Why are we talking about the 25th Amendment?
Well, if we’re being specific, what we’re talking about is Article 4 of the 25th Amendment. The Article, which has never been used, spells out how a president can be removed from office if he is “unable to discharge the powers and duties of his office.”
Aside from being used at a plot point on the Fox show “24” in the mid-aughts, Article 4 was an obscure section of an obscure amendment before President Trump was elected. Since then, a number of pundits – perhaps most notably Ross Douthat at The New York Times – have suggested that it be used to remove Mr. Trump from office.
Now, thanks to author Michael Wolff, whose recently published “Fire and Fury: Inside the Trump White House” has rocketed to the top of bestseller lists, we’re talking about Article 4 once again. Wolff said on NBC’s “Meet the Press” over the weekend that talk of using the amendment to remove Mr. Trump is a concept that is “alive every day in the White House,” with administration staffers talking regularly about its implementation behind closed doors.
Mr. Trump, for one, has dismissed “Fire and Fury” as a “Fake Book, written by a totally discredited author,” while the White House has called it “fiction.” Outside the administration, a number of reviewers have taken issue with the book’s apparent sloppiness with the facts. But here we are, talking about the 25th Amendment anyway.
So how does this “removing the president from office” thing work?
Article II, Section I, Clause 6 of the Constitution mentions the vice president taking charge in the case of presidential “disability.” However, the Constitution didn’t get into what that disability might look like and how the president would be replaced, or rather it didn’t until 1967, when the 25th Amendment was passed.
According to Article 4 of the amendment, the vice president can get together with a majority of the Cabinet to inform Congress that the president is incapacitated. Should that happen, the vice president would become “acting president” – so long as the president doesn’t object.
If the president thinks that he’s able to discharge the duties of the office, then the vice president and the cabinet have four days to tell Congress that he’s wrong. Then Congress has 21 days to decide whether the president can do the job. If they decide he cannot, then two-thirds of both chambers have to vote to make the vice president the acting president.
That sounds like a hard thing to do?
Yes, and it’s hard by design. The drafters of the 25th Amendment didn’t want it as an excuse for the cabinet to starting ordering coups, after all, so it’s an enormously difficult process, particularly when issues like mental health are involved.
Mr. Trump’s detractors frequently call him “crazy” or “senile.” But it’s one thing to say that, and quite another to try and prove it before Congress. Yes, Mr. Trump is colorful, and his Twitter feed is at times shocking, but you’re going to need a lot more than that to prove he’s mentally unfit for the presidency.
“How do you demonstrate someone is psychologically unsound?” Robert Gilbert, a professor at Northeastern University and an authority on the 25th Amendment, told CBS News last year. This is still an open question, and unless Mr. Trump submits to a thorough examination by a team of unbiased mental health professionals, it’s not one with an easy answer.
Wouldn’t impeachment be easier, anyway?
Well, if you have two-thirds of both chambers voting that Mr. Trump is mentally unwell, you’d think you could muster the votes for impeachment. Also, an impeachment doesn’t require a two-thirds majority in the House (although it does in the Senate), or for the cabinet and the vice president to sign off on it. There are fewer hurdles in that regard.
However, given that impeachment proceedings can easily drag on for years, while Article 4 spells out a narrow timeframe for action, one could argue that the 25th Amendment approach is almost certain to be quicker.
Which is more likely to remove Mr. Trump from office – the 25th Amendment or impeachment?
The cute answer here is “neither,” as both are unlikely. But it’s hard to state just how improbable it is that Mr. Trump would ever be removed via the 25th Amendment. For one thing, as mentioned earlier, it’s never been done before. For another, since there’s no easy and definitive way to “prove” that a president is too mentally unsound for the job, using the amendment will almost certainly look like a coup attempt to Mr. Trump’s supporters.
If that doesn’t seem like a big deal to you – who cares what they think? you might be muttering to yourself – think of what precedent that would set, and what damage it could do to the country. Americans’ faith in the electoral system is flimsy enough already, and nobody should want to leave a third of the country convinced that their man was forced from office by what amounted to a kangaroo court.
What if I really don’t like Mr. Trump because I think he’s crazy and dangerous?
Well, then you have two real options once you’ve abandoned the 25th Amendment fantasy. The first is impeachment, which will suddenly look a lot more plausible if there are extraordinary Democratic gains in 2018.
The second, and better option is voting him out in 2020.
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