vision 2020

The 25th Amendment Won’t Save Us From a Roided-Out Trump

Are either of these dudes going to remove Donald Trump’s presidential powers, even for a moment? Photo: Nicholas Kamm/AFP via Getty Images

When the president’s COVID-19 diagnosis was acknowledged, there was naturally a lot of interest in what would happen if he were to become so ill that he was incapacitated to do his job, even temporarily. At the time I wrote about the three incidents in which two presidents (Ronald Reagan and George W. Bush) invoked Section 3 of the 25th Amendment upon undertaking surgical procedures and made George H.W. Bush and Dick Cheney, respectively, acting presidents of the United States very briefly. This remains an option for Donald Trump if he finds that he is no longer doing as well as he currently claims.

But with the president seeming to act as his own chief physician, and conducting such odd stunts as riding in his SUV motorcade around Walter Reed Medical Center not long before he succeeded in obtaining a discharge, following a disturbingly brief hospitalization, inquiring minds are beginning to wonder about Section 4 of the 25th Amendment:

Section 4 involves involuntary measures to declare the president incapacitated. Here’s the first paragraph:

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.

That possibility is beginning to circulate in part due to the president’s rather odd conduct since entering Walter Reed, and in part because of concerns about the possible psychological impact of the treatment he is continuing to receive, as former Solicitor General Neal Katyal notes:

Here’s another distinguished law professor:

Now I’d be shocked if anyone expects Trump to call for his own temporary removal from office for “emotional instability,” and as the second paragraph of Section 4 of the 25th Amendment makes clear, he can most definitely get in the way of Pence pushing him aside:

[W]hen 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.

So, only Mike Pence can trigger involuntary removal of Trump’s powers, and even if he does, and Trump challenges the maneuver, Pence would have to muster the support of a majority of the Cabinet and a supermajority in both Houses of Congress to pull it off.

To summarize, the president and vice-president have an absolute monopoly on initiating the 25th Amendment. This is a president who (a) has set an extremely high bar for presidential behavior previously considered aberrant, and (b) cannot admit he’s made mistakes or told lies, much less that this latest lie-encrusted mistake incapacitates him and reinforces the most important Democratic talking point for rejecting him in November. And this is a vice-president who (a) has made egregious sycophancy his signature, and (b) owes his own presidential hopes almost entirely to MAGA respect for him as Trump’s successor-in-waiting.

Sure, if the president is fully laid low by COVID-19 and cannot function at all, then Trump loyalists might beg Pence to step in as both acting president and as the GOP candidate for president (though this latter maneuver is complicated, since ballots have already been printed and voters are voting). Short of that, the Chief Narcissist and Chief Sycophant aren’t likely to make a move.

The 25th Amendment Won’t Save Us From a Roided-Out Trump