Last week I wrote an article lampooning the President. For those of you that know me, this is something I do often—lampoon the President. So it might be surprising this week that I, albeit begrudgingly, am writing in defense of the President. This past week the New York Times broke a story that Deputy Attorney General Rod Rosenstein had floated the idea of having himself, senior administration officials (cabinet members and even Vice President Pence) wear wires when talking to the President, all with the purpose of exposing the President’s supposed lack of mental fitness for the job.
The fourth clause of the 25th Amendment gives Congress the ability to remove a president from office in a way other than impeachment. First, cabinet members and the vice president must hold a vote, and if a majority votes that the president is no longer fit to serve, then they’d send a letter to both houses of Congress with their assertion. The president would then be removed from office if both houses of Congress vote with a two-thirds majority that the president is unfit to serve. At that point, the Vice President would assume the office of the president.
I went through all the procedural details above to make the point that the 25th Amendment, although obscure to the armchair constitutional scholar, is anything but a mysterious and extraneous constitutional quirk. Our country’s third youngest amendment was ratified in 1967, four years after the assassination of JFK to answer the following questions.
What happens if a president is grievously wounded? What if they are mentally incapacitated and can’t continue doing the job responsibly? In fact, the 25th Amendment has actually been triggered twice before. The 25th Amendment came in to play during Spiro Agnew’s resignation as Richard Nixon’s Vice President. The second clause of the 25th Amendment stipulates that when there is a Vice Presidential vacancy the President nominates a Vice President. Richard Nixon nominated Gerald Ford. And, ironically enough, when Gerald Ford assumed the presidency after Nixon’s resignation, he too acted in accordance with the 25th to nominate Nelson Rockefeller as his Veep.
If it is not clear at this point, the 25th Amendment is very real and has sharp constitutional teeth, which is why senior government officials should not talk loosely about invoking it, especially when it relates to removing a sitting president. This is why I find Deputy AG Rosenstein’s move so troubling.
From his ties to Russia to his using campaign funds illegally to pay off Stormy Daniels, the President has already committed a litany of impeachable offenses. It would not surprise me for impeachment proceedings to be brought to the floor if Democrats win the House. Regardless of whether or not you agree with the validity of such hypothetical proceedings, it is undeniable that this process is democratic, and how government should function when the integrity of the President is in question.
On the other hand, going behind the President’s back and pitting his advisors and cabinet advisors against him, effectively turning them into informants, sets a scary precedent. I don’t think that Rosenstein wanted to pursue the 25th out of self-interest nor out of an affinity for power, so I won’t compare him to Machiavelli (or maybe I just did). But still, going behind the President’s back like this feels a bit more coup-like than I am comfortable with.
There have been numerous occasions during Trump’s time in office that have caused many to question his mental state. There was that time last May when Trump revealed highly classified information to Russia’s foreign minister and U.S. ambassador when they visited the Oval Office. But c’mon, everyone has brain farts once in a while. I sometimes forget to turn in an assignment on Moodle. Trump sometimes forgets to not share classified information with one of our fiercest foreign adversaries—same, same. At the U.N. last week, Trump had a press conference that was a horror-show of Trumpian proportions. In said horror show, Trump referred to a reporter who he assumed to be Kurdish as “Mr. Kurd”. In fact, the press conference, in which Trump pettifogged with reporters about whether world leaders laughed at or with him during his General Assembly speech, was such a disaster that a concerned Jared Kushner was caught on video mouthing “shit” as Trump lumbered off the stage. With all this said, it’s abundantly clear that Trump has a habit of making errors in his judgement, and his many shortcomings might have even put our national security at risk. Still, presidents do have broad discretion to share classified information. And justifying the removal of Trump from office with an argument that he is mentally unfit to the degree that he can no longer serve effectively politicizes mental fitness and narrows the definition of mental fitness so that it would be more likely for future presidents to feel restricted in their actions by the threat of removal via the 25th.
Another, more purely political reason why I disagree with Rosenstein’s idea is that it plays directly into the hands of Trump and his conspiracy-theory-driven crusade against the intelligence community. Trump was understandably upset when the New York Times story about Rosenstein’s plan broke. But I am sure he was also a bit happy. It is very easy to see how the second most powerful member of the D.O.J. floating the idea of removing Trump from office would give credence to Trump’s baseless claim that there is a deep state within the federal government fighting against his agenda and actively trying to remove him from office. The fact that Rosenstein declined to follow through with his plan and actually refuted the New York Times’ piece is irrelevant. Trump now has a scapegoat, and not just any scapegoat. Rosenstein controls the Mueller investigation, which Trump believes is a hoax, part and parcel of the deep state’s efforts to remove him from office. Trump now has an excuse to fire Rosenstein, which could potentially sink the Mueller investigation, an investigation that may very well lead to Trump’s impeachment.
It is my belief that Trump has committed a number of impeachable offenses. So attempting to remove him from office via the 25th Amendment would be doing a disservice to other, more legitimate ways to check the President’s power that could shed light on his wrongdoings and help the country avoid similar situations in the future.