The never before utilized Section 4 of the 25th Amendment to the U.S. Constitution (full text posted below) may provide the most efficient lawful means to facilitate a swift end to the madness brought on by the Presidency of Donald J. Trump.
The real issue is not whether Donald Trump --- an utterly dishonest raging authoritarian narcissist and "pathological liar" --- should be removed from office. Instead, the focus should be on which of two alternative constitutional means for removing this miscreant from office has the best chance of ultimately succeeding.
Impeachment is a cumbersome process that, assuming the GOP-controlled Congress would permit it, entails lengthy investigative hearings, and the introduction of Articles of Impeachment alleging High Crimes and Misdemeanors --- Articles that must be approved by a majority of the House. This would be followed by a trial in the Senate. Trump would then be removed from office only if two-thirds of the Senate votes to convict. Tall orders for both Republican-majority chambers, to say the least.
Throughout the length of those protracted proceedings, Trump would remain in office with access to the nuclear codes.
In his recent New York Times op-ed, Nicholas Kristof, quoting Harvard's renowned Constitutional Law Professor Laurence Tribe, opined that the 25th Amendment offered a viable means for removing Trump from office. Per the language of Section 4 of the 25th Amendment, if Vice President Mike Pence and a majority of Trump's own cabinet transmitted to the leaders of the House and Senate "their written declaration that [Trump] 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." The burden would then shift to Trump to submit "his written declaration that no inability exists." If he submits a declaration contending that he is able to carry out the duties of his office, Trump would not be permanently removed unless two-thirds of both Houses of Congress upheld the Vice President's declaration.
Irrespective of the legal bases for impeachment --- such as Trump's corrupt and remarkably overt violations of the Constitution's Emoluments Clauses --- it is unlikely that a GOP-controlled Congress would be willing to entertain, let alone vote to impeach a Republican President. This would especially be true if, as is likely, the Articles of Impeachment were introduced by Democratic members of the House.
By contrast, as observed by Lawrence O'Donnell during a Feb. 20 airing of The Last Word (see video below) --- if successfully invoked, the 25th Amendment would pit Republicans against Republicans: to wit, Vice President Mike Pence and a majority of the cabinet against Trump and a minority of the cabinet. If the chaos that is the Trump administration continues and potentially threatens GOP majority rule in either or both houses of Congress in 2018, there's a distinct possibility that, as predicted by Sen. Charles Schumer (D-NY), the dynamics within the GOP could undergo a significant change. If he could overcome loyalty to the man who named him as his running mate, Pence and a majority of the cabinet could legally initiate a swift end to the Trump presidency.
That's a lot of "ifs"...and even if they all came to pass, there is more to think about regarding this path...
There can be little doubt but that Donald Trump's presence in office entails what The Washington Post aptly described as a "unique threat to American democracy." In a subsequent article over the weekend, the Post painted a disturbing picture of an unhinged President who "rages against leaks, setbacks and accusations." The article included an observation offered by conservative commentator, Peter Wehner, who had served as the top policy strategist in the George W. Bush White House:
According to Noam Chomsky President Trump represents far more than a simple threat to democracy. He represents nothing less than an ominous threat to humanity's very survival.
Those assessments were by no means undermined by a gullible corporate-owned media assessment that Trump's ability to calmly read a teleprompter during his recent address to Congress was an act of statesmanship.
For the most part, on-air commentators ignored both the severe substantive deficiencies of Trump's ridiculous budget proposals and Sen. Bernie Sanders's powerful response, which the mainstream media failed to broadcast live.
Whatever honest misperception of Trump as "presidential" that either the MSM or viewers acquired were quickly erased when Trump unleashed a Twitter storm on Saturday, repeatedly setting forth the evidence-free claim that President Barack Obama had ordered a wiretap of his phones.
"How low has President Obama gone to tapp [sic.] my phones during the very sacred election process," Trump railed. "This is Nixon/Watergate. Bad (or sick) guy!"
No one has come up with a scintilla of evidence that would support a Trump wiretap claim that entails an Obama-led "silent coup" conspiracy theory bubbling up from the fever swamps of the so-called Breitbart "News" Network.
Obama spokesman Kevin Lewis tweeted that Trump's wiretap claim was "unequivocally false." James Clapper, the former Director of National Security, denied that either Trump or his campaign had been tapped. Realizing that Trump had not only smeared Obama but also the Federal Bureau of Investigation, FBI Director James Comey asked the Department of Justice --- a department headed by Jeff Sessions, a Trump appointee who could eventually face perjury charges --- to publicly refute Trump's wiretap claim.
Referencing Trump's charge, House Minority Leader Nancy Pelosi (D-CA) labeled Trump as the "Deflector in Chief." Her theory is that Trump had dredged up the Obama accusation in order to divert attention from Sessions' travails and "Russia-gate" --- a potential scandal that would truly bring out the irony in Trump's feeble effort to link his predecessor to Richard Nixon and Watergate.
Watergate began with a break-in at Democratic National Committee (DNC) headquarters to obtain information that would benefit then-President Nixon's re-election campaign. Russia-gate involves the yet to be proved possibility of collusion between the Trump campaign and Russian intelligence that allegedly included hacking into the DNC servers to obtain information that might harm the Hillary Clinton campaign.
While deflection may have been part of the motive behind Trump's wild wiretap claims, that only scratches the surface of the threat Trump poses to constitutional democracy and the rule of law --- especially when this latest lie is placed within the context of the "Trump Administration's war on the press".
Like his earlier and oft-repeated "blatantly false claim" that between three and five million fraudulent votes were cast during the 2016 Presidential Election, the Conspiracy-Theorist-in-Chief, it appears, has taken a page out of the "Big Lie" playbook of Nazi Propaganda Minister Joseph Goebbels:
According to Professor Tribe Trump's "use of his office to falsely accuse [his] predecessor of an impeachable felony" is, in and of itself, "an impeachable offense."
The 25th: a legal means to remove Trump from office
Tribe's legal interpretation is grounded upon the actual language of Section 4 of the 25th Amendment and appears to be fundamentally sound. Yet, it triggered an angry retort from attorney Robert Barnes entitled "Give it Up Trump-Haters, You Can't Legally Remove Trump Using 25th Amendment Either."
Barnes, a Los Angeles-based attorney who specializes in the criminal defense of those charged with tax evasion, begins his polemic via a Trump-like ad hominem assault on Professor Tribe. Barnes placed the word "scholar" in quotes and alleged that Tribe had "converted his Constitutional Law class at Harvard this semester to a class in the law of conning liberals." In doing so, Barnes actually reinforced an event, which provides an example as to why Donald Trump is unfit to serve as President.
After an adverse ruling that halted his ill-conceived, selective nation Muslim ban in January, Trump, by way of a tweet, referred to U.S. District Court Judge James Robart, a George W. Bush appointee to the federal bench, as a "so-called judge." Trump's disrespect of the judiciary, along with his mistaken belief that he can simply rule by fiat --- legislative and judicial branches be damned --- reflects either a profound ignorance of or antipathy towards the limits the U.S. Constitution places on executive power.
Barnes' scurrilous smear is both disrespectful and unfortunate. Tribe is one of this nation's foremost legal scholars. He graduated from Harvard Law magna cum laude in 1966 --- eight years before Barnes was born. From 1966 to 1968 Tribe successively served as a law clerk for California Supreme Court Justice Matthew Tobriner and U.S. Supreme Court Justice Potter Stewart. Tribe began as an associate professor of law in 1968. Referencing Tribe's treatise, American Constitutional Law, former U.S. Solicitor General Erwin Griswold wrote: "No book, and no lawyer not on the [Supreme] Court, has ever had a greater influence on the development of American constitutional law."
Barnes next argues that the 25th Amendment does not apply unless "the President is legally incapacitated," (emphasis added), to wit: "the literal inability to function --- coma status, or its equivalent, generally. A mental illness so severe it deprives a person from being able to feed themselves, etc." Barnes suggests the Vice President would have to "prove" incapacity
Barnes's polemic is fallacious. First, the 25th Amendment does not refer to "incapacity." To the contrary, it states that the Vice President and a majority of the cabinet can invoke its remedies if they determine that the "President is unable to discharge the powers and duties of his office." (Emphasis added). Barnes, who appears to have been blinded by the right, fails to recognize that an individual's baseline ability to feed or clothe his or herself falls well short of the ability "to discharge the powers and duties" of a President of the United States. Second, neither the Vice President nor the cabinet are parties who would have to "prove" their "unable to discharge" determination to a court of law.
Like impeachment, the issues raised by 25th Amendment are political questions that are not subject to judicial review. Trump's temporary removal from office would occur automatically upon the submission to the House and Senate leaders of the declaration that he was "unable to discharge the powers and duties of his office." His removal would become permanent if two-thirds of each chamber agreed with the assessment that Trump "is unable to discharge the powers and duties of his office."
Careful what you wish for
From the perspective of many of those demonstrators who took to the streets on "Not My President's Day," neither impeachment nor the 25th Amendment provide an ideal solution. Both methods would elevate a right wing ideologue, Mike Pence, who demonstrated during the Vice Presidential debate that he is a more polished liar than the unhinged Donald Trump could ever hope to be.
Like so many in his party, Pence has been linked to voter suppression tactics. He was also recently exposed as a hypocrite in slamming Hillary Clinton's use of her private email servers to conduct State Department business when he had engaged in the very same conduct as the Governor of Indiana.
Where Trump chaos instantly produced widespread revulsion, thereby increasing the prospects for a Democratic come-back via the 2018 midterm election, Pence's polished, Dick Cheney-like ability to deliver the quiet lie with a straight face could, in the end, provide a greater danger to the republic than the often "laughable" bevy of lies produced during many of Trump's irrational rants.
That said, a Pence presidency may still be preferable to what Noam Chomsky sees as the "terrifying" prospect of a nuclear-armed Donald Trump.
Full Text of Section 4, 25th Amendment
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 forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one 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.
Lawrence O'Donnell addresses the 25th Amendment on The Last Word...
Ernest A. Canning is a retired attorney, author, Vietnam Veteran (4th Infantry, Central Highlands 1968) and a Senior Advisor to Veterans For Bernie. He has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing