Calls abound on social media for Congress and the administration to use the incapacity clause of the 25th Amendment to remove Donald Trump from office, but this could do more harm than good.
Last week may have given us the clearest view yet of the circus that has become the Donald Trump Administration. Let’s begin with what became front-page news going into the previous weekend: Trump’s vile, sexist remarks concerning Morning Joe hosts Joe Scarborough and Mika Brzezinski:
Donald Trump has clearly learned nothing from the exposure of his past sexist comments regarding women, as he now continues to insult and degrade them from the office of the President of the United States. Then again, he doesn’t have to learn any lessons from his past actions; as he is always keen to point out, he won the 2016 election:
But even in addition to these immature and disgusting insults against the American news media, last weekend also “treated” us to what many see as an incitement to violence against members of the media:
Trump’s recent tirades against the free press elevate his war against it — and against the First Amendment to the Constitution — to a dangerous new threshold. Sure, one can interpret Trump’s posting of the video as simply an overblown, more satirical response to the media’s coverage of his administration. But one must also consider the context from which the video comes. Ever since the campaign, Trump has called out news organizations and individual media figures and subjected them to public ridicule. He has also directed the forcible ejection of protesters and the outright theft of their coats in frigid weather conditions, just to make a point. So as a public, we must look at the overall pattern of Trump’s most offensive tweets and statements. Arguably, he is a sociopath:
Sociopaths are less able to play along. They make it plain that they’re not interested in anyone but themselves. They often blame others and have excuses for their behavior.
Some experts see sociopaths as “hot-headed.” They act without thinking how others will be affected.
Much of Donald Trump’s behavior suggests such sociopathic tendencies; it’s very clear just from his Twitter tirades that he simply does not think before pressing the “Tweet” button and that he cares little, if at all, about how his tweets may impact the presidency, himself or his administration, or even the entirety of the nation he is supposed to be leading. He also clearly does not care about his blatant violations of the Constitution in both his condemnation of the news media and his own attempts to circumvent it through the use of his Twitter account. Remember: The media’s ability to report freely on the actions of this administration is one of the most important protections our country has from outright tyranny.
And even though Trump’s recent tweets about Scarborough and Brzezinski have been condemned even by fellow Republicans, the Trump Twitter Train continues to roll on. This has prompted an outcry on social media — using the hashtag “#25thAmendmentNow” — to formally remove Donald Trump from the presidency, which would automatically replace him with Vice President Mike Pence (provided the rest of the government doesn’t let Trump get by with simply appointing Ivanka to the presidency as he did during the G20 Summit, that is…).
Analysis of the 25th Amendment and Its Importance
So to begin, let’s briefly take a look at the 25th Amendment itself. The amendment is divided into four separate sections. The first is very straightforward, and simply decrees that the Vice President will assume the presidency in the event of a president’s removal from office or death. The second paragraph is similarly straightforward; it simply states that if the office of Vice President is vacant, the President will name someone to the position, who will then take it over upon a confirmation by both houses of Congress.
Paragraphs 3 and 4 are where things get interesting. Paragraph 3 essentially says that if the President provides written notification to the President pro tempore of the Senate, and the Speaker of the House, that he/she cannot effectively perform his/her job functions, the Vice President takes charge — at least until the President sends a similar written notification explaining that he/she can once again assume the duties of the presidency. In other words, it sets up the President to voluntarily vacate the office on a temporary basis if he/she feels, for whatever reason, that he/she is too incapacitated to remain in charge. Again, while lengthy, this is fairly straightforward in its interpretation.
The final paragraphs which mark Section 4 are the grounds pro-25th Amendment supporters wish to use to remove Trump, so let’s look at them directly:
4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
The first paragraph of Section 4 is particularly interesting. It states that both the Vice President and a majority of the heads of the major executive departments can send written notice to the President pro tempore of the Senate and the Speaker of the House that the President is unfit to discharge the functions of the office, allowing the Vice President to take control. Or, the Congress can effectively create its own committee or department for the purpose of determining the President’s fitness to serve, and elect to remove or retain him/her.
Now, the final paragraph of the amendment sets the grounds by which the President can dispute any decision requiring his/her removal from the office. Should the President provide written documentation to the same officials that he/she can discharge the duties of the office, the decision can be overturned; however, if those who sanctioned the President’s removal provide a rebuttal — again to the same representatives as above — then the issue goes to Congress, where it then takes a 2/3 majority vote in order to affirm the President’s removal from office.
The importance of the 25th Amendment is fairly obvious: It provides an order of presidential succession, arranges for the assignment and confirmation of a Vice President if the office is for some reason ever vacant, and provides a definitive method for removing the President from office, as well as a way for the President to attempt to counter such measures. It provides another method outside of an actual impeachment by which Congress and even the Vice President can attempt to rein in the powers of the presidency if it is needed.
The Case for and Against Its Invocation
The case for invoking the 25th Amendment appears to stem primarily from Trump’s tweets against the media, with the video of him taking out CNN apparently becoming the last straw for proponents. The hashtag began taking off on Twitter soon after the video was posted; certainly I have personally seen it a number of times on my feed over the last week or so. And, given Trump’s apparently sociopathic tendencies, a reasonable case can be made that Trump is unfit to discharge the duties of his office simply on the basis of his apparent mental state (egotistical, sadistic, and lacking any sense of responsibility for his own actions).
If we add this to his apparent violations of the Constitution, including his actions to impede the investigation into the administration’s likely involvement with Russia’s interference in the 2016 election, we can make a nearly identical case for the amendment’s invocation as for an actual impeachment trial.
But there are a number of issues to consider, as well. The use of the 25th Amendment to remove Trump from the presidency faces a litmus test similar to that of impeachment; as the amendment reads, it will still take a number of Republican leaders and legislators to support its use, just as it would take a large number to unseat him through impeachment. This alone is likely the biggest obstacle to its use.
But for the sake of argument, let’s say that the movement succeeded, and Trump was effectively removed through the 25th Amendment. What then? Either way, we get Mike Pence as the new Commander-in-Chief. Here’s the biggest problem with that outcome: Mike Pence would likely be immune to both impeachment and the 25th Amendment. First, recall the following policy positions Pence has taken:
- He believes that allowing gay marriage will result in the collapse of society at large;
- He disavows scientific evidence showing that cigarette smoking harms and ultimately kills the body, and apparently also received big contributions from Big Tobacco;
- He sought to defund research into HIV/AIDS and divert the funds to so-called “conversion therapy” for homosexuals;
- He not only opposes Planned Parenthood and reproductive rights for women, he also stated emphatically that he would be willing to shut down the government to stop them.
It can reasonably be argued that such policy positions are frightening, even insane. But do they actually disqualify him from holding the office of President of the United States?
Sadly, the answer is an emphatic “No.” The whole point of having elected representatives from different ends of the political spectrum is to allow the governing officials to take the country in the direction they see as most beneficial. Simply holding different positions from the rest of the nation on important issues does not meet the threshold of incapacitation outlined in the Constitution, nor do they necessarily even constitute impeachable offenses.
And that is one of the biggest problems to using the 25th Amendment to remove Donald Trump. Whereas Trump both holds positions contrary to the good of the country and openly demonstrates an unfitness to serve, Mike Pence would pass the constitutional tests set forth by both Article 2, Section 4, and the 25th Amendment. Additionally, the processes set forth by the 25th Amendment would likely prevent the public disclosure of all the evidence of the Trump Administration’s crimes, and possibly the weighing of such evidence within the government altogether. It could effectively provide a loophole by which the members of this administration can escape punishment for any crimes they may have committed, which would cause further damage to our nation and its democratic processes.
So, as understandable as it may be to want Donald Trump out of the presidency through whatever constitutional avenues remain available, the 25th Amendment is simply not the way to do it. Instead, we need to proceed with a full impeachment of Donald Trump, with evidence collection and analysis, to implicate and convict him of any and all crimes he personally may have committed. Through this process, it is probable that evidence will come to light implicating members of Congress and other high-ranking government and administration officials of additional crimes, creating pressure to either use legal ways to remove them from office, or to force their resignations. This, in turn, opens the door to criminal prosecutions and either prison sentences or capital punishment for those convicted of the most serious crimes, including treason. As hard as it will be to wait everything out, this is the only course of action which will allow the United States to regain its moral footing. If America ever hopes to become leader of the free world again in light of this presidency, there is no other choice.