Updated to reflect Elizabeth Warren email, see below
A timely piece has been published by NPR detailing the specifics of the 25th Amendment.
There have already been exchanges here at BMG regarding the 25th Amendment, on at least two diaries (Who Elected You? and No Profile In Courage). In the first of those, our usually astute Christopher makes an assertion about the operation of the 25th Amendment that requires at least clarification (emphasis mine):
25th amendment also requires the agreement of Pence. There’s speculation based on vocabulary that this op-ed is the work of the VP’s speechwriter, but that doesn’t guarantee he’s speaking for Pence in this instance.
The cited NPR piece says this (emphasis original):
Are there any other checks and balances in this process?
Yes. The law says that an incapacitated president can resume the duties of the 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 [legislative leaders] their written declaration that the president is unable to discharge the powers and duties of his office.”
That’s an important detail: If a 25th Amendment process were triggered, Congress could appoint a “body,” or a board of medical experts, or other people, to give an opinion about the fitness of the president.
The agreement of Mr. Pence is not required if the GOP members of Congress do their moral and constitutional duty and appoint an independent body or board of medical experts to evaluate the competence of Mr. Trump.
The rest of the NPR piece is well worth the read.
Update to reflect Elizabeth Warren email
It seems that our senior senator agrees with us. She sent the following email late this afternoon:
Elizabeth Warren for Senate
Yesterday, a senior official in the Trump Administration wrote an anonymous New York Times op-ed that alleges that “the president continues to act in a manner that is detrimental to the health of our republic” and that the presidential cabinet does not believe Donald Trump is mentally fit for office:Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president. But no one wanted to precipitate a constitutional crisis.
Let’s be clear: We already have a constitutional crisis if the cabinet believes the President of the United States can’t do his job and then refuses to follow the rules that have been laid down in the United States Constitution. They can’t have it both ways.
Sign on now to tell the Trump Administration cabinet: Invoke the 25th Amendment if you believe Trump is unfit for office.
https://my.elizabethwarren.com/page/s/invoke-the-25th?source=20180906em1-full
If the presidential cabinet believes that President Trump is “unable to discharge the powers and duties of his office” as the 25th Amendment states, then every minute they make excuses is a minute that our country is at risk.
If senior officials believe the president is unfit, they should stop hiding behind anonymous op-eds and leaking information to Bob Woodward boasting that they’re trying to save our country, and instead do what the Constitution demands they do: invoke the 25th Amendment and remove this president from office.
This isn’t about politics – this is about the safety of our children, the national security of our nation, and the future of our democracy.
Tell the cabinet: if Trump is unfit, invoke the 25th.
https://my.elizabethwarren.com/page/s/invoke-the-25th?source=20180906em1-full
Elizabeth
I am not an expert here, but here is the relevant text:
It seems to me that the Vice President is necessary at both stages. I parse the phrase to be (1) the Vice President; and (2) a majority of either (a) the principal executive officers or (b) a body that Congress designates.
I agree with your reading and appreciate this clarification.
I’m picturing a committee of medical and psychiatric experts who unanimously agree that Mr. Trump is seriously impaired (I’m picturing Rudy Giuliani ranting about why Mr. Trump refuses to perform the diagnostic procedures such as MRIs that the august committee demands), and Mr. Pence sitting on the fence about whether or not he will accept and then keep the role of “Acting President”.
I think Mr. Pence will declare that God is calling him to be President, and will “reluctantly” accept the decision of the newly-formed committee.
I’m then picturing a fusillade of federal and state indictments of Mr. Trump and his family for a long list of felonies — obstruction of justice, tax fraud, bank fraud, extortion, racketeering, perjury, etc — going back 20 years. I’m picturing Congress impeaching Mr. Trump based on the entirety of all this evidence (including the much-anticipated report of Mr. Mueller).
I’m then wondering what happens when this evidence shows that Mr. Pence, Mr. Sessions, and who knows who else were consciously aware of all this and knowingly participated in the criminal conspiracy to block these investigations.
I think there’s a very good chance that Mr. Trump will be forced from office, sooner rather than later. In my view, the burning question will be …
What happens to the rest of the GOP co-conspirators, both indicted and un-indicted?
We still seem to be forgetting the 2/3 of both chambers required to sustain a declaration of disability over the objections of the President.
That op-ed if you read it is so stupid, I’m starting to wonder if it’s a plant. Of course Elizabeth Warren waltzes right into the trap, what a simpleton. She’s a diversity hire for Harvard all right, she fills out the quota for dumb.
As Christopher points out, the ONLY thing we need to know about the 25th Amendment is it is harder to use then impeachment. With impeachment we need a majority of the house to impeach and 2/3 of the senate to convict. With the 25th Amendment you need 2/3 of the cabinet, 2/3 of the house and 2/3 of the Senate. Therefore this is silly talk and we shouldn’t be wasting time on this avenue.
I see. So when we have hard evidence (and I think Mr. Woodward’s upcoming book meets that standard) that at least some senior White House officials are imposing their own version of the process without benefit of any oversight whatsoever, we should ignore it?
We are seeing the collapse of the American experiment in Democracy. What avenue do YOU suggest we pursue?
Impeachment and removal is hands down my preference, but I’m not sure of the political likelihood of that. I’ve always been skeptical of how realistic 25 is since it would require action by those most loyal to him and just about as competent as he is.
VP + majority of cabinet suffices for 25 rather than 2/3.
I was just realizing that the numbers in the comment from pogo are incorrect.
So — pogo — are you ready to perhaps revisit your “silly talk” characterization?
@ Christopher: I think it’s VP + (majority of cabinet OR majority of other body).
I think it’s also worth noting that the 25th Amendment does not preclude impeachment.
Right, they are also technically remedies for different things. It’s just that Trump seems to have met the criteria for both. For example, if 25 had been an option during the Wilson presidency it could have been invoked due to incapacity resulting from a stroke, but he was never accused of treason, bribery, or high crimes and misdemeanors. OTOH, Clinton was accused of crimes rising to the level of impeachable offenses (I strongly disagree, but that’s not the point for the purposes of this example.), but nobody suggested he was not capable of serving due to health reasons. Trump has both IMO committed impeachable offenses and shown some evidence that he is not mentally/psychologically stable. The other difference is that 25 is reversible, presumably would be reversed when the incapacity is removed, and so far in history has been in short order, whereas once impeached and removed the President cannot resume the office.
Indeed. My interest in using 25 is, apparently, similar to that of our senior senator. I agree with you that 25 exists to remedy actual incapacity (such as a nervous breakdown, stroke, or some out-of-control personality disorder). A growing body of evidence clearly implies that this is the case with Mr. Trump.
This is the first time in my lifetime that there is credible evidence that our President and government is being controlled by a hostile foreign power. This seems to fall within the “impeachment” criteria. I strongly suspect that the leverage held by Mr. Putin is a result of decades of deep involvement with organized crime — I continue to expect that to be a major outcome of the Mueller investigation (and others), and I think it remains to be seen whether that involvement rises to the level of “high crimes and misdemeanors”.
The combination of these two aspects is particularly troublesome to me. Every day Mr. Trump stays in office is another day where the entire world risks his doing some unthinkably wrong and irreversible act.
No I am right. Read Section 4 Unless you think Trump is going to roll over and say, “ya I’m incapacitated” he’ll change it and both Houses of Congress need two third votes to oust him. So I stand by my comment that it is a fools errand. If anything, impeachment is easier that the 25th Amendment.
Sigh. Indeed, this amendment seems to be a “mystery” in the sense that Peter Gomes once described it — “A mystery is something that is entered, rather than solved, and once entered opens to reveal other mysteries within it.”
I truly did not realize this aspect of it — I guess I didn’t read it fully enough.
So it appears that we have no practical mechanism to protect ourselves from the combination of a lunatic in the White House and the collection of GOP Collaborators who refuse to admit just how crazy he is.
@ Christopher: This feels more like the Titanic than the Reichstag. You’ll recall that the “unsinkable” Titanic floundered because its watertight bulkheads did not extend high enough in the hull to prevent water overflowing from one to the next like an icecube tray as its bow sank lower and lower.
Our much-vaunted checks and balances, like the bulkheads of the Titanic, were not designed to handle the simultaneous case of an unbalanced (and corrupt) President and a totally corrupt GOP.
This American ship is sinking, my friends.
So do we have enough lifeboats?:)
I only ask because I’ve always felt that it was so stupid to only have a few on the Titanic on the premise that they wouldn’t need them anyway. If the boat sinks, the WHOLE boat sinks, right?
Sorry, I do wish I were wrong.
I’m afraid we can only hope for this: Dems get the House and the Mueller report, while not having a smoking gun, will have tons and tons of evidence that the overwhelming sense is Trump’s “conflicted”. We need stuff like a long history of cash dealings with the Russian mob and oligarchs washing money; Don Jr and Roger Stone indicted (maybe Jared).
That MAY peel off 15 to 17 GOP Senators we need–for their own reputation in history. Mitt Romney would. Lindsey Graham I think will do the right thing. Collins; Mursouwski (sp); Sasse I think. Burr as chair of “Intelligence” should. After that, not sure but clearly the pressure will be great to do the right thing, (Hell trump’s #s will be in the teens).
But if all we have is what we have today, campaign finance fraud and stuff like that, it will be a Clinton redux.