Below is my USA Today column on the call to use the 25th Amendment to “remove” President Donald Trump. As a threshold value, the 25th amendment does not “remove” a president, but instead shifts his powers to the vice-president. The only way to remove a president from office is through impeachment. In the 25th amendment, the Vice President is referred to as “acting” in his capacity. However, “remove” is a common way of expressing the substitution under the 25th Amendment. The main problem is not the nomenclature, but the standard. Section 4 Measures as part of the change are aimed at physical or mental disabilities. Such evidence may exist but has not been made public. Vice President Mike Pence would have to disclose such evidence of mental illness or irrationality in the President. The speech alone is not a basis for “changing” the 25th Amendment to the Constitution.
This week, Spokeswoman Nancy Pelosi continues to call for the 25th amendment or impeachment to be invoked as an alternative course of action. You and others have preferred the 25th amendment due to the limited time left before President Trump’s departure. Neither the time nor the text for action on the 25th Amendment supports these efforts. More importantly, the use of the 25th Amendment without such clear evidence of intellectual disability could lead to even greater instability in our system.
Here is the column:
Herman Wouk’s novel “The Caine Mutiny” is an American classic of a crew’s efforts to remove a mentally unstable captain. Even before the uprising in Congress, the movie came to mind when President Donald Trump blocked a clumsy diatribe about how the election was stolen. If you replaced the word “choice” with “strawberries”, you had the speech of Captain Philip Francis Queeg in the novel. However, there are reportedly some within the administration looking to push for some kind of twilight elimination as part of the 25th Amendment.
The problem is the same as that identified in “The Caine Mutiny”: “Remember, if you can – there is nothing, nothing more precious than time. You probably feel like you have an immeasurable amount of it, but you don’t have it. “
This is not the first time the 25th Amendment has been raised. Almost immediately after his inauguration, Democrats and the media demanded Trump’s removal through impeachment or the 25th Amendment. Various liberal psychologists commented on alleged mental illnesses without an alleged investigation.
The hostility towards Trump led to the abandonment of the “gold water rule”. The American Psychiatric Association passed the rule to deter doctors from making unethical diagnoses of people without evaluating them. The reason for the rule was a vicious campaign involving psychiatrists claiming Barry Goldwater was mentally ill in order to influence the election of President Lyndon Johnson.
The danger of such claims is obvious. The 25th amendment was designed primarily for the physical handicap of a president. It is amazing that up until 1967 our Constitution contained blatant uncertainty about how to deal with a president suffering from an incapacity for work.
It wasn’t something the Framer didn’t think about. The matter was raised in 1787 by Delegate John Dickinson of Delaware in the Constitutional Convention but not dealt with. The problem remained unresolved when President William Henry Harrison died a month after taking office. It was not until President Dwight Eisenhower suffered a stroke that serious efforts were made to make a change – a move that accelerated after the assassination of President John F. Kennedy.
Various presidents have taken advantage of the change to temporarily transfer power during operations or brief incapacities. The nuclear option under Section 4 was never used.
Doing this with a perceived intellectual disability is a particular concern. As the Goldwater controversy shows, there are always psychiatrists who are ready and eager to declare a president insane, even from a distance. Politicians often portray their opponents as mentally unbalanced, as only a crazy person will take the opposite view on some issues. If we were to remove a president on this basis, it could open the floodgates for such moves in the future.
Democrats vividly demonstrated this danger with impeachment calls for topics ranging from Trump’s criticism of the NFL knees to his tweets. The same could apply to the 25th amendment.
The 25th amendment is intended to remedy constitutional and non-character deficiencies. Trump’s speech on Wednesday was not only unpresidential but also ruthless. He actively encouraged protesters to march at the Congress, and the speech was to end shortly before the joint vote-counting procedure.
Trump was preceded by his son Donald Jr., who enraged the crowd with lines like this: “If you want to be zero and not the hero, we’ll come for you and we’ll have a good time for it. “Trump’s attorney, Rudy Giuliani, said it was time for a” trial by battle. “It was a shameful and offensive portrayal.
Trump’s speech alone, however, is not evidence of incompetence or insanity. Being obnoxious and narcissistic is no reason for removal. Indeed, such a standard would leave much of Washington blank.
Even if there was evidence of such a move, it would likely result in a removal of only four days. Section 4 allows Vice President Mike Pence and a majority in the Cabinet to sign a statement to Congress that Trump is unable to take office. In such a highly unlikely event, Pence would immediately take over. Trump would have four days to object, however. In that case, Pence and the Cabinet would have to send a second statement. Congress would then have to vote with two-thirds to remove the president. That is, both chambers (as opposed to impeachment, which only requires a two-thirds vote in the Senate). Congress has 21 days for this vote, but for Trump it would have to be done virtually immediately to get past the natural end of his presidency. Congress can also create a panel to make such a disability determination, but that would likely take more time.
Of course, if Congress can get a second statement from Pence, it could lose time to vote and leave Trump in constitutional quarantine until Jan. 20. The vote would then become contentious.
But what would be achieved? Trump has already promised an orderly transfer of power to President-elect Joe Biden. To impose this ignoble moment on Trump, Congress would set a precedent for future such distances in ill-defined intellectual disabilities. If it wanted to, it should have moved years ago.
As noted in “The Caine Mutiny”, “wasted hours are just as sure to waste your life in the beginning as in the end – only in the end it becomes more obvious.” There is nothing more precious or flickering than time for the president’s mutinies and moves.
Jonathan Turley is Shapiro Professor of Law of Public Interest at George Washington University and a member of the USA TODAY Board of Contributors. Follow him on Twitter: @JonathanTurley