Politics & Policy

Against the ‘25th Amendment Option’

President Trump after delivering his address to a joint session of Congress in February. (Photo: Jim Lo Scalzo/Pool/Reuters)
Removing Donald Trump through the 25th Amendment would be a crippling blow to many Americans’ belief that theirs is a country of self-rule.

Less than four months into his term, members of Congress and commentators are openly speculating about whether President Donald Trump ought to be removed from office, and about how to do so. There are two constitutional mechanisms available: impeachment, as provided by Article II of the Constitution; or by a majority vote of the cabinet (and, if necessary, the approval of two-thirds of both Houses of Congress), as outlined in the 25th Amendment.

In the New York Times on Wednesday, conservative columnist (and National Review contributing editor) Ross Douthat makes a case for the latter. Douthat rejects the idea of impeachment on the following grounds:

There will be more talk of impeachment now, more talk of a special prosecutor for the Russia business; well and good. But ultimately I do not believe that our president sufficiently understands the nature of the office that he holds, the nature of the legal constraints that are supposed to bind him, perhaps even the nature of normal human interactions, to be guilty of obstruction of justice in the Nixonian or even Clintonian sense of the phrase. I do not believe he is really capable of the behind-the-scenes conspiring that the darker Russia theories envision. And it is hard to betray an oath of office whose obligations you evince no sign of really understanding or respecting.

Douthat’s column is bracing reading: an urgent, forceful case for taking decisive action against a president whose conduct is deeply troubling, indeed potentially threatening to American security. But the 25th Amendment is not the solution.

The first reason pertains to the appropriate function of the amendment. The 25th Amendment’s fourth section (the relevant section for Douthat’s purposes) employs the broad formulation of a president “unable to discharge the powers and duties of his office.” But the amendment arose as a response to specific, concrete episodes of physical incapacitation: James Garfield, who spent nearly three months in a coma following an assassination attempt, and Woodrow Wilson, who suffered a debilitating stroke in late 1919 and never fully recovered. These examples of incapacity are very different from what Douthat describes: Donald Trump’s mental stuntedness, emotional instability, and moral decrepitude. Douthat acknowledges that he is talking about a different sort of “incapacity,” but expanding the 25th Amendment to include this vaguer brief could make it a ready weapon for unscrupulous political maneuvering in the future.

There is also no need to do so. Impeachment, even without a clear-cut “high crime” or “misdemeanor,” remains an option. As Keith Whittington, politics professor at Princeton University, observed in an essay published in 2000 about the Clinton years, impeachment has always been understood to be a permissible response to conduct inconsistent with “the expectations of the office the individual holds.” Writes Whittington: “Officeholders can abuse their position of trust and authority . . . by subverting the stature of the office itself. ‘Private’ behavior can cause very public harms when it calls into question the symbolic meaning of the office that the individual occupies and affects his and others’ ability to conduct public business.” It is impossible to straightfacedly argue that Donald Trump’s behavior has not done at least that. Impeachment, being a remedy for political malpractice, not just criminal wrongdoing, is one way that such behavior could be adjudicated.

Douthat’s suggestion, however, however, raises a larger concern. My colleague Charles C.W. Cooke wonders “just how much of a psychic shock such a move would inflict upon this country — especially on those voters who backed and liked Donald Trump. . . . 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?” The obvious answer is that the shock would be massive, and it would almost certainly cement the feeling of alienation that has gripped a non-trivial chunk of the country — the feeling that made President Donald Trump possible in the first place. That a great many Trump supporters misperceived their candidate’s fitness, or have a false picture of their own situation (e.g., that their struggles can be blamed primarily on NAFTA or China or illegal immigrants), may be true; but they remain a significant part of the polity that is finally sovereign over the United States. There are circumstances in which an elite can and ought to act to overturn popular opinion; this was the original impetus for the Electoral College (a safeguard on majoritarian tyranny), and is a power with which we invest the courts. But one dozen highly placed Republicans stripping the president of office against the wishes of millions of voters, even if justifiable on the merits and even with the ex post facto support of congressional supermajorities, would be a crippling blow to many Americans’ belief that theirs is a country of self-rule.

The shock would be massive, and it would almost certainly cement the feeling of alienation that has gripped a non-trivial chunk of the country.

This is an instance of a tension inherent in the American project. Ideally, the constitutional order, buttressed by strong civil institutions, a generally shared moral framework, and a widely distributed degree of character, is enough to secure the legitimacy of the political class, even in times of stress. But the people will sometimes act against their own best interests, and it will become incumbent upon a minority to exercise antidemocratic tools to blunt the effects, or reverse the original decision. How to do that in a way that does not invalidate the agency of their fellow citizens is not a problem that can be solved as much as a situation that must be managed as well as possible.

Of course, Donald Trump presents this dilemma at an especially fractious time — one in which the political class has very little residual capital. On both the left and the right, the belief that political decision-makers are legitimate is diminishing, as attested to not only by Trump but by the success of Bernie Sanders and Elizabeth Warren, and by the traction of the idea that “the system is rigged.” At a time when a lot of Americans believe that the nation’s powerbrokers got where they are on account of nepotism or various forms of privilege, and that their overriding aim is to entrench their own power, can Donald Trump be removed without seeming to validate every one of those accusations?

A deeply divided polity, as Lincoln saw, needs to be constantly (re)oriented toward “more perfect union.” For Donald Trump’s removal to encourage, not discourage, that aim, it would have to be the product of a broad, bipartisan consensus. That does not exist now. The president remains very popular with Republicans (more than 80 percent of his own party approves of him), and no Republican House member is going to commit career suicide unseating a president of his own party.

Maybe that changes. Maybe Donald Trump’s abuses become so grave that Republican congressmen feel compelled to act, even against their constituents’ desires. Maybe Republicans’ legislative hopes are overwhelmed by the president’s constant drama, and any remaining reasons to prop him up evaporate. But barring a radical change of mood among many Americans, these acts would nonetheless widen the fractures that have formed in our republic.

Put another way: As things stand now, the president is a menace. But so, in a different way, is the prospect of removing him. For the time being, then, there is no way out of this mess.

READ MORE:

Under the Obama Precedent, No Trump Obstruction of Justice

The Latest ‘Just Like Watergate’ Idiocy

Intelligence Lapses and Double Standards

Ian Tuttle — Ian Tuttle is the former Thomas L. Rhodes Journalism Fellow at the National Review Institute.

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