Elizabeth Warren: If Trump's cabinet thinks he's unfit to serve then maybe it's 25th Amendment time

A better talking point for Democrats than impeachment, no? They have a million liberals shrieking “Impeach!” at them right now, ignorant of the fact that there’s no good outcome politically for the party from that. If Dems do it, Trump will survive in the Senate and there might — might — be a backlash at the polls against them a la 1998. If they don’t do it, every last one of those liberal voters will feel some greater or lesser (probably lesser) temptation to stay home in 2020. No win.

The 25th Amendment is different. In that case, the onus to act isn’t on congressional Democrats, it’s on Trump’s own cabinet. Enough with the farking backbiting in the Woodward book and New York Times op-eds, cries Warren. If you’re so worried about Trump being a loose cannon then get off your asses and defuse him. You have the constitutional power. If that message takes root on the left, it’ll redirect all the heat Pelosi will soon be getting onto Republicans like Mike Pence and John Kelly instead.

Put up or shut up:

“If senior administration officials think the President of the United States is not able to do his job, then they should invoke the 25th Amendment,” Warren told CNN. “The Constitution provides for a procedure whenever the Vice President and senior officials think the President can’t do his job. It does not provide that senior officials go around the President — take documents off his desk, write anonymous op-eds … Everyone of these officials have sworn to uphold the Constitution of the United States. It’s time for them to do their job.”…

“What kind of a crisis do we have if senior officials believe that the President can’t do his job and then refuse to follow the rules that have been laid down in the Constitution?” Warren told CNN. “They can’t have it both ways. Either they think that the President is not capable of doing his job in which case they follow the rules in the Constitution, or they feel that the President is capable of doing his job, in which case they follow what the President tells them to do.”

Semantic games involving the word “capable” are the crux of all 25th Amendment fantasies. It’s simply not the case, as Warren suggests, that Trump’s deputies think he’s “not able to do his job.” What they believe (or seem to believe) is that he’s not able to do his job well. That’s a momentous difference for purposes of the 25th Amendment, which is in place to let the vice president step in when the president is physically or mentally disabled. You don’t invoke it when POTUS is lowercase-U unfit for office, you invoke it when POTUS is capital-U Unfit for office. If you stretch the idea of mental disability to include personality flaws like bad judgment, impetuousness, and a, ahem, propensity to shade the truth then you’re setting a precedent in which any future president whose cabinet has turned on him politically can easily find a fig leaf to execute a de facto coup.

Which would be ironic. The whole case against Trump among 25th Amendment fans is that his civic and policy instincts are more in line with a caudillo leading a banana republic, and therefore to spare America from this banana-republic future we should have … a junta seize power on flimsy constitutional grounds.

It wouldn’t work either. To hear Warren tell it, you’d think this is entirely within the power of Trump’s cabinet. It isn’t. The cabinet can act to hand power to the vice president by asserting that the president is unable to discharge his duties, but power reverts to the president if he insists that he can — which, of course, Trump would. If the VP disputes that, it goes to Congress to settle the issue. And in this case, it takes a two-thirds majority of both houses to hand power to the VP permanently. That’s a higher standard than for impeachment, which requires a simple majority of the House. You’re more likely to oust Trump going that route, in other words, than via the 25th Amendment. And of course, unlike impeachment, a failed attempt at using the 25th Amendment would mean utter chaos in the executive branch. If Pence and the cabinet made a move on Trump and Congress sided with POTUS, the administration as constituted would be untenable in the aftermath. Pence would have to resign, as would all of the officers who supported him. We’d be left with Trump effectively all alone. What could go wrong?

But of course, precisely because the 25th Amendment is such a heavy lift, the VP and cabinet would never dare consider it unless they had every confidence to believe Congress would side with them in the dispute. And there’s no way that’s happening with the Senate likely to be 50/50 or so at worst for the GOP next year. There won’t be anything like 67 votes in the upper chamber to remove Trump unless evidence of his “inability” to do the job is so overwhelming that even many Republican voters support removal. Realistically, the only way that’s happening is in a “true” 25th Amendment situation where Trump is disabled somehow.

So all of this is pie in the sky, just an empty talking point from Warren. But not a bad one if you’re trying to shift public focus from congressional Republicans to White House Republicans on what to do about POTUS.

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David Strom 12:31 PM on December 07, 2022