Vail Law: Could Trump be subject to removal for being unfit? Stay tuned (column)
September 11, 2018
"Anonymous," the mysterious President Donald Trump administration insider, recently said, "… many of the senior officials in (the administration) are working diligently from within to frustrate parts of (Trump's) agenda and his worst inclinations."
Penning an op-ed for The New York Times, Anonymous went on to claim, "I should know. I am one of them."
In his/her extraordinary piece, Anonymous went on, "… we believe … (Trump) continues to act in a manner that is detrimental to the health of our republic. That is why many Trump appointees have vowed to do what we can to preserve our democratic institutions while thwarting Trump's more misguided impulses until he is out of office.
"The root of the problem is the president's amorality. Anyone who works with him knows his is not moored to any discernible first principles that guide his decision making … generally (Trump's impulses) are anti-democratic."
He or she went on to say "… the president's leadership style … is impetuous, adversarial, petty and ineffective."
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Then there's this
This is only part of it and follows closely on the heels of double Pulitzer Prize-winning author Bob Woodward's new book, "Fear: Trump in the White House," which is only the latest of a string of books declaiming Trump's dysfunction.
Whether you believe the portrait of Trump and his administration to be true or not, it brings us to our topic: What exactly is the 25th Amendment, and what is it designed to do?
Whether the president is crazy or otherwise unfit for office is not just invective or hyperbole. The Constitution provides for just such a possibility. Adopted in 1967, the 25th Amendment is a hedge against a wing nut that had come a little loose. Like much of the Constitution, the 25th Amendment is sufficiently broad — and sufficiently vague — to consider all manner of "what ifs."
Owing to the Kennedy assassination and the Nixon disgrace (both occurring in many of our lifetimes), we know that if the president dies, resigns or is removed from office, the vice president takes over. What is lesser known, however, is that if the vice president dies, resigns (think Spiro Agnew) or is removed from office, the president can pick a shiny new VP, subject only to confirmation by Congress (think Vail's own Jerry Ford, who, history will record, is the only person to serve as both vice president and president who was elected to neither office).
What's more, if the president submits written notice that he is no longer able to carry out the duties of his office, for whatever reason (which many will argue the impaired Woodrow Wilson should have done), the VP takes over.
Here, however, is the kicker and the essence of the 25th Amendment: If the VP and a majority of the cabinet agree that the president is no longer fit to carry out the duties of his office, the VP can temporarily take over as the acting president. If the president disputes his removal from office, the Congress must decide whether the president should regain the powers of his office or whether the VP should remain in charge. This has never happened.
But with the Nixon-Agnew-Ford succession, the 25th Amendment has at least once expressed its practical application. And there are those who argue that in the perhaps not-too-distant future, Trump could breathe real life into the amendment.
What it says
What Section 4 of the Amendment specifically provides is this:
Whenever the vice president and a majority of either the principal officers of the executive departments 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.
Thereafter, when the president transmits to the president pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the vice president and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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. Thereupon Congress shall decide the issue, assembling within 48 hours for that purpose if not in session.
If the Congress, within 21 days after receipt of the latter written declaration, or, if Congress is not in session, within 21 days after Congress is required to assemble, determines by two-thirds vote of both Houses that the president is unable to discharge the powers and duties of his office, the vice president shall continue to discharge the same as acting president; otherwise, the president shall resume the powers and duties of his office.
You will note that the Amendment employs the term "unable to discharge the powers and duties of his office." It does not spell out either physical, mental or emotional disability. It does not say, "if the president is bonkers, such and such may happen." But it doesn't not say that, either. And if Trump's mental state is such that he poses a real threat to our free institutions, he is not above the law. The 25th Amendment provides that safety valve.
To be sure, invoking the 25th Amendment would be to tread uncharted ground. But whether, it would, in Anonymous' words, "precipitate a constitutional crisis" remains to be seen. Perhaps, considered otherwise, it would reaffirm the strength and wisdom of our constitutional democracy. For certain, however, it would be unprecedented in our history.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.