In for a Pence: How Congress Can Smooth the Path for Trump’s Removal via the 25th Amendment

Updated:
Posted in: Constitutional Law

Donald Trump may have had a rocky first three weeks in office, but they now look like a blissful honeymoon compared to the fourth one.

Amidst a flurry of leaks and reports of staff disarray, Trump suffered his first defeat on a cabinet nomination, withdrawing his choice for Labor Secretary. He gave up on his appeals in State of Washington v. Trump, leaving the order suspending his “travel ban” intact. Anonymous aides portrayed the nation’s CEO roaming the White House alone at night in his bathrobe, watching cable news obsessively, and calling his National Security Advisor, Michael J. Flynn, at 3 a.m. to ask whether a strong or weak dollar was better for America. That same Gen. Flynn soon found himself defenestrated from the young administration, ostensibly for misrepresenting his contacts with the Russian ambassador during the transition.  Flynn’s departure revived longstanding charges that Trump’s election was propelled by a Russian intelligence operation. A thorough investigation of these charges—were the Republican-controlled Congress to permit one—could well implicate key campaign aides as co-conspirators, and perhaps reach the president himself.  Impeachment began to loom as a distinct (though distant) possibility.

The Elephant in the Situation Room

It would normally take a Category 5 hurricane or an alien invasion to move such a story off the front pages, but President Trump may have momentarily succeeded in doing so with his 80-minute press conference on Thursday.  In a performance that seemed to rattle even sympathetic observers, Trump lashed out against the media and his critics with a vehemence that often bordered on incoherence.  MSNBC’s Joe Scarborough tweeted that “Republicans on the Hill were panicked behind the scenes by Trump’s performance.” Fox News anchor Shep Smith called Trump’s allegations against the media “absolutely crazy.” CNN’s Jake Tapper judged his performance “unhinged” and “wild.” One unnamed Republican senator texted CNN’s John King: “He should do this with a therapist, not on live television.”

While the Russia story isn’t going away, Trump’s press conference refocused attention on his own mental competence and stability.  Critics have never been shy about diagnosing Trump with various psychological conditions, the most popular choice being narcissistic personality disorder. But many self-obsessed people are still capable of functioning at a high level professionally, as Donald Trump apparently has for much of his life.  But the astonishing achievement of reaching the presidency seems to have aggravated Trump’s insecurities and grievances, to the point where mental illness has become the elephant in the Situation Room. Some mental health professionals have begun to overcome their reticence (and perhaps professional standards) to argue that the “grave emotional instability indicated by Mr. Trump’s speech and actions makes him incapable of serving safely as president.”

Is the president able to distinguish between fact and fantasy?  Can he absorb and process complex information?  Does he have the capacity to make rational decisions?  The answers, to many observers of his press conference, were not reassuring.  Can anything be done about it?  The answer to that question is not simple, either.

How the Constitution Deals with Presidential Disability

The 25th Amendment provides a process for the president to declare himself “unable to discharge the powers and duties of his office.” In that case, the vice president becomes the acting president until the president recovers from his disability.  This is simple enough when the president is aware of an upcoming medical procedure and voluntarily invokes the 25th Amendment for a limited period of time, as President Reagan and President George W. Bush did on three separate occasions.  But what if the president is so physically or mentally disabled as to be unable to recognize or acknowledge his own disability?

As I discussed in a previous article on Trump’s chances of completing his term, Section 4 of the 25th Amendment provides an “involuntary” procedure allowing the vice president and a majority of the cabinet to notify the leaders of Congress that the president is disabled.  In that case, “the Vice President shall immediately assume the powers and duties of the office as Acting President.”  This assures continuity of government if the president falls victim to a sudden illness. But if the president recovers—or disputes the existence of a disability at all—he can attempt to reclaim his office by informing Congress.  This will happen automatically, unless the vice president and a majority of the cabinet provide a further declaration to Congress within four days that the president remains disabled.  If that happens, Congress must convene and make a high-stakes decision: who is entitled to exercise the powers of the presidency, the president or the vice president? But the president has a clear advantage in this contest: he will regain his powers unless the House and the Senate each confirm his disability by two-thirds majorities. To put it in the simplest terms, the support of either 34 senators or 145 members of the House would be sufficient to restore power to an allegedly disabled president.

In the case of physical disability, invocation of the 25th Amendment is likely to be straightforward. In most cases, an inability to communicate will signal the president’s disability, and the restoration of communication will mark the end of it.  Mental disability is an entirely different kettle of fish. It is not necessary to argue that the president is “insane” in a legal or clinical sense—the constitutional standard is simply whether he is “unable to discharge the powers and duties” of the office.

What if a president “performs” his duties, but does so erratically and irrationally? And if the president loudly insists that he is capable, will the vice president and cabinet dare invoke the 25th Amendment, even if they are privately convinced that he is not?  As long as he retains the loyalty of a substantial minority in either the House or Senate, the president can turn the tables on his scheming lieutenants and reclaim his office.  Once restored to his powers, the president can (and certainly would) dismiss the cabinet members who doubted his capacity. While the vice president cannot be removed from office, he can be sidelined and humiliated in countless ways until his term is over.  And that assumes that the president would not seek even more extreme forms of vengeance.

Under these circumstances, the vice president and cabinet may fear to use the 25th Amendment to constrain an unbalanced president until his madness has put the nation in serious peril. Is there any way out of this dilemma?

How Congress Can Make the 25th Amendment a Safe Space for Pence and the Cabinet

Collecting the required signatures on a declaration of disability from a majority of the cabinet would be no simple task for Vice President Pence.  He would have to do so under the nose of President Trump and his watchful staff. Pence and his allies would have to act before any sympathetic cabinet members are dismissed for suspected disloyalty.  Any attempt by Pence or the cabinet to consult with Congress in advance to ensure support would likely blow the secrecy of the operation and leave it dead in the water.

But Congress can act on its own to give Pence and the cabinet the assurance they need to proceed.  For example, Congress could pass a resolution, by a two-thirds vote in each House, urging the invocation of the 25th Amendment. This would largely remove the threat that a declaration of disability would be reversed.  Pence and the cabinet could then relieve the president of his duties without much fear that Trump could recapture power within days or weeks.

There are several downsides to this approach, however.  The need for prolonged debate in Congress over such a resolution would give President Trump and his supporters an opportunity to take countermeasures. He could threaten members of his party in Congress and extract declarations of fealty from the cabinet. Individuals suspected of disloyalty could be isolated from the herd and subjected to intense pressure. Vice President Pence would almost surely have to go on the record as opposing the resolution.  This would make it awkward, to say the least, for Pence and the cabinet to turn around and invoke the 25th Amendment after its passage. Even more dangerously, if the resolution failed to gain a two-thirds majority in either house, the 25th Amendment would essentially be de-activated as an option.  Invoking it wouldn’t just be risky for Pence and his cohorts—it would border on political suicide.

There is a more subtle way, however, that Congress can choose to smooth the path for a declaration of disability.  Individual members of Congress could send private letters to Vice President Pence, giving him confidence of support in the event of a 25th Amendment showdown.  Such a letter might look something like this:

CONFIDENTIAL

Dear Mr. Vice President:

Based on President Trump’s public statements and conduct in office, I have grave and increasing concerns about his capacity to perform the duties of the presidency.

If you and a majority of the principal officers of the executive departments determine that President Trump is unable to discharge the powers and duties of his office, I will give substantial weight to that determination in the event that Congress is required to decide the issue in accordance with Section 4 of the 25th Amendment to the Constitution.

This letter will remain valid unless and until I revoke it in writing to you. You may disclose the existence of this letter on a confidential basis to members of the cabinet. You may release it publicly as you see fit in the event that Section 4 of the 25th Amendment is invoked.

Such a letter would respect the separation of powers on two points. First, it would recognize that the vice president and the cabinet (rather than Congress) must initiate the involuntary disability procedure.  Second, by only promising to give “substantial weight” to their determination, it would preserve the power given to Congress by the 25th Amendment to act as a check against usurpation of power by the vice president and the cabinet.

Most importantly, such an approach would allow members of Congress to remain out of Trump’s line of fire until a critical mass has been achieved. At the same time, it would shield Pence and the cabinet from the impossibly delicate task of lining up support before invoking the 25th Amendment.

The vice president, as the presiding officer of the Senate, maintains an office on Capitol Hill. Members of Congress could deliver their confidential letters there, where Pence would store them in a safe until needed, away from the prying eyes of the White House staff.  The letters could even be handwritten, in order to avoid leaving digital tracks on congressional computer systems.

How the Confidential Support of Congress Would Put the Vice President in the Driver’s Seat

Once assured of sufficient support in Congress, especially from its GOP contingent, Vice President Pence would still need to persuade a majority of the cabinet to support a declaration of presidential disability.  This could be a formidable task.  But doing so would be much easier with the knowledge (and, if necessary, the proof) that the declaration is very unlikely to be overturned by Congress.

With the outcome of any contested vote in Congress more or less assured, Acting President Pence would also have less to fear from extra-legal resistance by President Trump. With little prospect of his powers being restored by legal means, Trump would find it hard to convince loyalists and waverers within the government to risk dismissal or prosecution by obeying his orders instead of Pence’s.

All this can be done by members of Congress at little risk to themselves.  They can avoid taking a public stance on Trump’s mental capacity until a critical mass has gathered and Pence has made his move.  If, on the other hand, the movement to invoke the 25th Amendment fails to gather sufficient steam in Congress, any letters received can remain quietly in Mike Pence’s care and disposed of at the end of his term.  If Trump resigns or is impeached and removed from office for some other reason, the effort would become a historical footnote. And if Trump steadies himself in office and somehow dispels doubts about his mental fitness?  Well, that would be the biggest surprise yet from a relentlessly astonishing man.

Unless that happens, the 25th Amendment will be on the mind of every member of Congress, whether they admit it or not, until the day Donald Trump relinquishes the presidency.  Perhaps they will sleep better at night having placed their trust safely in the vice president’s hands.  Whether Mike Pence will sleep well with that knowledge is a question for another day.

  • Thank you.

    • NYCView

      Yes. “Dump” is indeed the word.

  • ryukage99

    I don’t really like Trump.I think the Democrats are jumping the gun.But The way Trump is uncouth and repugnant could inadvertently set a war with someone.

  • Robert TeVrucht

    What a crock. This is so much fairy tale. First, 2/3 of Congress won’t happen. Too many Republicans loyal to Trump. Second, if Trump contested it, it would pretty much stop the federal government since we would have no clear President. This clause was included because of Wilson’s disabling stroke. Also, it would have ended FDR’s disability, if it was in effect. I have a Constitutional la degree and would not take the opinion of an attorney who practises international law.

    • Joe Paulson

      The amendment was ratified decades after Wilson though that was surely in their minds. Ike’s health was probably more immediately a concern. Not clear about the FDR bit, except perhaps at the very end of his presidency. And, if he was that weak in the last months, perhaps it would be justified. But, that would have required Truman, a majority of the Cabinet and 2/3 of a Democratic Congress to go along.

      What is a “constitutional law degree” exactly? Do schools specifically give degrees like that? If so, sounds interesting. Anyway, since so many thought Trump’s own election … up to the early hours of Election Day in many cases … a “fairy tale,” by now, I’m more open-minded.

    • Amelia Taylor

      And I didn’t see where the author said it WOULD happen. The article was merely stating what could happen as per the law. No different than saying a mass murderer COULD get the death penalty – as per the law..

    • Mack Doggs

      If he contested it he would remain in power until the end of the hearings.

  • Brett

    Another liberal suffering from Trump Derangement Syndrome (“TDS”). This article is full of conjecture and speculation. I suppose Mr. Falvy is as concerned about Hillary Clinton’s meeting with China before the 2008 election as he is with speculation surrounding Mr. Trump and Russia, although he doesn’t mention it. He probably has a problem with FDR’s alliance with mass-murderer Joseph Stalin (to defeat another mass-murderer who was literally trying to take over the world; Mr. Trump has indicated he would like to obtain Putin’s help in the fight against ISIS, other mass-murderers), but he doesn’t mention it. There is a cure for TDS: 1) take a deep breath; 2) take a day or two off; and 3) read the U.S. Constitution.

    • G.N.M.

      I was considering writing a post to tell how I feel about this concept, but you handled it very nicely for me. Mr. Falvy is simply another academic liberal with too much time on his hands between classes. They will never remove Mr. Trump mid-term.

    • romney2011

      Brett,
      You are 100% right. These anarchist radical left morons show their stupidity even with immense academic training……propaganda. It is boring, and angering to see this trash over and over. It these fools did in fact live in a world they created they would regret it. They all think they will overthrow, become a part of the NWO or whatever, and enjoy their new prestige in the powerful totalitarian utopia. But when they wake up from their dream they won’t be in the administration, management, and power positions. They will be little bumps of fungus off in the corner of nowhere. Insignificant as hell. The trouble is I do not wish to be a part of their rotten, filthy world. They ARE the useful idiots. And mean, hateful bastards at that.

  • Steven Hedlund

    His comments are biased…a lot of his comments are made up rhetoric and he has stretched the truth so far out…and created a fabrication of story telling, that Mother Goose would question.

  • qwester32

    Sorry, no comment, I cannot stop laughing.

  • NYCView

    Dean Falvy: Did you actually intend to make some manner of rational point in this endless morass of dribble? Were one to strip out the lecturous, pseudo intellect, self-aggrandizement, and hate-fueled disgruntled vitriol, the piece would well distill into but one sour grapes sentence: “But, Hillary won the popular vote…….”

  • Jessica45

    The America’s witches have their own solution. In the event you missed it, you can read an article in BBC US & Canada section under the name “Witches cast ‘mass spell’ against Donald Trump.”

  • RosieLady

    That leaves most of the creatures still frollicking in the swamp, it was restocked with new species. Mr, Pence is a fine Christian man but way too strict and I don’t see ppl taken to him easily.