• The People v. Trump: Is There a Case for the 25th Amendment?

    September 6, 2018

    Tags: , , ,
    Posted in: Democracy, Trump



    (This post originally ran in January, the last time “Use the 25th!” was trending.)

    The media is of one mind: Donald Trump is mentally incompetent and must be removed from office before he blows us all to hell. It says so on Vox, New York Review of Books, CNN, The Intercept, CNBC, The Nation, Bill Moyers, Salon, and the NYT. A new book, The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President, concludes “Trump’s mental state presents a clear and present danger to our nation and individual well-being.”

    The solution is in the 25th Amendment to the Constitution. The 25A creates a mechanism aside impeachment to remove an “incapacitated” president, and Trump’s mental state, some believe, qualifies him. Is there a case?


    Dr. Bandy Lee, one of the editors of The Dangerous Case of Donald Trump, says yes. Her primary evidence is tweets Trump sent threatening Kim Jong Un. She really has no other ammunition: no doctor who says Trump is insane, including Lee, has examined him. No doctor that has examined him says he is insane. Third party anonymous accusations of incompetence are shot through with gossip. A book written by a Hollywood trash reporter is otherwise held up as critical evidence of the inner workings of the president’s mind.

    So is there a case without the tweets? Not really. Lee adds while Trump has not committed violent acts against himself or others, his “verbal aggressiveness, history of boasting about sexual assault, history of inciting violence at his rallies, and history of endorsing violence in his key public speeches are the best predictors of future violence” and thus concludes he will destroy the world. Lee also weakly points to Trump “being drawn to violent videos.” Oh my.

    We might instead look at the actual decisions Trump has made, and those of his predecessors. One president used nuclear weapons to decimate two cities worth of innocents, and a set of presidents squandered hundreds of thousands of American lives watering Vietnam with blood. Ronald Reagan was famously caught over an open mic saying he was going to start bombing the Soviet Union in the next few minutes. Another president lied about WMDs to launch an invasion of Iraq in part to avenge his dad. The same guy mocked North Korea’s leader as a pygmy. Obama said he “will not hesitate to use our military might” against the North, knowing that meant Armageddon. Historical psychiatrists say half of our past presidents may have suffered some sort of mental illness. If Trump is dangerous as president, he seems to have company.

    But how can we know? Trump will never voluntarily undergo a mental competency exam, though courts can order people to submit. But even Lee, who met with Congressional representatives to press the case Trump is insane, admits this is unlikely to happen. “Many lawyer groups have actually volunteered to file for a court paper to ensure that the security staff will cooperate with us,” Lee said. “But we have declined, since this will really look like a coup, and while we are trying to prevent violence, we don’t wish to incite it through, say, an insurrection.”


    There doesn’t seem much of a case. Still, people arguing Trump is insane and must be removed from office point to the 25th Amendment to the Constitution as just what the doctor ordered.

    The Constitution did not originally lay out (Article II, Section 1, Clause 6) what happens if a president dies or becomes incapacitated. It was just assumed the Vice President would serve as “Acting President.” The 25A, passed after the Kennedy assassination, created the first set of rules for this sort of situation.

    The 25A has four short subsections. If the presidency goes vacant (for example, fatal heart attack), the vice president becomes president. If the vice-presidency goes vacant, the president chooses a new VP. If the president knows he’ll be incapacitated (unable to carry out his job, for example, due to scheduled surgery), he can voluntarily and temporarily assign his duties to the vice president. If the president is truly incapacitated (unconscious after an assassination attempt) and can’t voluntarily assign away his duties, the VP and cabinet can do it for him, with a two-thirds majority confirming vote of the House and Senate.

    In the minds of the “Trump is Insane” crowd what matters most is that never-used fourth subsection, the incapacitation clause. People claim because Trump is insane he is unable to carry out his duties, and so Mike Pence, et al, must step in and transfer power away from him today. Trump would legally exist in the same status as Grandpa Simpson in the nursing home, and Pence would take over. Among other problems, this thinking imagines the 25A’s legally specific term “unable” means the same thing as the vernacular “unfit.” An unconscious man is unable to drive. A man who forgot his glasses is unfit, but still able, to drive. The 25A only refers to the first case.


    The use of the 25A to dethrone Trump is the kind of thing non-experts with too much Google time can convince themselves is true. But unlike much of the Constitution, where understanding original intent requires the Supreme Court and a close reading of the Federalist Papers, the 25A is modern legislation. We know the drafters’ intent was an administrative procedure, not a political thunderbolt. The 25A premises the president will almost always invoke succession himself, either by dying in office, or by anticipating he will be unable to discharge his duties, as in 2007 when George W. Bush went under anesthesia for his annual colonoscopy and signed things over to his vice president for a few hours.

    The reason the 25A is not intended to be used adversarially is the Constitution already specifies impeachment as the way to force an unfit president out against his will, his unfitness specifically a result of “high crimes and misdemeanors.” The people who wrote the 25A did not intend it to be an alternate method of impeachment or a do-over for an election.

    It has to be so; the Constitution at its core grants ultimate power to the people to decide, deliberately, not in panic, every four years, who is president. Anything otherwise would mean the drafters of the 25A wrote a back door into the Constitution that would allow a group of government officials, many of whom in the Cabinet were elected by nobody, to overthrow an elected president who they simply think has turned out to be bad at his job.

    Accusations of mental illness are subjective, unprovable in this case, and alarmist, perfect fodder to displace the grinding technicalities of Russiagate. Denouncing one’s political opponents as crazy was a tried and true Soviet and Maoist tactic, and a movie trope where the youngsters try to get the patriarch shut away to grab his fortune. We fear the mentally ill, and psychiatric name calling against Trump invokes that fear. “The 25th Amendment would require, for mental incapacity, a major psychotic break,” said one former Harvard Law School professor. “This is hope over reality. If we don’t like someone’s politics we rail against him, we campaign against him, we don’t use the psychiatric system against him. That’s just dangerous.”


    People saying the president is mentally ill and the 25A is the cure know they have no rational basis for their position. They know the 25A is not a work-around for impeachment proceedings they are unlikely to see. They are aware they are unethically trying to medicalize bad leadership, damning it with the taint of mental illness. They know Mike Pence and Trump’s own cabinet will never sign off on a power transfer, and they don’t want Pence in the Oval Office anyway. They know this is all kabuki, liberal fan fiction, a shadow play. The talk of mental illness and the 25A is simply political sabotage ahead of the 2018 mid-term elections.

    Trump’s time in office is finite, but what happens around him will outlast his tenure. It is dangerous to mess with the very fundamentals of our democracy, where the people choose the president, replacing that with a kabal called into session by pop psychologists. This is an attack on the process at its roots; you yokels voted for the wrong guy so somebody smarter has to clean up.




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    Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

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  • Recent Comments

    • Joe said...

      1

      Another logical analysis of an important topic by PVB – and one which he’ll undoubtedly get a lot of irrational hate mail about too. It’s equally unfortunate this isn’t the first time folks here in the United States have tried to turn political issues into “Public Health Crises,” just the most recent and highest profile example. Sad times for democracy indeed, when we’re dipping into the same playbook used by the Soviets and Maoists.

      01/30/18 10:28 AM | Comment Link

    • Jonathan L. Seagull said...

      2

      The viewpoint from those surrounded by NYT and CNN may lead someone to think Trump is insane. But an actual look at his words and deeds shows that he is not insane. He’s extremely stupid, and as evil as you have to be for the job, but he is also great at selling weapons contracts.

      01/30/18 10:41 AM | Comment Link

    • John Poole said...

      3

      “You yokels voted for the wrong guy” Really? I think they voted for Trump because they saw Hillary as crazy
      and itching to wage a possible nuclear war.

      01/30/18 11:45 AM | Comment Link

    • Traven said...

      4

      Trump is a certifiable “narcissistic sociopath”. One needn’t be a psychiatrist or psychologist to observe this from his obsessive self aggrandizing speech. That is not crazy but it is the profile of most dictators. Il Duce Mussolini was probably the most extravagant example of this mental state. These kind of people are seen around and cause great fear and anxiety but seldom end up in an insane asylum. They can be dangerous.

      01/30/18 12:22 PM | Comment Link

    • Rich Bauer said...

      5

      After the GOP gets crushed in the 2018 elections, it won’t be the Dumbocrats wishing the presidense was removed from office.

      01/30/18 2:57 PM | Comment Link

    • John Poole said...

      6

      Traven:
      George Bush has caused more death, chaos and destruction than Trump will likely ever create and Bush is a lauded ex POTUS who can socialize like any normal 1% guy. So one has to conclude that the American public is certifiably insane to not have insisted he and along with maybe twenty other monsters who lied their way into invading Iraqbe imprisoned or executed for his crimes against humanity. No, I did not vote for Trump nor would I ever.

      01/30/18 3:07 PM | Comment Link

    • Rich Bauer said...

      7

      JP,

      Yes, it is the DUMBEST COUNTRY ON THE PLANET.

      01/30/18 3:13 PM | Comment Link

    • John Poole said...

      8

      Bauer: I’ll back you up on your mantra. Indeed. one fucked up sea to shining sea congregation of idiots.

      01/30/18 3:22 PM | Comment Link

    • Traven said...

      9

      John.. Bush was bad but I beg to differ with you re Trump. T. has only been in office a year and is just sussing out how much he can get away with.So far he has only gutted long term laws that will effect our populations health by polluting our air and water and removing health benefits. These deaths are not the war making kind so only happen one ata time under th eradar. Hidden from us are the immediate deaths resulting from the increase in drone murders and assassinations by special ops in 179 countries across te world. Trump has three more years to go.

      01/31/18 7:51 PM | Comment Link

    • John Poole said...

      10

      Traven- Bush was the purist of Americans. He wanted ALL “homelanders” to continue shopping, watching TV and riding down Magic Mountain while ordering the slaughter of non Americans far beyond our shores. Trump is more discerning. The only
      Americans he cares about are in his own caste. The rest of us are on our own and are responsible for our own safety and well being. We shouldn’t have any illusions that our government cares about us. I sort of find that liberating.
      Trump may have 7 more years to go if the Democrats run Hillary.

      02/1/18 9:04 AM | Comment Link

    • Rich Bauer said...

      11

      Both parties, two wings of the Wall Street War Party, have blood on their hands.

      02/1/18 9:26 AM | Comment Link

    • John Poole said...

      12

      Bauer- agreed. Maybe Stein -had she won- would have continued feeding the war making beast. It seems to be a compulsion and obligation for anyone who becomes POTUS.

      02/1/18 10:57 AM | Comment Link

    • Kali said...

      13

      The last paragraph is on the money. Neoliberals would like nothing more than to run the country, if not the world, by cabal (good choice of words btw), disregarding inconvenient elections as necessary. This is the basic truth that the Alex Jones deplorable crowd gets that more educated and correct-thinking liberals can’t seem to get through their skulls. Such “liberals” are abetting a vast campaign of elite subversion with their attacks on “populism” and “nationalism” (i.e. democracy for the rest of us, rather than the globalist cabals). These neoliberal shills are the new Dittoheads.

      02/2/18 2:07 AM | Comment Link

    • John Poole said...

      14

      Kali- today’s financial elite (cabal) with its global hegemony fever reminds me of the early Christian cult-determined to be the final arbitrator of who is or isn’t worthy of transcendence into the ether. Would Jesus be pushing bitcoin as a viable alternative to the temple money changer algorithym Maybe.

      02/2/18 10:09 AM | Comment Link

    • Rich Bauer said...

      15

      Just to recap: before Trump was elected, his voters knew he believed Obama was an illegal alien, that Ted Cruz dad killed JFK, and he was a sexual pervert. The problem it seems is there isn’t a mental illness test for voters.

      09/6/18 8:23 AM | Comment Link

    • Helped by #clinton a fascist who drops 70,000 bombs per year contro… | Dr. Roy Schestowitz (罗伊) said...

      16

      […] Helped by #clinton a fascist who drops 70,000 bombs per year controls an empire and it's not easy to get him out https://wemeantwell.com/blog/2018/09/06/the-people-v-trump-is-there-a-case-for-the-25th-amendment/ […]

      09/6/18 8:53 AM | Comment Link

    • MAA said...

      17

      Trump is not unlike many of his fellow citizens, regardless of whether they voted for Tweedledum or Tweedledee in 2016. In a 2006 article entitled “Diagnosing the U.S. ‘national character’: Narcissistic Personality Disorder,” Robert Jensen, a journalism professor at UT-Austin, observed that if we treated the US as a person, one condition from the Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association would stand out: Narcissistic Personality Disorder. https://zcomm.org/zcommentary/diagnosing-the-u-s-national-character-narcissistic-personality-disorder-by-robert-jensen/

      Maybe Nietzsche was right: “In individuals, insanity is rare; but in groups, parties, nations, and epochs it is the rule.” — Friedrich Nietzsche

      09/6/18 10:53 AM | Comment Link

    • Rich Bauer said...

      18

      If you can’t remove him, sabotage works just as well.

      Kelly? Bueller? Bueller?

      09/6/18 2:14 PM | Comment Link

    • Rich Bauer said...

      19

      Treason is also failure to act.

      Keys to the Kingdom come: Every psychiatric Fitness-for-Duty evaluation involves assessing the problem-solving ability of the person, relevant to specific job duties; which includes gaining an understanding of the thought processes that are used in the process of problem-solving.

      Trump’s public statements have provided little, if any, transparency to his inner thought processes. Extremely frequently and most typically, Trump will begin with a statement regarding his perception of a situation (a perception that may or may not contain verifiably false information) and then proceed to providing a conclusion or an opinion regarding the “necessary” course of action, with little verbalization of the logical analysis or thought processes that led from “point A” to “point B.”

      Often, rather than providing any information as to alternatives that he considered and reasons for accepting or rejecting those alternatives, any “explanation” of Trump’s process of problem solving will be nothing more than a (frequently rambling) discourse regarding his feelings, his emotions and his (frequently grandiose) perceptions of his abilities. Thus, there is significant suggestion that Trump’s thought processes are inadequate to the position of being president of the United States.

      If the implications of the New York Times op-ed are accurate, there would be strong evidence that Trump could not pass a psychiatric Fitness-for-Duty examination appropriate to his position.

      Richard Painter, who served as chief White House ethics lawyer in the George W. Bush administration, also agrees that Donald Trump should not have access to nuclear weapons. In a phone interview, Painter said, “Trump’s mental health puts the country at risk,” and suggested that if Trump were to order the unprovoked use of nuclear weapons, “the vice president could invoke the 25th Amendment and very quickly try to gain control of the situation, along with a majority of the Cabinet.”

      09/6/18 2:21 PM | Comment Link

    • There is No Patriot or Spartacus Here—Just Politics – Live Trendy News said...

      20

      […] book and Omarosa’s unheard recordings: the man is clinically insane, has the mind of a child, acts impulsively, and is thus dangerous. Same stuff but now 18 months shinier and […]

      09/8/18 9:56 AM | Comment Link

    • There Is No Patriot Or Spartacus Here – Just Politics | peoples trust toronto said...

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      […] Omarosa’s unheard recordings: the man is clinically insane, has the mind of a child, acts impulsively, and is thus dangerous. Same stuff but now 18 months shinier and […]

      09/11/18 5:25 PM | Comment Link

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