25th Amendment unlikely to be invoked over Trump's mental health

- 17.22

Donald Trump’s description of himself as a “very stable genius” sparked new debate this weekend about the 25th Amendment, but invoking the provision to remove a president from office is so difficult that it’s highly unlikely to come into play over concerns about Trump’s mental health, a half-dozen lawyers with expertise on the measure said.

The amendment’s language on what could lead a president to be involuntarily removed from office is spare, saying simply that the vice president and a majority of the Cabinet could take such a step when “the President is unable to discharge the powers and duties of his office.”

“I think it’s both its strength and its weakness,” said Jay Berman, a former chief of staff to Sen. Birch Bayh (D-Ind.), who helped craft the amendment in the 1960s. “The answer is not provided in the 25th Amendment...It just does not provide that certainty or specificity. That might be easier in the context of physical incapacity, but it would be a lot harder in the case of mental incapacity.”

The galvanizing event behind the 25th Amendment has always been clear: President John F. Kennedy’s assassination and the ensuing realization that the nation had no obvious recourse if Kennedy had survived but been unable to fully function. The amendment has drawn attention only occasionally in the intervening years, and no one has ever made a serious attempt to use it to remove a president.


But the 25th Amendment became a subject of intensified speculation in Washington after author Michael Wolff reported in his new book that White House aides had expressed concerns about Trump’s mental health. POLITICO also reported that more than a dozen lawmakers — all Democrats but one — spoke on Capitol Hill last month with a Yale psychiatrist who has delivered grave warnings that the president was unraveling.

Lawyers and scholars of the amendment say the bar for invoking it is meant to be high. While impeachment requires only a majority of the House to set in motion, followed by a two-thirds Senate vote to convict, the 25th Amendment says two-thirds of both houses must agree to remove a president against his or her will. Any involuntary attempt to oust the president through the 25th Amendment also needs the vice president’s assent.

“We’re talking about a president who is not just off his rocker, but unable — totally unable — to make or communicate rational decisions,” said Adam Gustafson, author of a 2008 Yale Law and Policy Review article delving into the issue.

Bayh once said only “a total disability” to carry out presidential duties would qualify, Gustafson noted.

“The people who wrote it were confronting the alternative of a severely brain-damaged, gunshot president,” said University of Virginia law professor Paul Stephan, who advised a study of the 25th Amendment by the university’s Miller Center in the 1980s.

While Kennedy’s death spurred Congress into action, people involved in changing the Constitution in the 1960s were well aware of — and concerned about — other such circumstances that arose in U.S. history.

In 1919, President Woodrow Wilson suffered a stroke that left him seriously impaired. Yet he remained in office for more than a year, with his wife and a top aide taking over many of his duties and taking steps to keep the extent of his illness a secret.

Over a period of a few years, President Dwight Eisenhower had a heart attack, a gastrointestinal surgery and a stroke.
Eisenhower and Vice President Richard Nixon drafted an agreement to govern transition of power in such situations, but the validity of such arrangements was always questionable.


Berman, the former Bayh aide, said Eisenhower didn’t like the improvised nature of the arrangement and became a strong proponent of the 25th Amendment.

“We had a lot of input from President Eisenhower,” Berman said. “He thought there needed to be something—there needed to be a process, and the informality of the way he and Nixon had worked it out was not the answer.”

One of the key factors that convinced Eisenhower and others that the 25th Amendment was needed was the Cold War. The nuclear showdown with the Soviets that emerged from World War II meant that a president whose focus waned as the day wore on or who grew paranoid posed a more urgent threat to the nation than those who governed in an earlier era.

“This amendment was written during the nuclear age,” Stephan said. “This is the era of “7 Days in May,’ ‘Dr. Strangelove,’ and all that.”

Before the current round of speculation about Trump, the only known move in the direction of the 25th Amendment came in 1987, amid questions about President Ronald Reagan’s mental acuity.

Reagan underwent prostate surgery, following colon cancer surgery earlier in his presidency. Some aides said he was withdrawn and unengaged, at least at times, although it was unclear how much was health-related and how much might be a kind of malaise brought on by the unfolding Iran-Contra scandal.

Reagan’s deputy chief of staff Michael Deaver, who left the White House in 1985, wrote in a 1988 book that aides eventually came to believe that the president was “at the brink of being physically and mentally incapable of carrying out his responsibilities.”

Two prominent journalists, Jane Mayer and Doyle McManus, later revealed that an aide to incoming chief of staff Howard Baker, James Cannon, prepared a memo in March 1987 that opened with a discussion of whether the 25th Amendment should be invoked.

“Consider the possibility that section four of the 25th Amendment might be applied,” Cannon wrote, adding that the White House had fallen into “chaos” due to staff dysfunction.

A White House aide who was involved in that transition, Tom Griscom, acknowledged to POLITICO that the memo was written but downplayed its significance.

“It was more of: Have you looked at and exhausted everything that is out there?” Griscom told POLITICO. “There were clearly questions raised. When the president comes back, is he physically able to still execute the office?”

The new aides did keep a close eye on Reagan at a Cabinet meeting, Griscom said, but they found the doubts to be unfounded.

“We sat there in the Cabinet Room that Monday morning and lunchtime, and we watched a president of the United States, and we all realized that he was a person who was still very much equipped to do the job,” Griscom said.


After Reagan left office and was publicly diagnosed with Alzheimer’s Disease in 1994, some associates — including Reagan’s son Ron — said the illness may have begun to take root while the president was still in the White House.

However, Reagan White House lawyer Peter Wallison said there were no grounds to apply the 25th Amendment while the president was in office.

“There was nothing wrong with Reagan’s ability to reason or function,” Wallison said.

In the Trump era, some lawmakers have discussed updating the amendment. Rep. Jamie Raskin (D-Md.) has proposed a bill that would create a panel of doctors and others who could invoke the 25th Amendment.

Berman, 79, said he thinks some improvements could be made to the current system, but he doubts that could happen in the current climate. The lifelong Democrat said he has concluded that the only viable means to oust Trump is through impeachment.

“Nothing would thrill me more than to remove Donald Trump from office. But the more I’ve thought about it, the only way for that to happen is through impeachment," Berman said.

Wallison, the former White House lawyer who is now with the American Enterprise Institute, said seizing on Trump’s erratic tweets or his dismissiveness towards staff members would be ill-advised reasons to invoke the 25th Amendment.

“The fact he acts strangely is not sufficient to invoke the 25th Amendment,” he said.


 

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