Removing Trump via the 25th Amendment Is a Bad Idea

By Charles C. W. Cooke

Saturday, May 20, 2017

In the New York Times on Wednesday, Ross Douthat used his customarily eloquent voice to endorse an idea that has bubbled below the surface since the latest round of crises began to rock the White House: The 25th Amendment to the Constitution, Douthat proposed, should be used to remove the president from office.

In Douthat’s estimation, such a move is necessary because of Trump’s “incapacity to really govern, to truly execute the duties that fall to him to carry out.” In fact, Douthat considers that it is inaction that presents the greater risk. “Leaving a man this witless and unmastered in an office with these powers and responsibilities,” he writes, “is an act of gross negligence,” for Trump, at root, is a “child.”

That President Trump is a peculiarity is, alas, beyond doubt. But even if one were to sign on completely to Douthat’s devastating characterization — and I’m not averse to doing so — there would remain a crucial difference between the best diagnosis and the best remedy. It is possible that we are in for a bumpy few years under the stewardship of this administration; it is possible that we are in for worse. It is also possible — if not guaranteed — that to stage a legalized coup would be extremely unwise. And at no point in his essay does Douthat seriously grapple with that possibility.

The 25th Amendment was intended to do two things. First, to clarify the line of succession in the event that a president is killed or incapacitated. Second, to allow for the “immediate” transfer of power to the vice president in such a case as the incumbent is “unable to discharge the powers and duties of his office.” In both its text and its original public meaning, the amendment was designed to deal with a situation such as Woodrow Wilson’s stroke or the assassination of John F. Kennedy; it was not designed to kneecap the ill-tempered or the incompetent. Should it be used to do just that, a terrible precedent would be established.

Douthat’s essential contention is that desperate times call for desperate measures. But there would be no more effective way of rendering our times more desperate than they already are than to go down this rocky road. President Trump came into office on the back of a vehemently populist wave, the central conceit of which was that the United States has long been despoiled by arrogant, out-of-touch elites who get their own way regardless of the people’s will. What do we imagine would happen to these suspicions should a cabinet full of the rich and well-connected contrive to strip the president of his powers on the nebulous grounds that he is “witless”? It is just not Donald Trump who says system is “rigged.” So does Bernie Sanders. So does Elizabeth Warren. There are forces at play here that would be better off respected.

This is not, of course, to suggest that President Trump should consider himself politically immortal; if, as seems possible, he has committed a provable crime, impeachment must remain on the table. But let us not convince ourselves that this is analogous to what Douthat has seen fit to propose. Impeachment is driven by Congress, and is thus both more transparent and more democratic. The 25th Amendment option, by unlovely contrast, would constitute a sanitized palace coup. Moreover, while the charges in an impeachment can in theory be anything at all, any successful attempt at removal would need to be assiduously argued and built upon evidentiary concrete. The more misty charge of “unfitness for office” would not.

What, after all, constitutes “unfitness”? Who decides who is “fit”? And what should we think of the cabinet members who, in deposing Trump, would change their minds on the question in an instant? For the president to be removed on the grounds that he was “childish,” both Trump’s inner circle and the party that campaigned for him would have to make that unpleasant case, and to do so while a fully conscious Trump had a public right of reply. In such a circumstance, voters would reasonably inquire as to what had changed since November, and they would likely be backed up by a Congress that would still be required to arbitrate. The 25th Amendment is long and unwieldy, but it says nothing whatsoever about approval ratings.

Since the January inauguration, critics of this president have grown progressively hyperbolic. Time and time again, we have heard words that did not fit their context — words that did serious damage to our already battered discourse. Trump, it has been said, is an “autocrat,” a “fascist,” and an “enemy of democracy.” He has even been guilty of a “coup” of his own. Are these same voices going to look his voters squarely in the eye and tell them that they back an eviction? If they are, I would advise them to meet some of those they will vex before they so peremptorily pull out the rug. America is an angry, partisan, resentful place at present, and the ballot box is one of our most effective release valves. Should its utility come to be questioned by the electorate, we will see a desperate backlash of the sort we have not seen in a long while. And this time, it might not be peaceful.