As President Trump’s behavior gets weirder and more dangerous by the day, his lawful removal from office becomes increasingly desirable, if not imperative.
Some Democrats and a few others have been pining to initiate an impeachment effort. But they are barking up the wrong tree.
Those who have experienced the presidential impeachment proceedings of former President Bill Clinton, resulting in his 1999 acquittal; or against the late President Richard Nixon, leading to his 1974 resignation; or those who recall from history President Andrew Johnson’s one-vote impeachment-trial victory, know full well that trying to oust a president for “high Crimes and Misdemeanors,” the term used in Article II, Section 4 of the Constitution, is a grueling, time-consuming, divisive ordeal awash with partisan considerations.
But there is a different constitutionally sanctioned (although still untested) means of removing a president. It could be more efficient and, above all, effective. And to make it more enticing, it has a Minnesota lineage of sorts.
The process that could produce the much-needed termination of the Trump presidency is removal due to disability under the 25th Amendment.
The measure was adopted in 1967 in the wake of the 1963 assassination of President John F. Kennedy, which elevated then-Vice President Lyndon Johnson to the White House, leaving a vacancy in Johnson’s former position. That in turn had left two elderly members of Congress next in line for succession, a deficiency that Congress remedied by passage of the 25th Amendment that established a method for filling a vacancy in the vice presidency — and also empowered the vice president to serve as “acting president” during a president’s disability.
Minnesota was one of the last two states (along with Nevada) that gave the final needed ratifications to make the amendment part of the Constitution. As it happens, Minnesota’s Hubert Humphrey was vice president (having been elected in 1964) when it went into effect 50 years ago.
The process for filling a veep vacancy has been invoked twice — both surrounding the Nixon administration. First, Gerald Ford was selected to replace Spiro Agnew, who resigned in disgrace and under criminal charges; later, Nelson Rockefeller was chosen as Ford’s vice president when Ford replaced Nixon as president.
But it’s a different portion of the amendment that could be the key to dismantling the Trump presidency. It’s the section that allows replacement of a president who is considered to be “unable” to carry out the duties of the office.
The process has been utilized three times, all for short-term periods of incapacity while presidents were undergoing colonoscopies — first with Ronald Reagan and later, twice, for George W. Bush. Surprisingly, it was not invoked when President Reagan was in surgery and post-op recovery after he was shot by a would-be assassin in 1981.
The key section of the 25th Amendment authorizes replacement of the president if the vice president and a majority of the heads of executive branch departments, not just Cabinet posts, furnish statements to Congress deeming the current White House occupant to be “unable to discharge the powers and duties of his [sic] office.” (The measure did not contemplate, my gosh, a woman president, when drafted five decades ago.)
The system can seem Machiavellian. The amendment goes on to allow the temporarily sidelined president to reclaim the office if he (or she) transmits a statement to both houses of Congress of renewed fitness for duty.
That’s where the process might turn into something like a Netflix series. If they don’t agree with the president’s self-assessment of capacity to resume the Oval Office, the vice president, serving as acting president, joined by a majority of executive department principals, have up to four days to challenge the president’s intention to return to the job.
This would unleash a frenzy. Congress has three weeks to decide who gets the keys to the White House. To keep the elected president locked out, two-thirds of the members of Congress must vote in favor of the vice president, although the amendment is ambiguous about whether two-thirds is required in each body separately, or among all members of Congress collectively. The amendment refers to a two-thirds vote in “both Houses,” which could be interpreted either way.
So if the two-thirds threshold were met in one chamber, and in Congress as a whole, but not in the other house, the third branch of government would become involved — the Supreme Court would probably be called upon to adjudicate the outcome. This would allow the justices to choose the president for the first time since they gave the position to George W. Bush in 2000.
Forget about Netflix; this starts looking like a pro wrestling battle royale.
Going this route would require some degree of backbone from Vice President Mike Pence, who would have to initiate the constitutionally endorsed coup. He also would need the backing of a cabal of Cabinet officials and other executive department chiefs. It wouldn’t hurt to have the backing of a sizable segment of Congress, especially the Republicans who control both houses. To pursue this path, it also would help to have substantial public support, maybe even from some segments of Trump’s ever-loyal but declining base.
It’s difficult to imagine all of these threads being woven together. But if they don’t fall into place, the nation faces the prospect of descending into ever-spiraling crises caused by what many are now viewing as a maniacal occupant of the White House who is mentally unhinged and could, if he were a kindergartner — and he acts like one at times — use a timeout.
The constitutional process was created, no doubt, in contemplation of some type of physical disability. But its language is not restricted. It could apply to any condition or circumstance rendering a president “unable” to perform the duties of the position.
A mental health crisis or severe emotional affliction could undoubtedly justify the replacement process, on a temporary basis or a permanent one, depending upon developments.
In the campaign, and ever since, President Trump has often promised that things soon would be different. This may be the occasion to try, for the first time, a temporary hiatus under the 25th Amendment that would allow him some time off. He could retreat to his Florida compound, where he spends an inordinate amount of time anyway, and get away from that swamp in the nation’s capital, enjoy some fresh air, golf a bit and eat plenty of ice cream.
The respite might allow him to regain any equilibrium he once may have had and return anew to D.C., refreshed, revitalized and ready to resume the presidency. Or, it could lead him to declare that others should take the job and do what he has been doing to the nation: Shove it!
Either way, it’s time to have someone fit for duty in the Oval Office. Invoking the 25th Amendment might achieve that laudable objective.
Plus, it might make for great reality TV.
Marshall H. Tanick is a Twin Cities constitutional law attorney.