By John Yoo & Robert J. Delahunty
Tuesday, December 31, 2024
A major report in the Wall Street Journal has
revealed that the White House staff concealed Joe Biden’s deteriorating mental
condition, perhaps for the entirety of his presidency. Democratic leaders,
including Vice President Kamala Harris and former House speaker Nancy Pelosi,
appear to have enabled this deception with the collaboration of the mainstream media.
Congress can begin the task of rebuilding Americans’
faith in the institution of the presidency by investigating and holding
hearings on the extent of this cover-up. It should involve inquiry into Biden’s
true physical and mental condition during his term in office, the discussions
and actions of the White House staff, and their communications with the
cabinet, congressional leaders, and party officials.
Biden aides will no doubt resist such an investigation.
But Congress has more than ample grounds, not just in conducting oversight, but
in considering whether to propose changes to the 25th Amendment, which would
have made Kamala Harris the “acting president” in the event of Biden’s
disability. It would then be up to President Donald Trump whether to waive the
right of Biden’s staff to claim executive privilege. If they still refuse to
appear before Congress, a Republican Congress could hold Biden’s aides in
contempt, and Trump’s Justice Department could prosecute them in federal court.
The possibly extreme harm to the nation from Biden’s
disability justifies such serious measures. Biden’s declining mental condition
may have had dire consequences. It has deprived the country of a fully
functioning chief executive and has created a serious risk to national
security. In his four years in office, Biden held only nine cabinet meetings
(as compared with 25 for Trump). White House aides secretly rescheduled
national security briefings if Biden was having a “bad day.” Did the national
security staff declare a “bad day” when Biden ordered American troops to beat a
disgraceful retreat in Kabul, or when he tried to stop Israel’s campaigns in
Gaza, Lebanon, and Iran? Despite the wars in Ukraine and the Middle East, Biden
scarcely met Secretary of Defense Lloyd Austin. Last January, special counsel
Robert Hur, investigating Biden’s security breaches before he became president,
found that he had “willfully” kept classified documents at his Delaware home
but declined to charge the president because jurors would view him only as a
“well-meaning, elderly man with a poor memory.”
Even in the face of abundant evidence of Biden’s mental
decline, only his performance at his June 2024 debate with Trump forced the
Democratic Party — with an assist from the liberal commentariat — to
acknowledge his condition and replace him on the national ticket. Ironically,
leading Democrats and their media satellites had demanded that Vice President
Mike Pence and the cabinet remove Trump under the 25th Amendment for his
alleged mental instability. Nancy Pelosi and Chuck Schumer (then Senate minority
leader) remained silent for years, however, about Biden’s fitness. Pelosi,
along with House Democrat Jamie Raskin, had even proposed a bill to create a
bipartisan commission to determine whether a sitting president could no longer
carry out his duties.
There need to be severe consequences for this concerted
effort to suppress the public’s knowledge of Biden’s cognitive deficits. An
investigation recognizes the modern stakes for the nation of the office’s
holder. The Constitution centralizes all of the federal government’s executive
power — primarily protecting the nation’s security and enforcing the law — in
the president in order to take advantage of the qualities of a single man. A
single president enjoys a unity in his office that allows him to act with
“decision, activity, secrecy, and dispatch,” in contrast to the paralysis of
co-executives or of a committee. But place the presidency in feeble hands, and
those positives become negatives. With a passive president, the government will
be slow to rise to challenges, to execute the law with justice, and to protect
the nation effectively. The new Congress must hold hearings to investigate
those who were responsible for concealing a crippling defect at the very heart
of the executive branch. An investigation will expose their actions to the
American people while Congress can consider whether to propose legal reforms,
including a constitutional amendment modifying the 25th Amendment.
The 25th Amendment
Section 4 of the 25th Amendment provides a constitutional
mechanism to replace a president who has become disabled. The section has never
been used. There are strong arguments, however, that Vice President Harris, the
cabinet, and Congress should have invoked it for Biden.
The 25th Amendment was ratified in 1967 and serves
several purposes. It creates a procedure for transferring the authority of a
disabled president to the vice president. Section 4 authorizes the vice
president and a majority of the “principal officers of the executive
departments” (understood to mean the cabinet) to submit a written declaration
to Congress “that the President is unable to discharge the powers and duties of
his office.” As an alternative to the cabinet, Congress may “by law” provide
that some “other body” can join the vice president in submitting such a
declaration. Both procedures require that the vice president agree to the
finding of presidential disability.
Once the declaration has been submitted, the 25th
Amendment declares that “the Vice President shall immediately assume the powers
and duties of the office as Acting President.” But the replacement remains
temporary. The president can unilaterally declare that his disability is ended.
He “shall resume” his office unless (a) the vice president and a majority of
the cabinet again declare that the president remains disabled, and (b) both the
House and Senate affirm the continued disability by two-thirds vote.
The original 1787 Constitution included a presidential
succession clause — article II, section 1, clause 6 — that had provided that
the vice president was to exercise the powers and duties of the president in
the event of the latter’s “Removal from Office, or of his Death, Resignation,
or Inability to discharge” his responsibilities. The Constitution, however,
failed to define the term “Inability” (elsewhere styled “Disability”) and
remained silent on who was to decide. At the Philadelphia Convention, John Dickinson
of Delaware asked the drafters of the Constitution: “What is the extent of the
term ‘disability’ and who is to be a judge of it?”
At least two presidents — James Garfield and Woodrow
Wilson — have been incapacitated for long periods and unable to perform their
duties. Nevertheless, these original flaws remained until 1967. The atomic age
demonstrated the need for a mechanism to address presidential disability.
President Dwight Eisenhower’s heart condition had required him to hand off his
duties temporarily to Vice President Richard Nixon. While pragmatic, these
improvised arrangements were of constitutional questionability. The assassination
of President John Kennedy in 1963 provided a further catalyst to action. The
result was the ratification of the 25th Amendment in 1967.
Section 4 makes the vice president the indispensable
actor in transferring power from a disabled president. Congress and the states
agreed on the vice presidential role despite the apparent conflict of interest
she might have in succeeding to the presidency. There are, however, several
features of the vice presidency that were thought to mitigate that conflict.
The vice president typically has a close working and even personal relationship
with the president and can observe him often and closely. They are members of
the same political party. While the vice president may be likely to be that
party’s nominee after the current president, the requirement of support from
the cabinet — presidential appointees and, likely, loyalists — can check an
unjustified move to oust a sitting president.
Potential Flaws in Current Arrangements
Although Congress carefully debated the proposed 25th
Amendment in the 1960s and balanced the competing concerns judiciously, the
country’s experience with the Biden presidency suggests that the procedure may
be flawed. The staff and cabinet members surrounding a president had an
incentive to conceal obvious and worsening cognitive capacities. Those who
observed him regularly and controlled access to him engaged in secret efforts
to keep the president in office for too long. Congress should hold hearings to
determine whether to employ its existing power under Section 4 to create a
Disability Review Board or even whether to modify Section 4 with a new
constitutional amendment.
Like the original Constitution, Section 4 leaves
presidential “inability” undefined. The ratification history of Section 4
suggests that the standard is very high — so high that it might well not have
applied even to Biden. The leading architect of Section 4, Senator Birch Bayh,
explained that the relevant terms “which refer to an impairment of the
President’s faculties, mean that he is unable either to make or communicate his
decisions of his own competency to execute the powers and duties of his office.”
A leading framer of the amendment in the House, Representative Richard Poff,
cited two cases in which Section 4 would apply: The first was one when “the
President by reason of some physical ailment or some accident is unconscious or
paralyzed,” and the second “is the case when the President, by reason of mental
debility, is unable or unwilling to make any rational decision, including
particularly the decision to stand aside.” The new Congress should consider
adding a definition of disability, with special focus on mental decline or
emotional instability.
Another arguable flaw — which could be addressed by
congressional action without need for a new constitutional amendment — arises
from the role of the cabinet. If a president senses a mutiny brewing among his
cabinet officers, he could summarily fire the suspected mutineers and thus
abort the plan to oust him. Another flaw, highlighted by the Biden experience,
is that an ailing president may be secluded by his staff and thus meet with his
cabinet infrequently or not at all. Without the opportunity to observe the
president in action, cabinet officials may be reluctant to join any effort to
declare him unable to serve.
Congressional Hearings Are Needed
If Congress, after holding hearings, determines that
reliance on the cabinet in this sensitive situation is bad policy, it could
invoke its existing power under Section 4 to create a Disability Review Board.
The section provides that this may be done by an Act of Congress, rather than
by the mere action of one or both Houses. Congress could consider whether to
pursue that course, and how to structure such a body. One danger to be
considered is that Congress might exercise its power in a way that disturbs traditional
separation-of-powers principles by, for example, staffing the board with its
own members or giving them a dominant role in its decision-making.
Hearings would create the necessary record to judge the
conduct of Biden’s aides — and, by contrast, those of Trump in his first term.
Starting with Vice President Harris and Biden’s cabinet, and then proceeding
through his White House advisers, Congress should find “what they knew and when
they knew it.” Congress can discover why they chose to conceal the facts or lie
about them. Once out of office, Biden could no longer claim “executive
privilege” to bar their testimony: Under a D.C. Circuit precedent that Biden
himself sought (and that the Supreme Court declined to review) a former
president cannot assert executive privilege to bar a demand for information by
Congress. Trump therefore could override any executive privilege sought by
Biden. Trump could also offer his own cabinet members from the first term to
testify as to why they — along with then-vice president Pence — did not invoke
Section 4 when Pelosi, Schumer, and Raskin were demanding it.
Such hearings would have a profoundly educational effect.
The American people would learn the names and purposes of those who misled them
for four years and even continued the deception this year. They would also
learn the potential inadequacies of our existing legal and constitutional
arrangements for transferring power from a president who was no longer able to
exercise it, and to develop better procedures in their place. Most important,
the American people could begin the process of repairing a dangerous flaw in
the office of the presidency and our constitutional order.
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