the powers and duties of his office.” If the veep and a majority of the cabinet agree that the president is incapacitated, they can send a letter to the House and Senate saying so, at which point the vice president becomes acting president. Once the president is no longer incapacitated, he can send his own letter to Congress informing them of that, at which point he gets his powers back — unless the VP and a majority of cabinet send another letter insisting that, no, he’s still incapacitated. At that point Congress gets to decide. If two-thirds of both houses say the president’s incapacitated, the VP becomes president.

The point of the amendment, obviously, is to allow for a transition of power when the president is debilitated but not dead — desperately ill, suffering from dementia, etc. Think “late-term Woodrow Wilson.” The “25th Amendment solution” suggested by Douthat calls for defining “incapacity” so broadly as to make immaturity and poor judgment grounds for removal. What he’s imagining here, as Charles Cooke notes, is a coup. And not just any coup but a coup of a newly elected populist president by mostly establishment elites:

Well, what would this — an actual coup – represent? And how would that look to the people who would believe that Trump had been removed by the very elites he had set out to vanquish?

I have for a long while believed that Trump is unfit for office, and, as such, I do not disagree with all — or even most — of Douthat’s characterizations. In addition, I continue to think that this president is his own worst enemy: The press is hostile, yes, but Trump seems utterly hellbent on making things difficult for himself. Nevertheless, at this point in American history — a point at which large numbers of voters in both parties believe that the system is “rigged” – for the president to be undone by a small group of establishment Republicans and replaced with a career politician would be disastrous for the culture. If it turns out that Trump has done something terrible while in office, he should be impeached by the usual process. If he finds that he no longer likes or wants the job, he should resign. But a legalized coup on the nebulous grounds of “witlessness” would be an invitation for discord the likes of which we have not seen in a while.

Quite so. The best you can say for this idea is that those voting to remove Trump would at least be intimates, his own VP and advisors, which wasn’t the case with the Republican delegates at the convention or the electors in the electoral college. It’s one thing for some anti-Trump schmo from a state Republican party to tell you Trump’s unfit to govern; it’s another for a loyalist like Mike Pence, who sees Trump operate behind closed doors every day, to tell you. The irony of NeverTrumpers pushing a “25th Amendment solution” to Trump’s presidency, though, is that he’s behaving exactly as we thought he would, and many of us haven’t been shy about reminding Trump fans of that over the past 10 days. This is who he was during the campaign. There have been no surprises. Nothing has changed. That being so, what’s the argument for using the 25th Amendment, which was enacted to deal with sudden, dramatic changes to the president’s health? Even if you agree with Douthat about all of Trump’s deficiencies, the fact remains that they were apparent last year and Americans chose to elect him anyway. As Kevin Williamson said to Republicans the day after the Indiana primary, warning of the chaos to come, “Remember, you asked for this.” We asked for it and we’re getting it. Voters have rendered their verdict on whether Trump’s behavior is fit for office. By what right do Mike Pence and the cabinet deny us our reward?

Another thing. The standard for permanent removal under the 25th Amendment is higher than the standard for impeachment and removal. Impeachment requires a simple majority of the House and conviction by two-thirds of the Senate; the 25th Amendment requires a vote of two-thirds of both houses to deem the president incapacitated. By going this arcane route, you’re undertaking a heavier procedural lift than you would via the traditional route. Removal under the 25th Amendment is more dubious politically too, as Cooke notes, since incapacity is more of a judgment call than whether the president committed a crime. How would you even litigate it? Pence’s team submits testimony from a bunch of doctors asserting that Trump has a dangerous personality disorder, Trump’s team submits testimony from a bunch of doctors countering that he doesn’t, “he’s just really shallow,” and then what? You’d have an easier time selling the public on removal for obstructing justice than you would on removal for “immaturity” or whatever. And, as I say, you’d need fewer votes in the House to boot. So why mess around with the “soft coup” option?

I’ll give Douthat this, though. Nowadays there’s a paragraph or two in virtually every story about the White House that pulls you up short and makes you wonder where the line between shallowness and infirmity begins and ends. Exit quotation via Reuters about Trump’s natsec briefings: “National Security Council officials have strategically included Trump’s name in ‘as many paragraphs as we can because he keeps reading if he’s mentioned,’ according to one source, who relayed conversations he had with NSC officials.”

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David Strom 12:01 PM on October 07, 2022