How do you solve a problem like the Donald? In a much-discussed column that ran Tuesday, Ross Douthat offered “The 25th Amendment Solution for Removing Trump.” Our 45th president has, by now, Douthat argues, demonstrated a breathtaking lack of the minimum requirements for the position he holds: including “managerial competence, a decent attention span… [and] a measure of restraint and self-control.” But given that his offenses thus far smack less of “high crimes [than] simple omni-incompetence,” removal under the 25th Amendment, on the grounds that Trump is “unable to discharge the powers and duties of his office,” is constitutionally “more appropriate” than impeachment, Douthat writes.
As a libertarian, I’m a sucker for crazy, longshot ideas, so of course I enjoyed the column. But Douthat’s argument rests on an unexamined assumption: that the impeachment power is categorically unavailable in cases of “omni-incompetence.” I don’t think that’s right. As I argue in a forthcoming piece for Reason magazine, this is the rare congressional power that’s actually broader than Congress believes it to be. (I’m sure Nick Gillespie’s going to love it.)
The view that you can’t impeach a president for gross incompetence is widely shared, and some of the legislative history behind Article II, section 4, supports it. According to Madison’s notes on the Constitutional Convention, when George Mason moved to add “or maladministration” to the list of impeachable offenses, Madison objected that “so vague a term will be equivalent to a tenure during pleasure of the Senate.” Mason then substituted “high Crimes and Misdemeanors,” and that’s what we ended up with.
But that text does not preclude all cases of “maladministration.” As the Nixon-era House Judiciary Committee report on “Constitutional Grounds for Presidential Impeachment” noted, “at the time of the Constitutional Convention, the phrase ‘high Crimes and Misdemeanors’ had been in use for over 400 years” in British impeachments,” and extended to negligent discharge of duties, “procuring offices for persons unfit and unworthy of them,” and other transgressions falling short of grave criminality. Early American commentators, like Justice Joseph Story, understood the phrase to include offenses “growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office.”
And as Jonathan Turley has pointed out, both during and after the drafting of the Constitution, Madison himself took a view of the impeachment power broad enough to cover gross mismanagement, incompetence, and other “conduct simply incompatible with the status of the chief executive.” In the first Congress, Madison suggested that “the improper continuance of bad men in office,” or the “wanton removal” of good ones were acts of “maladministration” for which the president could rightfully be impeached.
As Douthat sees it, however, you can impeach the president for being a crook; if he’s a clod or a crackpot, you can’t—and he puts POTUS emphatically in the latter category. He portrays Trump as borderline non compos mentis: “a child… cannot really commit ‘high crimes and misdemeanors’” or “obstruction of justice.”
That assessment of Trump’s faculties is too harsh, it seems to me, and, at the same time, lets him off too easily. But even if it were correct, that wouldn’t mean impeachment is off limits. It’s unjust to punish someone mentally incapable of assuming legal responsibility. But where criminal convictions deprive the accused of liberty, impeachment only puts the officeholder out of a job he or she was unfit to hold.
As it happens, the first impeachment trial in American constitutional history involved credible evidence that the accused was insane. In 1803, the House charged federal district court Judge John Pickering with, among other things, appearing in court “in a state of total intoxication,” and conducting himself in a “profane and indecent manner” making him guilty of “high misdemeanors, disgraceful to his own character as a judge.” Pickering’s own son, as well as his doctors, confirmed his mental instability. But despite his defenders’ argument that it was an “absurdity” to impeach a man who wasn’t in his right mind, the Senate removed Pickering in 1804.
The American “precedents” are thin, 19 impeachments in the House, 15 of them federal judges. But those we have are in keeping with a remedy designed to “reach a broad variety of conduct by officers that is both serious and incompatible with the duties of the office.”
In our last national debate on the subject, President Clinton’s defenders argued that the standard for impeaching presidents had to be higher than for judges. After all, judges serve for life, or during “good behavior,” and presidents are elected and term-limited. But the other main differences between the two positions hardly argue for leniency toward presidents. Judges don’t supervise the entire federal law enforcement apparatus or have the massive destructive capacity of the U.S. military at their disposal. As Madison argued at the Philadelphia Convention, impeachment was “indispensable” when it came to the president, because, among other things, “he might lose his capacity after his appointment,” which “might be fatal to the Republic.”
Like Douthat’s proposal, impeachment is also a crazy, longshot idea. Still, legally and practically, it's less of a stretch than removal via the 25th amendment.
That amendment, introduced in the wake of the Kennedy assassination, clearly aimed at near-total disability in the medical sense—whether temporary, as during surgery, or permanent: Wilson’s stroke; if JFK had survived. In context, “unable to discharge the powers and duties of his office,” has to mean something more than “turned out to be dangerously bad at the job.”
As a practical matter, unless Trump decides he’s just as “witless and unmastered” as Douthat says he is, the “25th Amendment Solution” only gets off the ground via Section 4, when and if Vice President Mike Pence and a majority of Cabinet-department heads declare him unfit. Pence, who’s thus far stood by his man like a classic political “good wife,” seems unlikely to make the move. Even then, final resolution of the issue requires a supermajority vote in both chambers of Congress, as opposed to only the Senate in removal via impeachment. Trump might not be able to get away with standing “in the middle of 5th Avenue and shoot[ing] somebody,” but surely he could expect one-third of the House to back him here?
Either way, one thing is clear, to me at least: our system makes it far too hard to get rid of unfit presidents.