First “Acting President” by reason of Investigation of the President
Why President Trump should be placed on administrative leave.
What we know
Public testimony has revealed that the American intelligence community has “high confidence” that the Russians sought to undermine the integrity of the 2016 election and deliberately stole, and then deployed stolen materials, to the disadvantage of the Democratic candidate, Hillary Clinton.
The former head of the CIA in public testimony indicates that he discerned from intelligence briefings that during the election, and the following transition, that there was interaction between Russian officials and members of the Trump campaign.
What remains to be determined
The public record is thus far incomplete. President Trump openly questions whether the Russian hacking transpired at all – blaming it possibly on the Chinese or others. Beyond that, even if President Trump knew of the Russian interactions with his campaign staff, it has yet to be shown that President Trump knew or shaped the purpose of such meetings. Above all, there is no direct evidence that President Trump, himself, interacted with the Russians and if he did, to what purpose? Had President Trump become an unwitting source of treachery in the Russian hacking effort to undermine our democracy, to expand his own private investments or those of his son-in-law, Jared Kushner, or something else? Connecting the dots is the job of special counsel Robert Mueller.
Obstruction of Justice ?
President Trump has reportedly sought to preempt the Russian inquiry in conversation with former FBI director James Comey, director of national intelligence Dan Coats, and Adm. Rodgers. This activity is problematic since if done with “corrupt” intent it suggests obstruction of justice and other crimes that are associated with the cover-up of unlawful, criminal activity.
Impeachment?
That said, it is important to recall that President Trump cannot be criminally prosecuted as a sitting president. If there is to be a criminal prosecution of President Trump, the evidence gathered by Mr. Mueller must first demonstrate the abuse of office or high crime or misdemeanor giving rise to impeachment by the House and subsequent conviction by two thirds of the Senate. That is a high bar, deservedly so, since removing President Trump would disappoint millions of working class Americans who continue to see him as their champion.
Mr. Mueller’s task is likely to take considerable time and resources. It is complicated by overlapping legislative investigations. Statutory law does not give Mr. Mueller the directing role to ensure that congressional requests for information and related immunity grants do not contradict his efforts. Working this through depends heavily upon Mueller’s unsullied record and individual persuasiveness.
To Investigate or to Govern cannot be an either/or proposition
All of this raises a question that should not be overlooked: can the United States really afford to put on hold the governance of the nation to investigate President Trump? The short answer? NO. There are extraordinarily important matters to be dealt with from health care to tax reform to the war on terror. But our commitment to the rule of law does not allow us merely to look the other way. How to reconcile the need to go forward with the identification and refinement of sound public policies while at the same time investigating the Chief Executive is the central dilemma.
Administrative Leave allows both law and governance to be honored
How can this dilemma be resolved? President Trump should be placed on administrative leave. The diversion of President Trump’s time is an additional reason to have the vice-president serves as acting president. Federal employees who are suspected of wrongdoing and whose presence “may pose a threat to the employee or others, result in the destruction of evidence relevant to an investigation, result in loss of or damage to government property, or otherwise jeopardize legitimate government interests,” may be placed on administrative leave during an investigation.
But of course President Trump is not merely the assistant secretary of this or that and asking a president to step aside temporarily is an extraordinary act. This is true even if administrative leave can be argued to be in his own best interests as well since it will allow him the time needed to prepare an adequate defense.
The 25th Amendment
The 25th amendment is the mechanism designed to address this situation. Ratified in 1967, the amendment allows the vice president to become acting president with or without the incumbent’s agreement. The amendment has been used twice in 1981 when Reagan was shot and again in 1985 when he underwent cancer surgery. These were brief periods of obvious physical disability. The concerns that gave rise to the 25th amendment however related as well to longer periods where it was not clear whether the president would be able to continue in office.
For example, James Madison suffered an illness which left him unable to conduct business for three weeks, and possibly “the derangement of his mind.” In 1881 James Garfield was shot by an assassin and for 80 days wavered between life and death. Garfield’s official responsibilities went unfulfilled. In 1919, Woodrow Wilson suffered a stroke and thereafter few people were permitted even to see him. His advocacy for the League of Nations was canceled. Mrs. Wilson effectively became the acting president. FDR was disabled for most of his final year, vacillating, it is said, “between intellectual acumen and a vacuous attitude impossible to penetrate.” Thankfully, in these and other examples, the nation did not prove to be at great risk.
The Amendment allows Presidential Inability to be assessed in context
The plague of random terror and an almost daily North Korean missile launch suggests that this is not likely true now.
Close observers of President Trump’s behavior have noted bouts of depression, anger, and impulsiveness, including the off-the-cuff disclosure of highly classified information. Despite legal advice that his twitter posts can be used against him, Trump persists in answering slights and criticism that other presidents have taken in stride. The cause of President Trump’s behavior may be deeply embedded in his personal formation, but can it really be ignored? Notwithstanding the so-called Goldwater rule against pronouncing diagnosis without first-hand examination, the reported behavior of President Trump has led over 50,000 psychiatrists to sound an alarm of “malignant narcissism.”
It is a concern now echoed in the international arena by European leaders who doubt the United States under Trump can be relied upon. To be sure that is a policy conclusion, but as revealed by President Trump’s petulant shoving aside of the Montenegro president it also goes to capability, demeanor and temperament. And to the extent that these qualities are intermixed, the decision to abandon the effort to responsibly address climate change or reluctance to clearly reaffirm the NATO mutual defense pledge frighteningly illustrates that every day that President Trump is left in office during Mr. Mueller’s investigation is another day in which the course of policy may be irrevocably set damaging the interests of America and the world. So too, lifetime appointments are being made to the federal courts which may have less to do with competence than a beleaguered president seeking to curry favor with his core political base to avoid impeachment.
The 25th amendment allows the vice president to classify these troubling aspects of President Trump’s personality, in the context of the needs and dangers of the present moment, as disabling meriting temporary removal or administrative leave. The vice president’s finding must be confirmed by a majority of the cabinet or such other body as Congress may direct. That “other body” could appropriately be the group of living former presidents, as I have indicated earlier.
A True Presidential “First” for Donald J. Trump
President Trump likes “firsts,” and putting a President on administrative leave has never been done before. In all seriousness, deciding that the investigation warrants President Trump’s temporary removal should not be undertaken lightly. The 25th amendment allows President Trump to challenge his being placed on administrative leave, but the amendment does not anticipate for that such challenge allows the leave to be automatically canceled. There is a 21 day time-frame for Congress to consider accepting or rejecting President Trump’s challenge. Give or take a few additional days that are allowed for the transmission of notice, the amendment practically builds in a period of time in which the vice president can demonstrate the wisdom of his serving as acting president.
Most importantly, we must remember that elections are about governing, not investigating; to subordinate that to an endless inquiry into who is or is not entitled to govern is to disserve the Constitution, not advance it. Indeed, to allow the investigation of the president to dismember the tools by which we govern ourselves is to deliver to Russia exactly what it wanted but failed to achieve: the impotency of American democracy. President Trump should voluntarily step aside, but if he chooses not to do so, he should be involuntarily placed on administrative leave. In this regard, one can hope – whatever the philosophical import of President Trump’s “America first” rhetoric – that, in this instance, he can grasp how favoring his nation’s well-being over his own is the correct course of action.