October 15, 2020

By Bill Blum

Should the 25th Amendment be invoked to remove Donald Trump from office? In a press conference on October 9, House Speaker Nancy Pelosi and Congressman Jamie Raskin unveiled legislation based on the amendment that would establish a bipartisan commission that could answer the question and determine if Trump has the capacity to discharge the powers and duties of his office.

The commission would have 16 members, selected in equal numbers by Democratic and Republican congressional leaders, and would include four physicians and four psychiatrists. The remaining members would consist of eight retired statespersons (either former presidents, vice presidents, Cabinet secretaries, or surgeons general). The appointed members would then select a 17th panelist to act as chair of the commission. Once the commission is formed, Congress could pass a concurrent resolution, directing it to conduct an examination of the president.

Formally enrolled as H.R. 8548, the measure is modeled on a nearly identical bill Raskin introduced in 2017. The new legislation has 38 co-sponsors, all liberal Democrats, and has been referred to the House Judiciary Committee for further review.

On the surface, H.R. 8548 makes perfect sense, offering a badly needed mechanism to rescue the nation from a chief executive who is patently unfit to sit behind the Resolute Desk for a single day, much less another four years. Under the terms of the bill, as Pelosi and Raskin stressed, the commission would become a permanent body, and could be summoned into action to deal with future presidents beyond Trump in the event they, too, become incapacitated.

Unfortunately, the legislation doesn’t have a prayer of being enacted. It is far too late in the legislative session for any action to be taken.

Even assuming the bill could be rushed to passage in the House, it would inevitably die in the sycophantic GOP-controlled Senate. And even assuming it somehow moved out of the upper chamber at unheard-of warp speed, it would never be signed into law by the very president whose competency has been called into question.

Still, as an expression of constitutional principle and good-government impulses, H.R. 8548 deserves serious debate and consideration.

Long before he was infected with COVID-19, Trump was a sick man unprepared and unable to serve the American people in any position of leadership. Physically, according to some notable independent physicians who have reviewed information released by Trump’s doctors, the 74-year-old president suffers from worrisome comorbidities, including heart disease and obesity. Mentally, in the view of some of the country’s top mental health professionals who have studied the president’s behavior and rhetoric, Trump suffers from malignant narcissism, a toxic mix of narcissistic personality disorder, sociopathy, paranoia and sadism.

Post-COVID, Trump’s condition has worsened. Since his release from the Walter Reed National Military Medical Center, where he spent three nights receiving a potent therapeutic cocktail of remdesivir (an antiviral drug), an experimental monoclonal antibody treatment from Regeneron, and dexamethasone (a powerful corticosteroid), the leader of the free world has been in a full febrile meltdown, engaging in unhinged rants and ravings that for the good of the nation cannot be ignored or dismissed as political theater or spirited electioneering.

Among other signs of deterioration, Trump has bragged that he was quickly cured of the virus, called his infection “a blessing from God,” and declared that he feels better than he has in 20 years. In addition, without the slightest semblance of logic or coherence, he has flip-flopped erratically on the need for another COVID stimulus package, threatened Iran with annihilation, renewed his criticism of Michigan Governor Gretchen Whitmer in the wake of a foiled right-wing terrorist plot to kidnap her, and lambasted Attorney General Bill Barr for failing to indict Joe Biden and Barack Obama for allegedly spying on his 2016 presidential campaign.

Never known as a beacon of stability, Trump seemingly has entered what Pelosi has dubbed an “altered state.” Some observers are asking if the drugs he has taken are in some way responsible.

Although remdesivir and Regeneron’s antibody treatment are not known to cause serious side effects, the same cannot be said of dexamethasone. As Newsweek deputy science editor Kashmira Gander explained in a recent column, the steroid has been associated with adverse reactions such as aggression, agitation, anxiety, mood swings, trouble thinking, and in rare instances, grandiose delusions, psychosis, delirium and hallucinations.

Whether what we’re witnessing from Trump is truly a form of steroid rage or a combination of the dexamethasone and his baseline proclivities—not to mention his rational fear of criminal prosecution should he lose the election—the president has never been as dangerous as he is now.

But there is no quick legal fix, either under the 25th Amendment or by means of legislation like H.R. 8548, for removing Trump, or any other unfit president who refuses to step down. If anything, removing an incompetent president by means of the 25th Amendment is more difficult than removing a corrupt president by means of impeachment.

Ratified in 1967, the 25th Amendment was crafted in the aftermath of the assassination of John F. Kennedy to clear up ambiguities and fill gaps in the Constitution’s original provisions on presidential succession.

The Constitution, as it emerged from the founding convention of 1787, addressed the issue of succession in Article II, Section 1, which stipulates:

“In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected.”

The rule of vice-presidential succession was restated by the 12th Amendment, which dealt primarily with the Electoral College and was ratified in 1804. The 20th Amendment, ratified in 1933, offered more clarification, stating that if the president-elect dies before being sworn into office, the vice president would be sworn in instead.

However, not until 1947, with the passage of the Presidential Succession Act, did the current line of succession take shape, extending from the vice president through the speaker of the House, the president pro tempore of the Senate, the secretary of state, and then to other Cabinet officials.

Still, questions about succession remained—among them, how to define a president’s inability to serve, particularly when the inability is mental or emotional in nature. Who gets to make the determination that such an inability exists? And can the president resist efforts to have himself declared unable to serve?

Section 4 of the 25th Amendment addresses these issues. The section consists of two densely worded paragraphs, the first of which provides:

“Whenever the Vice President and a majority of either the principal officers of the executive departments [the Cabinet] 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.” [Emphasis added]

The second and final paragraph of Section 4 instructs, in so many words, that the president can attempt to override a declaration of incapacity by notifying the Senate and House leadership in a counter-declaration that no such inability exists. Thereafter, the vice president, with the support of a majority of the Cabinet, or the “other body” referred to in the first paragraph, can contest the president’s override. To resolve the conflict and place the vice president in charge, a two-thirds vote of both houses of Congress is required to confirm that the president is, in fact, “unable to discharge the powers and duties of his office.”

The procedures outlined in Section 4 have never been invoked, and it is implausible that they would be used against Trump, even if he drags the nation to the brink of absolute ruin in the time remaining before the election or in the lame-duck session afterward. The amendment simply contains too many moving parts and depends on too many external contingencies to make it a viable option.

First and foremost, only the most cockeyed optimists could believe that Vice President Mike Pence, a corrupt and inveterate liar in his own right, would sign a declaration of incapacity against Trump.

Second, as noted above, it is exceedingly doubtful that the current Congress would seize the initiative and pass legislation creating the “other body” in the form of the commission envisioned by H.R. 8548. And even if such a commission were formed, a declaration of incapacity in the end would still have to be endorsed by the vice president to have any force and effect.

Third, and finally, it would take a two-thirds vote of both the House and Senate to override the president’s counter-declaration of fitness.

Check and checkmate.

The only way to rid the American body politic of the pestilence of Donald Trump is to vote against him in overwhelming numbers on November 3, and then, if necessary, to drag him kicking and screaming, tweeting and whimpering, from the White House.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

This article was produced by the Independent Media Institute.

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