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

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 25^th 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 25^th 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 25^th 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 25^th 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 25^th 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 25^th 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 25^th 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 25^th 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 25^th Amendment after its passage. Even more dangerously, if the resolution failed to gain a two-thirds majority in either house, the 25^th 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 25^th 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 25^th 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 25^th 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 25^th 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 25^th 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 25^th 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.