Ross Douthat, in a column recommending its use to get rid of President Trump, confuses unfitness with inability “to discharge the powers and duties” and thereby recommends a disastrous process. He asserts that Trump is a “child” and a “child” cannot commit high crimes or misdemeanors. He asserts that Trump doesn’t understand the office well enough to have the mental state required to commit obstruction of justice.
Let’s count the ways in which this is wrong before addressing why it is dangerous, not to mention exceedingly unconservative.
First, Trump does not need to understand there is a law against obstruction in order to violate it. All he needs do is commit actions with the purpose of stopping or slowing the FBI. (Douthat is not alone in misunderstanding specific intent crimes.) There is substantial evidence, including his own confession that this is precisely why he fired FBI Director James B. Comey.
Second, impeachment does not require violation of a criminal statute. Our friends at Lawfare blog remind us:
The boundaries of the impeachable offense are not coextensive with the boundaries of the criminal law. There are things that are not criminal that are certainly impeachable, and there are crimes that are generally regarded as too trivial to trigger the Constitution’s standard in Article II § 4 of “Treason, Bribery, and other high Crimes and Misdemeanors.” The great constitutional scholar Charles Black, in an excellent volume entitled, Impeachment: A Handbook written during the Watergate era, describes this point in vivid detail.
In other words, impeachment can be used for situations precisely like this one. We need not resort to an amendment designed for a wholly different purpose to get rid of a president who is a menace.
Third, we should not medicalize amoral, stupid and/or illegal behavior. We don’t consider people to be incapacitated because they are terrible bosses or rotten to their family, or embark on inane criminal enterprises. In the political/legal realm, designating someone as “unable to discharge their duties and powers” removes their culpability, making them into helpless victims. Trump might act “like” a child, but infantilizing him is not the solution. The prisons would be empty if we decided stupid or inept criminals couldn’t be prosecuted.
Again, we have maintained that Trump might become so emotionally unhinged and delusional as to meet the requirements for activating the 25th Amendment. Giving the Russians secrets isn’t remotely sufficient. Moreover, we would only incentivize political coups seeking to knock out a really bad president, thereby undermining our entire electoral system. If the Russians’ aim was to destabilize our democracy, nothing would “succeed” like turning the United States into a banana republic when the legitimacy of the presidency really is at issue. Finally, such action would deprive the “new” president of legitimacy and create a huge segment of the population unwilling to recognize a peaceful transfer of power.
Conservatives, of all people, should know better, as defenders of the “rule of law.” The latter requires good faith application of our statutes and Constitution. They provide stability, preventing whim, animus and mercurial personalities from shifting the ground out from under us. Twisting the law, just like ignoring it, leaves us unprotected from the whims of imperfect leaders, and allows dishonorable men to pursue selfish ends, often disguised as high-mindedness.
In sum, Trump’s unfitness can be dealt with under the impeachment process outlined in the Constitution. He can be removed properly without lasting damage to our republic. Let’s reserve the 25th Amendment for its intended purpose; to do otherwise would do lasting damage to the republic.