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Thoughts on the 25th Amendment

Ross Douthat has been taking a lot of flack for his suggestion [1] that Vice President Pence and President Trump’s cabinet act to remove Trump from office under the 25th Amendment. Two of the best responses are by Charles C. W. Cooke [2] and Josh Barro [3]. The most important, which isn’t really a direct response to Douthat but which articulates the key background concern, is by our own editor, Robert W. Merry [4].

The common thread in all of these responses is absolutely correct: removing Trump in this manner would amount to a kind of coup. Trump’s behavior since being elected is entirely consistent with his behavior during the campaign and throughout his career, and he won anyway, substantially because of the near universal opposition (or at least abstention) of the great and good. To remove him now on the grounds of being unfit would be understood, quite properly, as a direct repudiation of the outcome of the election. One can imagine the horrible potential consequences of such a move — particularly since, if he is deposed, you can be absolutely certain that Trump will personally spend the rest of his natural life making those consequences as horrible as possible, without regard for the cost to the country.

Nonetheless, the discussion does not end there.

First of all, we may be in the middle of a quasi-coup already, in the sense that the military and the intelligence community may be preventing the President from conducting his own foreign policy (assuming that he has one, which at this point is highly doubtful). If the President continues to act in an alarmingly erratic manner, I don’t think it is far-fetched to imagine that the cordon around him will tighten further, to the point where an entire generation of senior leadership of the military and espionage services become accustomed to the notion that one of their key functions is to protect the country from its own president. This is precisely the scenario I worried about in my recent column [5]. It is not obvious to me that four years of institutional insubordination is better for our democracy than a cabinet coup would be.

Indeed, there is an argument to be made that at least a cabinet coup would be forthright and above-board about what is going on. And, as Douthat points out, members of Trump’s own cabinet are in a better position than anyone, including the voters, to be able to say: we’ve seen the man up close, and he’s simply unable to do the job. To be clear: that’s not what the 25th Amendment was designed for — but it is a lot closer to what it is for than having Congress impeach a President who has not (yet) credibly been accused of any high crimes or misdemeanors.

(As an aside: I’m curious to learn whether the various folks debating the application of the 25th Amendment have read this little-remembered political thriller [6] by the late Bill Safire. I encourage people to check it out; it’s not a bad read and it’s always interesting to see what well-informed observers in the past could imagine about the future.)

Second, consider the inherent limits on the precedent that would be set by a cabinet coup. The cabinet is not like Congress, independently accountable to the people. Nor is it like the military, a permanent bureaucratic interest. The cabinet is a creation of the president. So what lesson would future presidents draw from a cabinet coup against Trump? They would take care that their cabinets were stocked with people who would be unlikely to want to remove them from office and install their Vice Presidents in their stead. But that is already the normal state of affairs in a properly functioning party system. Trump is extraordinary in that he took over the GOP from the outside, and therefore brought only a handful of people into government who were part of his “movement.” How often will that situation recur?

Moreover, if the precedent were more serious, and future presidents genuinely had to worry about losing the confidence of their party and potentially being removed by their cabinet in consequence, would that be such a terrible constitutional innovation? It’s pretty much exactly what happens in parliamentary systems, where votes of no-confidence are how leaders can be deposed in between scheduled elections. Douthat has expressed his own enthusiasm for Theresa May. Perhaps he wishes we could acquire someone like her as chief executive by a similar constitutional operation.

Finally, those who worry about the political fallout from Trump’s removal, noting the powerful and justified popular fury at elite failure that powered his campaign, need to reckon with the fact that Trump’s presidency is going to do nothing whatsoever to reduce the scope of that fury. Indeed, it could well magnify it. Trump shows every sign of reneging on every significant promise he made during the campaign. He has no plans to address the economic or social problems that powered his own populist revolt. His only hope for continuance in power is to continue to stoke the resentments that put him in office in the first place. Trump is not the cause of the crisis — but neither is he any plausible part of the solution.

That solution can only come from — to coin a phrase — a “political revolution [7].” It doesn’t have to be Bernie Sanders’s version — it doesn’t have to be limited to one version at all. But it has to be something that involves people organizing to do politics, not putting their hopes in a comic-opera Napoleon figure. In that sense, perhaps nothing would be better than to demonstrate the manifest futility of the Trump quest, the extraordinary weakness of one angry, vain, solipsistic man pitted against the entire edifice of elite administration.

I would not go so far as to say I endorse Douthat’s proposal. But I will heartily endorse a bit more public honesty, both by those who are familiar with the actual situation inside the White House and those who so far have preferred to make their case for muddling through without reference to just how dire that situation appears to be. Those who continue to hope that Trump perseveres need to reckon with the near-total evaporation of his support, not only in the permanent bureaucracy but among his own appointees, and the reasons it has evaporated. These are the most important paragraphs in Douthat’s column:

Read the things that these people, members of his inner circle, his personally selected appointees, say daily through anonymous quotations to the press. (And I assure you they say worse off the record.) They have no respect for him, indeed they seem to palpitate with contempt for him, and to regard their mission as equivalent to being stewards for a syphilitic emperor.

It is not squishy New York Times conservatives who regard the president as a child, an intellectual void, a hopeless case, a threat to national security [8]; it is people who are self-selected loyalists [9], who supported him in the campaign, who daily go to work for him. And all this, in the fourth month of his administration.

This will not get better. It could easily get worse.

That is the problem in a nutshell. Any argument for muddling through — which is by far the preferable course for the integrity of our democratic institutions — needs to defend muddling through with that, and not some fantasy version of who one hoped Trump might have been, or might yet transform into.

17 Comments (Open | Close)

17 Comments To "Thoughts on the 25th Amendment"

#1 Comment By BrogK On May 18, 2017 @ 3:18 pm

I think that Mr. Douthat and others take themselves way too seriously.

#2 Comment By Anchor Down On May 18, 2017 @ 3:40 pm

“I don’t think it is far-fetched to imagine that the cordon around him will tighten further, to the point where an entire generation of senior leadership of the military and espionage services become accustomed to the notion that one of their key functions is to protect the country from its own president. “

Nonsense. Trump isn’t being “ring-fenced” by the military at all. It is the opposite.

Rather than insulating the country from Trump, the military and intelligence agencies have urged Trump to authorize reckless, destructive actions. Trump didn’t go into office planning to send more troops into Afghanistan, launch missile attacks on Assad, ratchet up our role in the ongoing starvation and reduction of Yemen, or back an “Arab NATO”.

That was Flynn, McMaster, and Mattis.

Our military and intelligence services have been so lionized despite failure, so overserved with the word “hero” despite corruption and dishonor, so overpraised, so deferred and truckled to, so pampered despite failure and the irrelevance of many of the battlefields where they failed, and despite the cost to urgent domestic priorities, that they have come to see themselves as little secular gods. Congressmen abase and degrade themselves before generals and top spies during confirmation hearings.

Heed Eisenhower, George Marshall, U. S. Grant, George Washington. Those were American soldiers. American in the sense that they swore to protect and defend the Constitution – and did it. Most of our mid-level officers and troops are still American soldiers in that sense, and God bless them. But the current crew of gorgeously bemedalled establishment incompetents around Trump, with their foreign “consultancies”, their media contracts, their well-padded nooks in Beltway think tanks, their board seats on defense industry companies, and their contempt for civilians and civilian control of the military, are a disgrace. They are the ones that should be “ring-fenced”.

#3 Comment By JonF On May 18, 2017 @ 4:42 pm

A book from the 90s called (I think) “Arc Light” tells the story of an American president who by some really bone-headed actions provokes a small nuclear exchange with Russia (yes, “small”– not a world-ended holocaust, though lots and lots of people do die). It happens gradually enough that the entire government has time to take shelter and immediately afterward Congress impeaches the president and removes him from office even though he committed no legal crime, just did something spectacularly– and lethally– stupid.

#4 Comment By Colorado Jack On May 18, 2017 @ 4:49 pm

” He has no plans to address the economic or social problems that powered his own populist revolt.”

Not entirely true. Trump has successfully depressed net immigration to the United States. That makes the labor force smaller than it would otherwise be, thereby improving the bargaining power of US workers. That’s the theory anyway. Could be the reality also. For sure, it’s what lot of his base wants.

#5 Comment By Fazal Majid On May 18, 2017 @ 5:26 pm

Military and intelligence insubordination is nothing new: MacArthur, Patton, JFK spending more of his time during the Cuban missile crisis dealing with his generals than the Russians, or Obama opting not to prosecute CIA torturers out of fear of a coup.

Trump reminds me of no one as much as Mohammed Morsi, who fell into the deep state trap by his imperious conduct.

#6 Comment By Hyperion On May 18, 2017 @ 5:41 pm

Trump didn’t go into office planning….

True, dat.

#7 Comment By R.S. Rogers On May 18, 2017 @ 6:15 pm

We don’t have to debate the wisdom of using the 25th Amendment for a purpose far beyond the intent of its drafters and ratifiers to rule out Douthat’s proposal as ridiculous. We can just consider the practicalities. He proposes the 25th Amendment as an alternative to impeachment at a time when the majority party in Congress makes the procedural hurdles of a simple majority in the House and a two-thirds majority in the Senate impossible to overcome to achieve President Trump’s removal. But if the vice president and the cabinet invoked the 25th Amendment, Trump could be permanently removed from office if and only if the House and the Senate both vote, by a two-thirds majority, to uphold the vice president’s usurpation. True facts: Two-thirds of the House is 290 votes. A majority of the House is 218 votes. And 290 is a larger number than 218. If Douthat despairs of winning 218 votes in the House to impeach Trump and send the matter to the Senate for his subsequent removal, how does he imagine that 290 votes can be found in the House to remove Trump?

The only “honesty” that talk about the 25th Amendment brings to the conversation is that it serves as a confession by those pundits who advocate in favor of the idea that they either have not actually read the Constitution, or they do not understand simple fractions sufficiently to know that 2/3 is larger than 1/2.

#8 Comment By Fran Macadam On May 18, 2017 @ 8:32 pm

“if … future presidents genuinely had to worry about losing the confidence of their party and potentially being removed by their cabinet in consequence, would that be such a terrible constitutional innovation? It’s pretty much exactly what happens in parliamentary systems, where votes of no-confidence are how leaders can be deposed in between scheduled elections.”

No, a non-confidence vote triggers an actual full-scale democratic election, not any leader’s immediate removal. And that leader might be returned by the voters again.

Why do you think Italy has a new government every few months?

What you’re proposing is entirely different than a democratic parliamentary process – not another election, but an actual undemocratic coup by unelected elites.

Some Americans do have a preference for being able to change government without elections. The Ukrainian President had agreed to schedule early election, but the Nuland/Kerry/Obama stable’s preference was for a coup, with the United States choosing the new President, as occurred.

#9 Comment By Fran Macadam On May 18, 2017 @ 8:36 pm

“Trump reminds me of no one as much as Mohammed Morsi, who fell into the deep state trap by his imperious conduct.”

No. The Deep State and assorted opposition tried every trick in the book after the election was tried to keep Trump from the office he won, before he ever was inaugurated.

#10 Comment By Howard On May 18, 2017 @ 9:47 pm

Once that genie comes out of the bottle, there will be no putting it back. We will be in a state of permanent crisis. Maybe the precedents of the War on Drugs and War on Terror will be used to create a permanent War on Extremism with perpetual emergency powers. At that point the Republic will be dead, and the Empire will be in place — an Empire to which no one will owe allegiance, but which all will fear. The titles will remain in place, but the essence will have change irrevocably.

That is too high a price to pay just because the people chose an oaf.

#11 Comment By Stephen Dedalus On May 19, 2017 @ 6:29 am

“Trump will never survive this Comey scandal.”

Brought to you by the people who told you:

Trump will never survive those remarks about Mexicans.
Trump will never survive the first GOP debate.
Trump will never survive the first Republican primary.
Trump will never survive Big Tuesday.
Trump will never survive the GOP field narrowing.
Trump will never survive the GOP convention delegates coming to their senses.
Trump will never survive the first presidential debate.
Trump will never survive the hot mike tapes.
Trump will never survive election day.
Trump will never survive the revolt of the electors.

#12 Comment By connecticut farmer On May 19, 2017 @ 9:00 am

Absent clear symptoms of physical or mental disability on the part of the POTUS which would prevent him from exercising his responsibilities , employing the 25th Amendment would otherwise amount to a putsch so let’s call a spade a spade. As such, this would amount to a nuclear option and would establish a possibly dangerous precedent. If memory serves, no such action was taken against Nixon in ’74 even though the amendment was already in place. On that occasion a Republican delegation led by Sen. Barry Goldwater and George Bush Sr. (then head of the RNC) marched into the Oval Office and told Nixon in no uncertain terms that the game was up and that he should leave the premises. If McConnell and Ryan, representing as they do their political party, tell Trump that the party cannot function while he remains in office, the same purpose can be served without invoking the 25th.

Ross D means well but…not a good idea.

#13 Comment By James Kabala On May 19, 2017 @ 11:53 am

R.S. Rogers: Douthat seems to be motivated more by ethical qualms than by practical considerations – he knows the 25th Amendment requires a bigger fraction, but he views it as the better choice because Trump has not committed “high crimes and misdemeanors.” But I think JonF is right – if the definition of “unfit” can be stretched as far as Ross wants to stretch it, the definition of “high crimes and misdemeanors” can be stretched as well.

#14 Comment By Gene Callahan On May 19, 2017 @ 3:21 pm

“Ross D means well but…”

Lenin “meant well” also. So did Mao. And Pol Pot.

Douthat is living a a dream reality, in which “meaning well” will have destructive effects. What he means is no excuse for his failure to face reality.

#15 Comment By Nelson On May 19, 2017 @ 8:40 pm

As much as I dislike Trump, I would not use this method unless he were about to preemptively nuke China or something similar. We live in a democracy, for better or worse.

#16 Comment By St Louisan On May 20, 2017 @ 4:21 am

“High crimes and misdemeanors” wasn’t intended to include only illegal conduct, but any gross violation of the Presidential oath of office. The debates in the Constitutional Convention, the Federalist Papers, and the precedents of the articles of impeachment drawn up against Andrew Johnson and Bill Clinton all bear this out.

#17 Comment By Adam On May 23, 2017 @ 4:14 pm

One man cannot bring down the United States, not even the President. A Coup can. Even if you dress the act up in quasi-legal clothing it makes it no less an act of treason. We’ve evidently moved past the Trump is Hitler phase and now we’re squarely in the Incompetence phase. Give it a few more months and we’ll be at the Well He’s Effective But I Still Don’t Like Him Phase. Maybe then we can get rid of these silly little Palace intrigue stories.