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

    January 30, 2018 // 14 Comments »


    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 © 2017. 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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    Posted in Democracy, Trump

    Almost a Year of Trump: Where Things Stand

    December 27, 2017 // 27 Comments »



    I awoke this morning to find it was not Judgement Day but simply morning.


    A little cloudy, might have some snow later. Things looked pretty normal. I ran the usual checks to make sure I hadn’t awoken in some alternate reality, that I had not slept through a time vortex and risen in a world run by super-intelligent apes, that sort of thing. Nope, regular everything. The milk in the fridge that was a little on edge yesterday morning was kinda ripe today.


    Trump’s been in office for six almost a year and everything is… sorta normal. He’s a crappy president, pretty much as we expected. I don’t see he’s done much good, but on the other hand looking over what the media, academics, and those who speak for us all, Colbert, Meyers, Samantha Bee, and George Takei have been predicting would have gone down by now, all and all things are not so bad.


    — No nuclear wars.

    — No wars with China, Russia, Iran or North Korea. Same wars Bush and Obama started or escalated still going strong.

    — No diplomatic breakdown because of Taiwan. No change in U.S. “Two China Policy.”

    — NATO and alliances with Australia, Japan, etc., intact.

    — No mass resignations among government employees. CIA, NSA, and State Department still open for business.

    — The people the media has been non-stop predicting would be fired/quit/indicted — Reince, McMaster, Mattis, Spicer, Ivanka, DeVos, Kushner, Mueller, Sessions, Tillerson, et al — are all mostly still around.

    — Trump has not annexed the Sudetenland.

    — No coups.

    — 1st Amendment, and others, still nicely in place.

    — No impeachment, no invocation of Emoluments Clause, no use of the 25th Amendment, no formal charges of treason.

    — No roundups of POC, women, journalists, or LGBTQ people. Deportations are still below Obama-era headcount of 2.5 million deported, highest under any presidency.

    — Stock market did not crash. Doing well, actually.

    — No psychological break down by Trump leading to anarchy, war, etc.

    — No signs of capitulation to Putin. We still own Alaska.

    — U.S. justice system and courts still open and functioning.

    — Absolutely nothing has changed regarding abortion rights, whatever the f*ck our healthcare system is, marriage equality… nope, steady state.


    In the interest of presenting a balanced view of events, here is a hysterical rebuttal to the points made above:

    It’s too early! OMG, it has only been six about a year. How’s the Kool-Aid nazi lover? As a white man of privilege who isn’t gay what do you know anyway about suffering, so f*ck you. The Resistance has held Trump back for now by posting on Facebook, but what about tomorrow?!? Luckily we marched with pussy hats or things would have been worse. You don’t know how bad it is because most of the changes are hidden. America’s prestige abroad is trashed and Angela Merkel is leading the Free World! Putin’s playing 3-D chess and just waiting to make his move. Any day now Robert Mueller is going to announce ____ and the sh*t will come down. We are nasty, fierce, persistent, and have excellent vocabularies. And did you see what anonymous sources told the NYT today? At least Dr. Who is a woman, so that means Hillary really won, doesn’t it?




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    Copyright © 2017. 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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    Posted in Democracy, Trump

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