The Failure of the 25th Amendment - Part II

or how Trump's personality created a constitutional crisis

Suppose President Bill Clinton and Vice President Al Gore had decided to pursue the kind of unconstitutional actions taken by President Donald Trump following the 2000 Election. The political Right would be echoing much of the arguments that Democrats are making now.

Actually, Trumpists would have preferred a situation with evidence of election malfeasance (which the political Left had in 2000) as opposed to the nonsense of the Big Lie.

Unfortunately, Trump’s attempted coup rested upon the Big Lie. The Big Lie, itself, rested upon Trump’s inability to accept losing or criticism and his inflated sense of entitlement — critical parts of a diagnosis of Narcissistic Personality Disorder. It certainly had no actual facts to buttress it. (Spare me, trolls, Trump and his allies lost 65 court cases all of which failed for lack of any evidence.) Trump’s entire life has been about people feeding his narcissism and managing his inflated ego.

In the end, the Big Lie was nothing more than an amelioration of Trump’s mental state. Apparently, telling Donald Trump he was cheated out of a second term was considered a better alternative to “You lost, deal with it.”

While an abundance of psychiatrists¹ and psychologists² had chimed in during the Trump presidency about his DSM-5³ diagnosis, the armchair opinions were mixed. In addition, due to the Goldwater Rule — the diagnoses were not considered particularly ethical or especially accurate⁴.

That said, it doesn’t not actually matter what a bunch of psychiatrists, pyschologists, or even what the President’s physician says after administering the Monterey Congnitive Assessment⁵. As Barney Greenwald pointed out in “The Caine Mutiny” (1954), the only thing that matters is what the court martial board thinks⁶.

In matters regarding Section 4 of the 25th Amendment (which has still been untested), it doesn’t matter what the Speaker (Pelosi), the expected to be Senate Majority Leader (Schumer), constitutional scholars, big business, or the public thought of the January 6th attack (actually an attempt to overthrow the government). The only person whose opinion mattered was that of one Michael Richard Pence, Vice President of the United States.

With less than two weeks to go until Trump’s term ended, a harrowing experience on January 6th, and likely suspicions about the Secret Service; Pence decided against assembling the Cabinet to consider removing Trump’s presidential authority under Section 4.

Pity.

In his entire political life, Vice President Mike Pence had never had the amount of political power that calling the Cabinet into a session pursuant to Section 4 would endow. Presidential inability would have enabled Pence et al. to consider all of Trump’s statements and acts or just his conduct post-election or just what occurred on January 6th. As a bonus, it’s the Vice President’s show - he or she can more or less dictate how the meeting will proceed and what the cabinet should consider before voting.

And best of all, Trump could not interfere in the process (e.g. fire his Cabinet or selected members).

Had a majority of the cabinet decided that Trump was unable to carry out his duties, Pence would have become the Acting President of the United States. For at least 4 days, but potentially until noon on January 20th.

The process is an initial meeting of the Vice President and the Cabinet, a transmittal is sent to Congress, a response from the President is given, the Vice President and Cabinet reconvene and revote 4 days later, and send a second trasmittal to Congress (if necessary). If the second transmittal is sent, Congress convenes in 21 days to resolve whether or not the President is unable to carry out his duties.

At best, the process could be over in 4 days (really 5 depending on when the transmittal is sent and received), but could take as long as 26 days. And, from the moment of the first meeting of the Vice President and the Cabinet until the second transmittal, the President has no authority.

If there is not a first transmittal, then it’s a political crisis but not a constitutional problem.

If there is a first transmittal and the President asserts he is able to carry out his duties, it’s a constitutional crisis and a political problem. Mike Pence calculated this bit of realism and decided against pursuing the Section 4 process.

Pity.

1. https://www.statnews.com/2017/09/06/donald-trump-mental-illness-diagnosis/

2. https://www.independent.co.uk/news/world/americas/us-politics/donald-trump-narcissistic-personality-disorder-mary-trump-john-zinner-bandy-x-lee-a9665856.html

3. Diagnosis and Statistical Manual of Menatl Disorders, 5th Edition

4. https://www.lawfareblog.com/psychiatrists-goldwater-rule-trump-era

5. https://www.vox.com/science-and-health/2018/1/16/16899150/trump-montreal-cognitive-assement-ronny-jackson

6. The actual quote "The prosecution believes the report of the psychiatrist closes the case. But it is up to you naval officers to judge the captain's performance."