First, the 25th Amendment does not work, or at least it does not work as devised. If the president is disabled, he may not be physically able to temporarily pass power to the vice president. The Trump presidency also forced us to consider a situation in which a president is mentally unfit but a sycophantic vice president is unwilling to activate Section 4 of the 25th Amendment or unable to round up the requisite number of Cabinet officials to transfer power from the president. One solution would be a statute seeking to implement the terms of the 25th Amendment by requiring the president to designate in writing the mechanism for transferring power in case he is disabled. He could, for example, sign a letter transferring power and specify the circumstances under which it would be activated such as a stroke or other medical episode that renders him unconscious.
It is not clear whether such mechanisms would be constitutional. Perhaps a new amendment will be necessary. In any event, we need to consider the myriad situations in which a disabled president and a spineless vice president leave us without a functioning chief executive.
Second, we need a formal mechanism for annual physical and mental exams for the president and mandatory disclosure of the results (including waiver of doctor-patient privilege). Before Trump, we never had a president so dishonest and so willing to enlist dishonest medical personnel to deceive the public about the state of the his health. The obvious question arises: How would the measure be enforced? Even if not enforceable (except by impeachment, which we have also learned is an ineffective tool for maintenance of constitutional norms) there may be utility in having the law on the books — along with a requirement to release tax returns and other pertinent financial information.
This brings us to a third issue: We need a statute to activate the emoluments clause. The bill could include a mandatory requirement for liquidation of the president’s business holdings (with an approved blind trust arrangement); a presumption that all gifts are disallowed unless specifically approved by Congress; a statutory definition of “emoluments”; or a built-in remedy of forfeiture in case the president violates the ban on foreign emoluments. Congress can also provide a speedy legal process for resolution of disputes, perhaps directly to the D.C. Circuit court.
Fourth, the Justice Department should undertake a review of its current guideline that a sitting president cannot be prosecuted. This does not mean the president could be tried and locked up during his term. However, the guidelines prompted special counsel Robert S. Mueller III to issue an ambiguous and counterproductive report in which evidence of the president’s obstruction of justice was obscured. At the very least, the Justice Department guidelines should be revised to specify that a special counsel appointed for investigating presidential wrongdoing must make a specific recommendation to Congress as to impeachment and a finding as to whether criminal laws have been violated. Counsel could be authorized to seek an indictment to toll any statutes of limitation.
In some sense, we learned during the Trump years that a president bent on acting in bad faith and enabled by his own spineless party can do great damage. A malicious president may find ways to maneuver around whatever constraints are imposed on him because the ultimate punishment — removal after impeachment — is so difficult to obtain. Nevertheless, if the task in the post-Trump era in part concerns restoration of legal norms, any effort to reinforce constitutional expectations should be welcome. With a Democrat in the White House, Republicans — for once — may be amenable to reforms to check the excesses and misconduct of the executive branch.
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