Why Invoking the 25th Amendment Just Won’t Work

As President Donald Trump continues to descend into fits of madness and rage, the discussion frequently turns to the 25th Amendment as a potential remedy.

George Conway III (attorney, Trump critic, and wife of counselor to the president Kellyanne Conway) published a superb piece in The Atlantic today, a must-read entitled Unfit for Office.

There is a scene in The Untouchables where beat cop turned Treasury Agent Jimmy Malone (Sean Connery, in an Oscar-winning role) threatens his friend (and Chicago Police Inspector) Mike with the line,

“l’m gonna rat you out for all the shit that l know that you’ve done!”

That’s sort of what Conway does to Trump in his Atlantic piece, covering every personality flaw and every bad deed from the collapse of the Trump real estate and casino empire of the 1980’s through the current impeachment case. The subject of the 25th Amendment is mentioned, as it remains, a Constitutional remedy to a president like Trump.

While the 25th Amendment is a useful tool in some cases, I doubt it was even considered when drafted that the current circumstances could arise.

Not only is President Donald Trump facing impeachment, Vice President Mike Pence is implicated in the Ukrainian scandal as well, as is the Secretary of State (Mike Pompeo), the Attorney General (William Barr), and the Secretary of Energy (Rick Perry). The Secretary of Transportation (Elaine Chao) is the wife of the Senate Majority Leader (who would preside over the Senate vote to remove Trump), raising the question of whether one or the other (or both) would need to recuse.

The Veterans Administration and the Department of Homeland Security have acting leaders, so there would certainly be a legal battle over whether Trump could appoint someone else to the role (someone assured to be 100% loyal) and then have that appointee cast a vote to maintain Trump’s presidency prior to their Senate confirmation?

Also, with those two vacancies to be considered, would the requirement be 8 votes of 15 (per statute requiring a majority), 7 votes of 13 (a majority of those currently confirmed), or 8 votes of 13 (a majority of the 15 offices with no votes permitted for unconfirmed Secretaries)?

It is also critical to remember that the involuntary invoking of the 25th Amendment (such as the VP seizing power with the support of the Cabinet in the scenario discussed) is a very brief interlude, as short as 4 days (if the President takes control back) but likely no longer than 21 days (if Congress must decide fitness).

If the President declares himself fit for office (which Trump absolutely would), it would require a 2/3 vote in both the House and Senate to remove him from office. Remember, impeachment and removal only require a majority in the House and a 2/3 vote in the Senate, meaning the process for removal by the 25th Amendment is more stringent than impeachment, and no president has been removed by impeachment given the high bar to be reached. Is it reasonable to expect a 25th Amendment challenge would succeed?

And can an argument really be made that Trump has declined mentally? For example, take this tweet yesterday from Pulitzer Prize-winning investigative journalist David Cay Johnson, who has covered Trump for more than 30 years:

Caveat emptor, let the buyer beware. While Trump is feeling more liberated than ever, he is not crazier, he is not less stable. He knows he has one election left and that winning that election may be the key to avoiding prison. He will scorch the earth and burn the government (and that of America’s allies if he can) to the ground hoping that discrediting everyone else levels the playing field for 2020 and that his base, if properly tended to with promises, rhetoric, and lies (or simply, Fox News) will turn-out to defend him next November.

Finally, for Vice President Pence and the cabinet, this would be a suicide mission. The President cannot fire the Vice President. But he can ruin him. He can implicate him in scandal (like Richard Nixon did to Spiro Agnew). He can remove him from the ticket (and 2020 is an election year). At this point, Pence is heavily implicated in the Ukraine scandal. He may need a pardon from Trump, and ascending to the presidency (even if for the remainder of Trump’s term, no matter how unlikely that is) would not provide that absolution.

The President can fire the cabinet officials, and he would, within minutes of regaining control and likely very publicly on Twitter. Then he would pack the offices with loyalists (maybe even family members) guaranteed to never threaten him again. Sure, the nepotism statutes would seem to prevent that, but the Department of Justice made exceptions for Trump’s daughter Ivanka and her husband Jared Kushner to be part of the White House staff, so long as the roles were unpaid. As with Pence, Attorney General Barr may need a pardon soon. Is it inconceivable that he would offer guidance permitting the Trump children as Cabinet Secretaries and then spending tax dollars to have the Department of Justice defend that ruling in a court battle?

Remember, the fight only needs to last through November 2020. If Trump loses the election, the ongoing legal battles become irrelevant. If he wins, he would be nearly impossible to remove from office by impeachment or the 25th Amendment AND the statute of limitation on most of his alleged crimes would expire while he was protected by the office.

Invoking the 25th, and Trump’s subsequent survival, would also seemingly validate Trump’s claims of a “deep state” and would likely allow him to purge at will, almost like McCarthyism, where people would be accused and have to prove their innocence (and loyalty to their accuser) or be deemed unfit to hold their office.

Impeachment is the better course of action and Trump will continue to provide plenty of evidence to be used in the case against him.  

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