Trump’s mental illness not enough to remove from office
Last week I wrote a piece about how Trump could beat the 25th amendment. Then, from the crucible of the internet, LeaningLeftAgain kindly sent me an article titled Presidential Inability and Subjective Meaning by Adam R.F. Gustafson.
My original article saw a problem with the procedure in the amendment that would allow Trump to monkeywrench it. The problem is actually much worse.
The 25th Amendment, Section 4 allows the Vice President and a majority of executive department principal officers to declare the President unable to perform his duties. There is no congressional legislation and little guidance from the DOJ Office of Legal Counsel describing the process and intent for Section 4. We only have the legislative history—hearing testimony, reports and floor debates—to piece together how Section 4 works. Gustafson does this.
Conniving Vice President and a Disenchanted Cabinet
According to Gustafson, “Section 4 was the most vociferously debated section of the Amendment because its critics in Congress perceived in it the potential for abuse by a conniving Vice President and a disenchanted Cabinet.”
Congress set a high bar so Section 4 would not be a backdoor impeachment. For example:
From Senator Birch Bayh
"[T]he word 'inability' and the word 'unable' as used in [Section 4]... mean that [the President] is unable either to make or communicate his decisions as to his own competency to execute the powers and duties of his office."
From Senator Edward Kennedy
"total disability to perform the powers and duties of office…either physical or mental inability to make or communicate his decision regarding his capacity… or …physical or mental inability to exercise the powers and duties of his office."'
Crazy is not enough
So, what of Trump crazy? Consider this:
From Senator Birch Bayh
"lt was made clear that unpopularity, incompetence, impeachable conduct, poor judgment, and laziness do not constitute an 'inability' within the meaning of [Section 4].
Being a golfing sociopathic narcissist who offends Gold Star Parents and crashes Obamacare or nukes North Korea is not unable. If you can sign your name and find the bathroom, you are pretty much able to remain President.
If Trump can fight back in Congress, he is able to be President
The process laid out in Section 4 begins with the Vice President and principal officers declaring to Congress that the President is unable to serve. If Trump challenges the assertion, the Vice President could appeal to Congress, which would have 21 days to decide using the standards found in the legislative history.
The bar is set so high that if Trump can mount a coherent challenge in Congress, he should win according to the legislative history.
Progressives, the 25th is not a solution
Congressional debate on Section 4 would look much more like securing a guardianship of an ill parent from a judge. Members will review reports from neurologists and psychologists and Republicans avoid airing the criminal and ethical misconduct required to remove Trump by impeachment.
And, in the remote chance Trump loses, we are left with crazy for Jesus Pence, with no disclosures about Russia and all the crimes Trump et. al. committed to become President and Vice President in the first place.