Is Donald Trump Crazy? No, but This 25th Amendment Talk Is.

All I can say is that if Trump agrees to this ridiculous arrangement, it better be on TV
July 17, 2017 • Commentary
This article appeared on The Daily Beast on July 17, 2017.

An article of impeachment introduced last week charges President Donald Trump with obstructing the investigation of his campaign’s possible collusion with Putin’s Russia. Like most plans for dethroning Trump, it’s based on proving that the president is crooked.

Rep. Jamie Raskin (D-MD) has a different plan: he wants to remove Trump on the grounds that he’s crazy. Raskin, a former law professor and now a member of the House Judiciary Committee, favors invoking the 25th Amendment’s provisions for declaring the president “unable to discharge the powers and duties of his office.” The bill Raskin’s pushing would create an “Oversight Commission on Presidential Capacity,” empowered to examine the president for signs of mental illness.

Raskin’s bill now has 25 cosponsors, including more than half of his Democratic colleagues on Judiciary. But it’s hard to see this “25th Amendment Solution” as anything more than a publicity stunt.

Here’s how it’s supposed to work: under powers granted by Section 4 of the amendment, Congress sets up a team of four psychiatrists, four physicians, two “retired statesperson[s]” such as former presidents and VPs, and a team‐​elected chairperson. When Congress summons them into action, their mission, should they choose to accept it, is to examine the president and determine whether he “lacks sufficient understanding or capacity to execute the powers and duties of the office”—and report back within 72 hours.

That’s the plan: An 11‐​man strike force of assorted shrinks and medics—plus, say, Bill Clinton and Dan Quayle—descends on Donald Trump, takes his vitals, and puts him on the couch to work out whether he’s too nutty to be president. All I can say is that if Trump agrees to this ridiculous arrangement, it better be on TV.

Of course the examination will never happen, as Raskin’s bill all but concedes: “any refusal by the President to undergo such examination shall be taken into consideration” in the commission’s disability ruling. But how could such a refusal count as evidence of mental impairment? Agreeing to be poked and prodded under such circumstances would prove Trump has a screw loose. What’s more, the psychiatrists on the team are barred by professional ethics rules from diagnosing a patient they haven’t personally examined.

But imagine that the commission declares the president incompetent anyway: the 25th Amendment also requires the vice president to ratify their assessment before he can take power. Mike Pence, who’s thus far stood by his man like a classic political “good wife,” seems unlikely to sign on. Even if he did, Trump just has to send a letter to Congress affirming his own competence, and he’ll be restored to power unless “by two‐​thirds vote of both Houses,” Congress sides with Pence and the commission—something else that’s never going to happen.

Raskin has a point when he charges that Trump’s ongoing “bizarre litany of events and outbursts” has raised legitimate concerns about his temperament and stability. But the 25th Amendment wasn’t designed for ejecting “merely” erratic or untrustworthy presidents. Introduced in the wake of the Kennedy assassination, it aimed at situations of total disability, whether temporary or permanent. The worry with Trump isn’t that he’s “unable to discharge” the powers of his office—it’s that he’s reckless and immature enough to do enormous damage while he does so.

We already have a standing body empowered to make an initial ruling on that sort of presidential fitness: the U.S. House of Representatives, to which the Constitution grants “the sole Power of Impeachment.” Contrary to conventional wisdom, that remedy isn’t limited to cases of corruption or abuse of official power. In its survey of the “Constitutional Grounds for Presidential Impeachment,” the Nixon‐​era House Judiciary Committee identified a third category of impeachable offense: “behaving in a manner grossly incompatible with the proper function and purpose of the office.”

The House has the power to impeach, and the Senate to remove, a federal officer whose conduct “seriously undermine[s] public confidence in his ability to perform his official functions.”

Congress’s reluctance to engage in that debate is probably what’s driven Rep. Raskin’s to political gimmickry. So far, Republicans and most Democrats shrink from the notion of impeachment, treating the “I‐​word” as politically blasphemous. But as Trump’s “bizarre litany” continues, Congress may not be able to avoid the debate indefinitely.

Impeachment’s purpose, constitutional scholar Greg Weiner explains, is “prophylactic,” not punitive: “to protect the public” from officials whose conduct presents an unacceptable risk. Whether Trump’s conduct presents such a risk isn’t a clinical question for specialists in lab coats—it’s a practical judgment that the Constitution leaves to the people’s representatives. 

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