How many different avenues, do you think, did Trump’s opponents use to try to remove him from office? Emoluments! Impeachment! Moral Character! The Electoral College! Jack Marshall over at Ethics Alarms detailed a list of twenty, labelled A through T. The one that always struck me as particularly, egregiously, cripplingly stupid was Plan “E”: “Trump is mentally ill so this should trigger the 25th Amendment.” Jack further describes it as “The old Soviet theory that anyone who disagrees with the authority, in this case, progressives, must be crazy.”
To be fair to Jack, I think that was a little tongue-in-cheek; But to expand, Trump often displayed quirks that, if displayed by a person who wasn’t the President of the United States, might be described as being simple; He spoke poorly, he often lied, he wrote using a sharpie, and his speech notes looked like something a child writing their first letters might produce. Calling him “quirky” is an understatement, akin to calling an insane person “eccentric” only because they also happen to be rich. Some Democrats, including Nancy Pelosi, opined at various times that those “quirks” were enough to invoke section 4 of the 25th amendment, and remove Trump from office.
The questions today are:
What is The 25th Amendment?
Previous to the writing of the 25th Amendment, in the case of the death of a President, Article II, Section 1, Clause 6 of the constitution would apply:
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President (…)
The problem with that was that legislators weren’t sure if in the case of a Presidential death, whether the Vice President became the President, or if he merely assumed the duties of the job. When President Harrison died 31 days after taking office in 1841, congress eventually made his VP, John Tyler, President for the remaining 3 years, 11 months of the term, but it was always seen as an open question.
There was also the case of Woodrow Wilson, who had a debilitating stroke in 1919. His wife, Edith, and their physician, Cary Grayson, hid that from the American public until the last few months of Wilson’s term, with Edith running a defacto shadow government in the years between. By the time congress found out about Wilson’s incapacitation they were loathe to take action, because 1) They weren’t exactly sure what to do and 2) The election was already underway. Eat your heart out Hillary, Edith Wilson had you beat by 100 years.
Another issue was that prior to 1965 when the 25th Amendment was ratified, the office of the Vice President had been vacated sixteen times, for various reasons, and there wasn’t a clear method to replace them.
Those seemed like significant issues. So a constitutional amendment was proposed. Without getting into the nitty gritty of 1960’s politics, the final text of the 25th Amendment was as follows:
Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Section 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.
Section 3 is interesting; Dubya used it a couple times, making Cheney the defacto President while Bush was under anesthesia, basically, Bush provided a note to the House and Senate: “I’m about to have surgery, if North Korea does something stupid over the next couple of hours, this dude gets the nuke codes.” But I digress;
How Did That Apply to Trump?
It really didn’t. I know section 4 is some pretty heavy language, so I’m going to break it down a little, but I also want to take a moment to talk about the concept of “Newfound Respect”.
Newfound Respect?
Newfound Respect is when partisans discover a section of law, or a rule, or a policy, or some kind of historical precedent. They didn’t know about it five minutes ago, they don’t really care about it now, they definitely haven’t taken the time to read the context around it, but they think it does something they want to get done, so they’re going to pretend they’re experts in the feild, assert that it does apply, and that it’s very, very important. They’ll use phrases like “Key parts of our Democracy!” or “Constitutional Requirement!”, which sound very impressive in theory, but in reality they’re speaking very authoritatively, directly out their ass. And then, when their theory breaks down, like it’s almost certain to do, they’ll mewl like small woodland creatures partway through a woodchipper and assert that the system failed them… Which, by the way, doesn’t exactly arouse faith in the system.
Back to Trump!
That breakdown I promised:
First off, Mike Pence had to be involved. He would have to decide that President Trump was unable to discharge the duties and powers of his office, and to deal with that, he would have to gather a majority of the Cabinet and go to war with Trump.
He would have to produce a letter to that effect, and deliver it to Nancy Pelosi and Chuck Schumer. That would be enough to actually remove Trump from office…. For about 34 seconds. That’s how long it would take Trump to scribble furiously on a cocktail napkin that no, he wasn’t incapacitated, crumple it up, and fling it at the faces of Pelosi and Schumer. Then he would be President again. That is, unless Mike Pence and the Cabinet leaders wrote a letter to Pelosi and Schumer within four days that basically says: “No, I really mean it, this dude is cray cray.”.
That would start a process. Both houses of congress would be required to assemble within 48 hours and hold a vote in both the house and the senate. Removal of the President would require a two-thirds majority vote, and if that couldn’t be achieved, Trump would continue to be President.
When you look at the context in which the 25th Amendment was framed, it’s obvious that the amendment was supposed to deal with Presidential vacancies and incapacitations; It wasn’t even supposed to remove simpletons, it was supposed to control against vegetables. Stupid people can be President, so long at they can convince the electorate to vote for them. This is why a contested removal requires a 2/3rds majority in both houses: It wasn’t supposed to be a partisan popularity contest. Hell, Impeachment only requires a 2/3 majority in the Senate, the house can impeach with a simple (50%+1) majority. And that highlights yet another reason the 25th was a stupid theory: Whether or not you thought Trump was fit for office was largely a popularity contest; The people that liked him supported him, and the people that hated him with all the passion of 1000 burning stars wanted him gone. And if you’re going to remove a President based on a popularity contest, you might as well take the path that requires fewer votes.
What about Biden?
I’ve made some colorful jokes recently; How Joe Biden is a prop from Weekend at Bernie’s, How Benny Hill music should start playing whenever he boards or disembarks from Air Force One, How we’re not sure if it’s Joe or Major biting the White House staff and pooping in the halls. Those are unfair. I know they’re not true, or at least in the case of the Air Force One stairs, it’s true, but sad. When you compare Joe Biden in 2021 to Joe Biden from the Obama years, or Joe Biden 20 years ago, the difference is incredibly stark. I’m actually not going to link to videos, because this is one of those things where if you believe me, you don’t need the link, and if you don’t believe me, you’ll think I’m cherry-picking. Do your own damn work, plebs: Go to YouTube, search “Joe Biden Speech 2016” and watch a video or two, and then turn on CNN to compare. Even with a sympathetic news organization, you simply can’t cover the fact that Joe is 78 years old and slipping.
Added to that, Kamala Harris is hangry. She loves the idea that she might be the first female President (Not counting Edith). The first black President. The first Asian President. First first first first first. She’s not particularly interested in being a good or popular President. And I don’t think she could be; She dropped out of the primary before the embarrassment of losing brutally in her own home state, and her record is abysmal.
So when you have Joe Biden’s relative infirmity alongside Harris’ ambition, I think the 25th Amendment isn’t as outside the pale as it was for Trump. It’s more likely that Joe just dies of something, and that would be a much cleaner path for Harris (Joe Biden’s food taster should be getting hazard pay.), but I think The Plan is probably for Joe to retire in 2024, and have Harris step up. Joe is already slipping and calling her “President Harris” every now and again. Is that a mistake? A Freudian Slip? Did Joe think it was 2025? Probably the former. Probably.
But if we get to the point where Joe isn’t capable, and it’s obvious that he isn’t capable, which isn’t impossible, because there’s a long haul between now and 2024, then as opposed to a situation where a vote for or against the removal of Joe Biden is a direct partisan popularity contest, we’d have a situation where we’d want to legitimately look at the merits of removal. Frankly, if it got to the point that the 25th was actually invoked, Biden probably wouldn’t fight it; I have the impression he ran because he wanted to beat Trump, and the Democrat bench was really shallow and he was afraid they’d blow it, more than he actually wanted to be President. If he did contest it…. God that would be messy. From a partisan perspective: There’s no chance that a Republican takes office following Harris making a section 4 invocation, the VP becomes the President, and unless Harris tapped a Republican to be VP, the rest doesn’t even warrant conjecture. But how would Republicans or Democrats vote? I don’t know… And we’re pretty deep into the reeds of “what if”.
It does pay to note that what I said above re: No Chance for a Republican also would have applied if Pence had invoked section 4 on Trump and succeeded: There was no chance that Pence was going to tap a Democrat. There was some Democrat fanfiction that Trump could be removed and Hillary Clinton, or Nancy Pelosi would get crowned. That was never going to happen.
Basically: The people calling for Trump to be removed under the 25th were huffing gas, but there’s a slight chance that we’ll actually see a Section Four removal in the next couple of years.
The 25th Amendment
Jack ("Double L") Marshall
Congratulations! I’ve read your great comments for ages on Ethics Alarm, and was excited to see your own spin on a blog that breaks down politics and current events with humor & insight. Fantastic stuff! Thank you.