Vail Daily column: Understanding the 25th Amendment
February 28, 2017
I'm staying out of it. That is, whether Donald Trump is crazy like a fox. Or if he's just plain crazy. But after the White House's recent exclusion of certain "unfriendly" media from a press gaggle, I may be leaning evermore persistently in the direction of the latter. What the heck does he think he's doing with our democracy?!
Whether the president is crazy is not just invective or hyperbole. The Constitution provides for just such a possibility. Adopted in 1967, the world had by then seen enough Neros, Ivan the Terribles, Alexander the VIs, Robespierres, Hitlers and Mussolinis to hedge against a wing nut that had come a little loose.
While the 25th Amendment does not speak directly to a president who may have lost his marbles, 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 tragedy 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 you may not know, however, is that if the vice president dies, resigns (think Spiro Agnew) or is removed from office, the president can choose a new VP, subject to confirmation by Congress (think Vail's own Gerry 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, then for whatever reason (which many will argue the impaired Woodrow Wilson should have done), the VP takes over.
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Here, however, is the kicker; if the VP and a majority of the cabinet agree that the president is no longer capable of carrying out the duties of his office, the VP can temporarily take over as acting president. If the president disputes his removal from office, then the Congress must decide whether the president should regain the powers of his office or whether the VP should remain in charge. This last 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, an unhinged Trump could breathe real life into the Amendment.
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, then 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 nuts, so and so 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.
Following the president's rambling Feb. 16 press conference, there were whispers among the press pool of the president being "insane." The Washington Post's Dana Millbank went further, holding that the president might be "barking mad." In the two week since, things have not improved.
Although, ordinarily, conversations of this sort leads to questions about possible impeachment — and that is certainly is not off the table — neither may be the 25th.
The distinction between the two is this: impeachment contemplates wrong-doing. Article II, Section 4 of the Constitution provides that "The president … shall be removed from office on impeachment form and conviction of, treason, bribery, or other high crimes and misdemeanors."
In contrast, the 25thAmendment requires no wrong-doing. It holds, simply, that if the president is unable to perform his duties (presumably, owing to physical, mental or emotional limitations), then a mechanism for his removal from office is available.
Is this likely?
Well, it has never happened. Even when Woodrow Wilson was severely incapacitated by a stroke and his wife, Edith, essentially wielded the power of the presidency, the 25th was not invoked. But these are different times.
And there has never been a Trump before.
Stay tuned. Anything is possible.
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, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, firstname.lastname@example.org or email@example.com.