Yes, Trump would probably fight that declaration — as is his constitutional right — so then just get two-thirds of both chambers of Congress to agree that Trump is “unable to discharge the powers and duties of his office,” in the language of the amendment. And simple as that, Trump is gone.
No, say constitutional law and political experts The Fix spoke to. Using the 25th Amendment — which sets up an order of succession if a president dies or is unable to serve — to get rid of Trump is pure fantasy and even less likely than impeachment. Let's get into why.
1) Crazy is in the eye of the beholder
The 25th Amendment was ratified in 1967 a few years after John F. Kennedy was assassinated and then-Vice President Lyndon B. Johnson took his place. Johnson had a heart attack before Kennedy was killed, so Congress was nervous about another massive leadership vacuum, said Georgetown University political professor Michele Swers.
So it wrote an amendment that spelled out exactly what the country should do if the president “is unable to discharge the powers and duties of his office.” The amendment's authors set it up so that the president's own administration initiates a declaration a president is physically/psychologically unfit to serve. (The idea is that a president's own White House and Cabinet would be much less biased against the president than a Congress of an unknown party.)
It's sometimes called the colonoscopy clause, says Andrew Wright, a former Obama White House lawyer now at Savannah Law School, because it's been used three times to briefly declare the vice president the president, while the real one is knocked out cold.
Trump has no long-term colonoscopies coming up that I know of. But Douthat is arguing that Trump has already proved he's unfit: Sharing classified information with the Russians and trying to scuttle an FBI investigation into one of Trump's “good guys”? How much clearer can you get?, he's arguing.
A lot clearer.
“The intentions of the amendment generally surround a president having a stroke or suffering paranoid delusions or a psychological break down,” Wright said. There's a very high bar on what can be used to pull the trigger on this amendment, because it has a drastic effect: overturning the will of the people and the results of an election.
2) It could backfire, bigly
Speaking of will of the people, let's say there was a consensus in Washington that Trump is too mentally unstable to serve.
But could you imagine if a bunch of billionaire Cabinet members and well-heeled members of Congress and Pence (a former member of Congress) kicked out this populist president against his will?
“It would justify Trump's whole shtick,” said Charles C.W. Cooke, editor of the conservative National Review (and no fan of Trump). “He would say he came to Washington to vanquish these feckless elites, and they got rid of him.”
Plus, since crazy is in the eye of the beholder, there's no guarantee Trump supporters would see things Washington's way. Around Trump's 100 days (and before this recent string of controversies), a Washington Post-ABC News poll found just 4 percent of Trump supporters said they would change their vote in November's election. In other words, his base loves him.
“I think the public perception would really be more damaging to the country than even an impeachment,” Wright said.
3) Impeachment is easier
And impeachment is hard.
While Congress has started impeachment proceedings for three presidents (Andrew Johnson, Richard Nixon and Bill Clinton), no president has been removed from office by it. And no Congress of the same party as the president has initiated impeachment proceedings.
So, how to impeach? It requires Congress to essentially agree that the president has committed “high crime and misdemeanors.” (Impeachments are about actions, while the 25th Amendment is about one's physical or mental state.)
As The Fix's Peter Stevenson explains, once Congress decides the president did something worthy of impeachment (it doesn't necessarily have to be afoul of the law, as I originally wrote), the next steps are:
- Hold hearings
- A majority in the Republican-controlled House of Representatives votes to impeach him
- He faces a trial in the Senate, presided by Chief Justice John G. Roberts Jr.
- Two-thirds of the Republican-controlled Senate votes to impeach him
It's a long process that requires most of Congress to be on board. Right now, there is only one Republican of the 290-plus serving in Congress who is willing to publicly say that if Trump did ask the FBI director to lay off an investigation of Trump's ally (and the White House denies he did), it would be grounds for impeachment.
For Trump to get fired via the 25th Amendment, there are even more hurdles to clear. You don't just need Congress, you need the vice president, a majority of the Cabinet and a supermajority of Congress to want to get rid of Trump.
In option two, virtually the entire federal government plays a role.
So: more hurdles to clear, a premise that's on shaky constitutional ground and the potential for a massive political backlash. In other words, don't hold your breath for the 25th Amendment to rise up and kick Trump out of office.