Is President Trump “Unable to Discharge the Powers and Duties of his Office”?

Since the riots at the Capitol, there has been much talk of removing President Trump from office under Section 4 of the 25th Amendment. There is little chance of that happening, despite Democrats’ best efforts, and not just because Section 4 doesn’t actually remove the President from office. Even so, it warrants thinking about. Like everything in contemporary politics, talk of Section 4 is usually partisan and short sighted. When we discuss it, we must consider the long-term consequences of its use.

The 25th Amendment is not meant for punishing misdeeds with removal from office; that is the purpose of impeachment. Although the wording of Section 4 is ambiguous on this point, its history makes clear that it is not a remedy for incompetence. Rather, the 25th Amendment is intended to remove from power – if not, technically, from office – someone who is medically unable to perform the tasks required of the President. While the details could be debated, and I’m not qualified to take a position on them, it is certain that the level of incapacity contemplated was extremely high. To lower that standard is, in theory, to reduce Section 4 to a political weapon.

There is particular reason to be worried about setting a bad precedent. Initially, Section 4 requires fewer supporters than impeachment – at least one of whom would benefit from invoking the Amendment – and has fewer procedural checks on it. Because Section 4 has never been invoked before, using it to remove Trump would set the tone for all uses that would follow. To use it against Trump risks encouraging its use in future, not on grounds of total incapacity but based on policy disagreements or the ambitions of the Vice President and cabinet.

Does Trump really meet this high standard? Even if he does, would the benefits of invoking Section 4 justify the risks of doing so? These are questions we need to consider before we decide that something must be done, this is something, therefore this must be done.

That’s a difficult question. Even so, while it might be unconventional (or would have been four years ago), I think the answer is yes. Here’s why.

The mental impairment that would render the President “unable to discharge the powers and duties of his office” can surely be less severe than that required to impose a legal disability on a private citizen. Based solely on his speech before the Capitol riots, or on his phone call a few days earlier, one could say that Trump has not met that level of impairment. Putting the speech and call together, though, there are only two conclusions that can be drawn. One might conclude that Trump is deliberately undermining the Republic to keep hold of power; that is grounds for impeachment, so we’ll set that aside. Alternatively, one could infer that he is genuinely convinced that the outcome of the 2020 presidential election was fraudulent. Given the sheer number of investigations into claims of fraud, all of which have found insufficient evidence to support it, that belief can only be called delusional. Trump’s delusion has led him to take actions that have inflicted significant harm on the country.

This isn’t the first time that Trump’s beliefs have been totally divorced from reality. Last year, Trump repeatedly insisted that the presence of COVID-19 in the United States was falling, even while hospital admissions and deaths continued to increase. At best, this encouraged his supporters to take the pandemic less seriously than they should have; at worst, this was a genuine belief that influenced his administration’s policy.

Both cases, particularly his attitude towards the Pandemic, are close to the line. The President’s duties often consist of analysing facts and making decisions based on that analysis. Often, the President will form a different judgement from those whose knowledge would be considered more authoritative. It would be worrying if disagreeing with perceived experts could be taken as a sign of inability to perform those duties. Yet they are still on the wrong side of a line that is very, very broad. The President espoused, and appeared to act upon, objectively wrong beliefs about the greatest crisis facing the nation; that is exceptional. The President – intentionally or otherwise – encouraged American citizens to attack their own government, and potentially to commit widespread violence, based on a threat that does not exist; that verges on incredible. Put together, although these events may not establish mental illness, they can leave no doubt that the President is a fantasist. This makes him incapable of a job that requires him, first and foremost, to see the world as it rather than as he wants it to be.

I also think that the danger of setting a precedent is less than might be feared. Section 4 commits the decision to disempower the President first to either the Vice President and the principal officers of the United States or to a body to which Congress has delegated the task. The Vice President and principal officers were all selected by the President and will presumably have incentives to be loyal, whereas a body provided for by law could be designed to counter any personal or partisan ambitions. Whoever makes that first decision, the President can then over-ride it unless, within only three weeks, two-thirds of both Houses of Congress approve the President’s continued disempowerment. This is more difficult than Impeachment, which requires two-thirds of the Senate but only a majority of the House of Representatives. Those are significant safeguards against frivolous use of Section 4. Moreover, because the Constitution commits the decision to these political actors, any precedent would be advisory rather than binding. In other words, the circumstances under which Section 4 is considered appropriate is merely a norm, and we’ve seen over the last few years how easily those can be discarded. Finally, these facts are just so unusual – so downright bizarre – that I don’t see how they could be applied to any future President.

Still, any lawyer knows that any precedent – however fact specific – will be cited by someone who finds it useful. We all know that politicians will seize any possible excuse for their actions. So, given that risk, would it be worth disempowering President Trump for barely over a week? That is far beyond the scope of a short article, so I must leave that up to you. My answer is yes. Every day Trump wields the power of the Presidency gives him another chance to start World War 3.

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