Saturday, July 01, 2017


Michael Isikoff reports that a number of Democrats in Congress are seriously looking at the use of the 25th Amendment to possibly remove President Trump from office:
... 25 House Democrats, including the ranking member of the House Judiciary Committee, are ... backing a bill that would create a congressional “oversight” commission that could declare the president incapacitated, leading to his removal from office under the 25th Amendment to the U.S. Constitution.

At 12:56 p.m. Thursday, barely four hours after Trump tweeted attacks against MSNBC cable host Mika Brzezinski in crude, personal terms, Rep. Jamie Raskin, D-Md., the chief sponsor of the bill, sent out an email to his colleagues, urging them to get behind the measure, writing it was of “enduring importance to the security of our nation.”

“In case of emergency, break glass,” Raskin told Yahoo News in an interview. “If you look at the record of things that have happened since January, it is truly a bizarre litany of events and outbursts.”
The 25th Amendment offers a way to remove a president from office who is "unable to discharge the powers and duties of his office." The authors of this amendment seem to have had in mind a significant incapacity -- brain damage after an assassination attempt, severely diminish mental capacity after a stroke -- but Congressman Raskin and two dozen other House members want to use it to punish ... tweeting? Yes:
Asked if Trump’s latest tweets ... strengthened the grounds for invoking the 25th Amendment, Raskin replied: “I assume every human being is allowed one or two errant and seemingly deranged tweets. The question is whether you have a sustained pattern of behavior that indicates something is seriously wrong.”
I know this is an immature and appalling Trump habit, but Raskin and company want to medicalize it:
... Raskin, a former constitutional law professor, has seized on some largely overlooked language in Section 4 [of the amendment] as the basis for his bill. It turns out it doesn’t have to be the Cabinet that makes a finding of presidential incapacity. The section also permits “such other body as Congress may by law provide” — along with the vice president — to reach the same conclusion.

... Raskin’s bill ... calls for the creation of an “Oversight Commission on Presidential Capacity.” The commission would be a nonpartisan panel appointed by congressional leaders composed of four physicians, four psychiatrists and three others — such as former presidents, vice presidents or other former senior U.S. government officials. The commission, if directed by Congress through a concurrent resolution, would be empowered to conduct an examination of the president “to determine whether the president is incapacitated, either mentally or physically.”
Look, I loathe Trump as much as all of you do. But let go of your loathing for Trump for a second and ask yourself whether there's something a tad, um, authoritarian about declaring a head of state effectively insane just because he's immature, ignorant, incurious, lazy, and subject to fits of anger. We're horrified when tyrants confine opposition leaders in mental hospitals to get them out of the picture. How different is that from this?

How would we feel if the GOP did this to a Democratic president? Imagine if Republicans had sought to remove Bill Clinton by convening a panel of physicians and psychiatrists from fine Bible Belt universities who went on declare that his "sex addiction" rendered him psychologically unable to serve as president. Is that inconceivable? Could a future Republican Congress argue that President Kamala Harris has a disqualifying rage disorder because she's insufficiently deferential to men?

On the other hand, it's even harder to remove a president using the 25th Amendment that it is using impeachment power, as Isikoff notes:
Indeed, in some respects, the political obstacles to executing the 25th Amendment are even greater than impeachment, notes Joel K. Goldstein, a professor of law at St. Louis University. Under its provisions, if a president challenged a finding of incapacity and demanded that he or she be reinstalled in office, it would require two-thirds of both chambers to block the commander in chief from doing so. (By contrast, it only takes a majority of the House to impeach a president, although two thirds of the Senate must vote to convict and remove the president.)

Moreover, as Goldstein notes, even if Congress were to create the body called for in Raskin’s bill, it couldn’t act to declare the president incapacitated without the concurrence of the vice president. That means Vice President Mike Pence could effectively block any move to invoke the 25th Amendment option.
Even though it could hand him the presidency, there's no way Mike Pence will ever go along with this. Yes, there may eventually be a broad consensus that Trump must go, as there was for Richard Nixon by the summer of 1974. But if that day comes, a large percentage of Republicans will continue to back Trump, as they did Nixon. Pence, looking toward the next election cycle, will not want to alienate those voters. So he'll never endorse the use of the 25th Amendment.

Under those circumstances, why are these House Democrats wasting their time on this? It's a bad idea -- it can't happen for political reasons, and impeaching Trump for high crimes and misdemeanors would be much better for the country than trying to medicalize his ignorance and inappropriate temperament.

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