According to an explosive new book by legendary reporter Bob Woodward, many people in the White House readily admit that President Donald Trump has lost his mental capacity and is a danger to the country.
In her own recent book, former White House aide Omarosa Manigault Newman writes that, when she first met him in 2003, Trump was sharp. But, she says, the Trump of 2017 “ramble[s] incoherently, speaking in random fragments,” and appears “delusional.” According to Woodward, White House chief of staff John Kelly, who was already quoted calling Trump an “idiot,” now calls Trump “unhinged” and tells staff, “He’s gone off the rails. We’re in Crazytown.”
Scholar Dan Drezner has collected over 450 news stories where the president’s own staff describe him as having the mental and emotional capacity of a toddler. And just Wednesday, an anonymous op-ed in The New York Times credited to a senior administration official said Cabinet members had seriously considered invoking the 25th Amendment to remove Trump from office.
Woodward’s Watergate reporting helped lead to impeachment proceedings against President Richard Nixon. But perversely, congressional leaders’ current strategy of deferring to special counsel Robert Mueller’s investigation could actually prevent Trump’s incapacity from being considered by Congress as part of an impeachment inquiry.
When the Founding Fathers debated whether the new Constitution should include an impeachment provision, James Madison (the “father of the Constitution”) argued that the president “might lose his capacity” and this “might be fatal to the Republic.” Consequently, it was “indispensable that some provision should be made for defending the Community against the incapacity” of the president. And while the antique constitutional phrase “high crimes and misdemeanors” seems to suggest prosecutable crimes, scholars agree that the phrase (which was borrowed from English history) is not limited to violations of criminal law.
“Congress has outsourced its constitutional responsibilities to a criminal prosecutor.”
We have never tested whether incapacity alone is grounds for impeachment. And under the over-criminalized view of impeachment promoted by congressional leaders of both parties, Congress’ impeachment power takes a back seat to a prosecutor’s decision of whether to charge Trump with a crime. But that might create an even more perverse consequence, in which Trump’s incapacity could be used as an argument against impeachment.
Call it the Trump Defense. Trump’s lawyers may argue that he is incapable of forming the necessary state of mind (mens rea) to commit impeachable crimes such as obstruction of justice or conspiracy to violate election law.
It may seem far-fetched. But the president’s allies are already testing this line. After Trump’s bizarre performance in Helsinki this summer, when he praised Russia and criticized America instead of the other way around, Trump’s defenders offered that the president was tired and cranky, and senior administration officials explained that “his brain can’t process that collusion and cyberattacks are two different things.” As political scientist Jacob Levy notes, these arguments “amount to saying that he’s emotionally, psychologically, and cognitively incapable of discharging the duties of his office.”
But say (for example) that Mueller discovers convincing evidence that Trump himself authorized a quid pro quo between his campaign and the Russian government. Does it seem far-fetched to think the president’s lawyers might argue the president didn’t really understand what he was approving? And does it seem far-fetched that Congress would take that as reason enough not to act?
Of course, the Trump Defense would be a gamble. No one suggests that Trump has lost all faculties. For example, former FBI Director James Comey believes Trump is capable of “tracking conversations.” Trump himself might forbid his lawyers from arguing diminished capacity because it’s embarrassing. And this defense often doesn’t work — the jury just won’t buy it.
In impeachment proceedings, however, the Trump Defense should be completely irrelevant. In 1803, the House of Representatives impeached Judge John Pickering for intoxication on the bench and mishandling cases. As Pickering’s case came before the Senate for trial, his chief defender ― his own son ― presented an unusual defense. He argued that Judge Pickering was “insane, his mind wholly deranged,” and so Pickering was “no subject of impeachment, or amenable to any tribunal for his actions.”
The Senate, however, didn’t buy this early Trump Defense. It rejected evidence of mental illness as a mitigating factor and removed Pickering from office. The lesson is that impeachment does not require a criminal mental state because impeachment is not about crime or punishment ― it is about protecting the country.
But here, Congress has outsourced its constitutional responsibilities to a criminal prosecutor. As Mueller contemplates the challenge of persuading 12 jurors to convict Trump unanimously of crimes beyond a reasonable doubt ― assuming he could even get a Supreme Court with Brett Kavanaugh to agree that a president can be indicted ― he might conclude that the Trump Defense has legs. And Mueller is unlikely to give a Comey-esque explanation of what he decides not to charge.
The Trump Defense’s logic is ridiculous: The president’s mental incapacity means no criminal charges, and no criminal charges mean no impeachment. Yet by abdicating its constitutional responsibility of impeachment, Congress leaves the door open to this absurd gotcha.
The solution is simple: Congress needs to stop confusing impeachment with criminal prosecution — and stop using Mueller as an excuse to avoid its constitutional duty to conduct its own impeachment investigation. The framers of the Constitution entrusted the impeachment power not to a prosecutor but to Congress. And allowing Trump continued access to power as he spirals further into madness might be, as Madison prophesied, fatal to the republic.
Ron Fein is the legal director of Free Speech For People and a co-author of The Constitution Demands It: The Case for the Impeachment of Donald Trump.