Law & the Courts

End This Republican Nightmare

President Donald Trump at the White House in Washington, D.C., April 6, 2020 (Kevin Lamarque/Reuters)
Using the 25th Amendment to remove Trump from office is a temptation that must be rejected, though.

I part company with many thinkers I esteem on the right when I say: What happened yesterday does not call for invoking the 25th Amendment. We all know the history of this amendment, we know why it was passed (memories of Woodrow Wilson’s stroke, which left him largely incapacitated and effectively made his wife the unelected president, followed by fears surrounding the assassination of John F. Kennedy), and if we’re being honest with ourselves, we know that it does not apply to Donald Trump.

The attraction of invoking the 25th Amendment is this: It would remove Trump from office immediately before he is able to do any more harm to the republic. After a simple majority of the cabinet, plus Mike Pence, declared Trump unable to serve, the president would respond by denying that he is unable to serve but the other officers would be able to sideline him for 25 days, running out the clock on his presidency.

Let’s not do this. The 25th Amendment (Section 4) stipulates that it is applicable only if “the President is unable to discharge the powers and duties of his office.” But Donald Trump is obviously not “unable,” merely unwilling to discharge his duties. No serious person doubts that Trump is perfectly capable of saying that Joe Biden has been duly elected president and that he is committed to an orderly transfer of power. (Indeed, he affirmed the latter in an early-morning tweet sent out by his aide Dan Scavino). Or Trump could, if he wanted, calm tensions by simply ceasing to claim that the election was stolen. He chooses not to do these things but he is able to do them. The reading of the 25th Amendment being discussed by cabinet officials and pundits yesterday would amount to essentially declaring that the president is unable to discharge his duties because he is insane. This is not a diagnosis that non-medical professionals in the cabinet should be making. Ruling that the president suffers from some debilitating mental disorder or another would, at a minimum, require a rigorous examination by trained professionals, not an off-the-cuff decision by politicians. (Yet even if a slate of psychological experts were to examine the president, they probably wouldn’t agree on what condition to diagnose.)

Using the 25th Amendment to remove Trump from office is a temptation that must be rejected. It would clearly be a political move meant to extract from public life an unpopular figure. The United States of America cannot go down the road of confusing political unfitness with medical unfitness. The cabinet would simply be using the 25th Amendment as a pretext for taking down a lawfully elected leader they oppose. It would amount to an unconstitutional coup. If the 25th Amendment could be deployed in his case, it could be deployed in many other cases. How many times did their political opponents declare that Nixon or Reagan was “a lunatic” unfit to serve?

No, the Constitution is clear about the remedy for a president who has become politically untenable: impeachment and removal. The House of Representatives could easily pass articles of impeachment declaring that the president has violated his oath of office by attempting to subvert the election results and by sedition. Most Republican senators are probably too lacking in courage to consider removal, but only 17 of them need to come on board, assuming all 50 Democrats agree. Many key Republicans, such as Ben Sasse, Lindsey Graham, Mitch McConnell, and Susan Collins, do not face the voters for six years, by which time Trump can be ancient history, if they choose to make him so. A process of impeachment, removal, and disqualification from office would render it impossible for Trump to run for president again. This ought to be an immensely attractive prospect for the Republican Party. If Trump is reduced to being just another cable-TV blowhard hawking vitamin supplements and reverse mortgages, the threat he represents to Republicans will be contained.

My guess is that Republican senators who live in cowering fear of a rude tweet are hoping that some exterior force will save them from Trump: Perhaps Cyrus Vance, the Manhattan DA, will put Trump in jail and remove him from the 2024 chessboard. But if these people are truly leaders, they should take action themselves instead of hoping for someone else to do their work for them. The alternative is that each of them will have to continue cowering for the next four years as Trump continues to embarrass himself and the country by barking his conspiracy theories and runs for president again, in which case (against a developing field of 20 or more not-Trumps) he would almost certainly win the nomination again and drag the entire party along for a 2024 drubbing as every Republican elected official was forced to answer for the events of January 6, 2021 — and much else of Trump’s doing. And after that? Why, he’ll run for president again, and again, and again, for as long as he craves attention, which is to say for the rest of his life. Senators are elected for the longest terms of any officials because they’re supposed to be the ones who have the long-term vision. They should gaze into the distance, see what’s coming, and stop it right now.


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