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.”