The Failure of the 25th Amendment - Part IV

or Proof of Inability in 96 hours

Aug 17, 2022

The history of the 25th Amendment was built upon the slow deaths of Presidents James Garfield and William McKinley. Garfield lingered for months and McKinley for days after their assassins shot them.

To be sure, Woodrow Wilson’s stroke, Eisenhower’s heart attack, and various other presidential illnesses (mostly 19th century ones) were used as examples of the need for a constitutional process to ensure the U.S. has a president able to do his job. Little conversation was had about Presidents who were too mentally infirmed to do the job.

The 19th Century infirmity there was usually alcoholism and depression.

Franklin Pierce, James Buchanan, Ulysses Grant, and Andrew Johnson were epic elbow benders.

Zachary Taylor was Exhibit A for depression — Old “Rough and Ready” never got over the death of his daughter, Sarah “Knoxie” Taylor, in 1835 (shortly after her marriage to Jefferson Davis1). It’s effect on his performance as President is a non-issue, however; he died unexpectedly 16 months into his term.

Outside of Taylor, the United States has had at least 7 presidents with major depression disorders and another 6 who suffered from some level of mood disorder2. Most of the men who suffered from depression were among the best Presidents the United States has had.

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So what, in modern times, ought to be a non-physiological basis for removal?

Post 25th Amendment passage, Richard Nixon was in such an alcoholic funk that Secretary of State Henry Kissinger left an order that all military orders by Nixon needed his approval. Not really constitutional, but his Chief of Staff, Al Haig, who was the de facto president for much of 1974, apparently signed off of this workaround3.

After Nixon but before Trump, not a lot of mental health concerns even under some serious pressure. Give credit to Clinton’s compartmentalization, Bush’s ESTJ personality, and being known as “no drama Obama” for what they were - presidents who could handle pressure well.

Donald Trump, on the other hand, was, fairly regularly, reported to have had some epic fits of rage and more than once was said to be “fuming”4. A lot.5 Pretty much since the beginning of his presidency.6

Fuming means “feeling, showing, or expressing great anger.” Synonyms include raging, seething, boiling, steaming as well as ballistic, enraged, rabid, roilful, and infuriated. Not exactly steady at the helm bona fides, but if a president vents and is done with it (think Lyndon Johnson7), not really problematic. Unfortunately, Trump's twitter account8 and his aides' testimony at the January 6th Committee hearings tell a different tale9.

Any number of mental health observations about Trump vis-a-vis Section 4 would likely have worked with a majority of Americans throughout Trump’s presidency. His meta approval/disapproval polling are a testament to this.

But as with Trump’s First Impeachment and the January 6th Insurrection (which led to his Second Impeachment), it’s not what a majority of Americans or even two-thirds of the Senate believes, it’s only what Republicans thought about Trumps’ deeds and behavior. At Trump’s First Impeachment Trial and his Second as well — the only judgement that concerned Americans, especially Democrats and the political Left, was how Republican Senator-Jurors would vote on ready evidence of clear “high crimes and misdemeanors.”

That judgement was surprisingly poor.

After Trump’s First Impeachment, Senators Lisa Murkowski (R-AK) and Susan Collins (R-ME) explained their non-guilty votes with “It’s my hope that we’ve finally found bottom here.10” and “I believe that the president has learned from this case.11” Collins also threw in the notion that Trump “will be much more cautious in the future.”

The only positive in the above was that Murkowski and Collins looked like sure guilty votes at Trump’s Second Impeachment Trial.

If criminal conduct or a seditious conspiracy are not enough to at least get a vote by the Vice-President and the cabinet then what is the point of Section 4?

A reader commented on another social media site on Part II of this series that even if a majority of the cabinet voted for removal, Trump would issue a transmittal attesting to his fitness for office and return to power.

Not so fast, however. The key to Section 4, particularly in a case like Trump’s where most people thought he was unfit for office — even Republicans after January 6th, is the second vote.

Say Pence and the cabinet vote and find Trump unable to perform his duties on late in the evening on January 7th and a transmittal to Congress early on January 8th. Once the transmittal is received, Pence is Acting President and, more likely than not, the President Pro-Tempore of the Senate and the Speakers would receive the transmittal immediately — even it were 3 a.m.

Even if Trump issued a transmittal at 3:10 a.m. saying he is perfectly able to perform his duties as President, he could not resume those duties or have any presidential authority for 4 days — 96 hours.

If the Vice-President and the cabinet reconvened in those 4 days and disagreed with Trump's personal assessment of his mental health, Congress would meet 21 days later, well after the end of Trump’s term, to debate and vote on the issue12.

Does anyone think Donald Trump in that 96 hours wouldn’t say and do something that would keep cabinet members from letting Trump resume power?

That is a question on which realists, idealists, and pragmatists would agree.

US Politics Reconsidered

The Failure of the 25th Amendment - Part IV

or Proof of Inability in 96 hours

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