No, the 25th Amendment is not the solution.

Is Donald Trump Too Incapacitated to Be President? Not in This America.

Is Donald Trump Too Incapacitated to Be President? Not in This America.

Who's winning, who's losing, and why.
May 17 2017 6:17 PM

Is Donald Trump Too Incapacitated to Be President?

Not in this America.

Photo illustration by Natalie Matthews-Ramo. Photos by  Ron Sachs-Pool/Getty Images and Thinkstock.
The most practical problem with the 25th Amendment option is that it won’t happen.

Photo illustration by Natalie Matthews-Ramo. Photos by Ron Sachs-Pool/Getty Images and Thinkstock.

Ever since Donald Trump landed in the Oval Office, millions of us have been obsessing on how to get him out. For many, the question has been not just if, but how and how soon. Will impeachment happen? Could Trump simply admit defeat and stand down? Or could proving his mental incompetence to be president force his hand?

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

The last option has gained traction in the past few days, perhaps because it is increasingly obvious to anyone following the news that Congress has no stomach for impeachment, and also that the president is demonstrably not up to the job. Trump’s missteps have more frequently revealed themselves to be blunders of incompetence rather than blunders of malice (though they can often be both). It’s become standard for reports coming from the inside of the White House to acknowledge, slyly at first but now overtly, that Trump is in constant need of managing. He believes false reports and refuses to read truthful ones. He lashes out at anyone who hasn’t lied for him adequately. There are now entire reports devoted to his rage, his anger, his madness and his inability to accept responsibility.

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Thus, my mailbox is brimming with petitions and inquiries from the 25th Amendment Hopefuls; the folks who believe Trump’s recent behaviors might trigger Article 4 of the 25th Amendment, which provides that:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

An increasingly vocal pool of 25th Amendment aspirants have begun to contend it is in fact possible that the vice president and a majority of the Cabinet could simply notify Congress that the president is unable to “discharge the powers and duties of his office.” Even before the calamities of this past week, the idea gained traction following Evan Osnos’ expansive reporting in the New Yorker from early May on the possibility of the 25th Amendment as a vehicle for Trump’s removal. As Osnos explained, after the Kennedy assassination, the worry arose that a president could be incapacitated but not dead, and the Constitution afforded no remedy:

[T]he Twenty-fifth Amendment was added to the Constitution in February 1967. Under Section 4, a President can be removed if he is judged to be ‘unable to discharge the powers and duties of his office.’ The assessment can be made either by the Vice-President and a majority of the Cabinet secretaries or by a congressionally appointed body, such as a panel of medical experts. If the President objects—a theoretical crisis that scholars call “contested removal”—Congress has three weeks to debate and decide the issue. A two-thirds majority in each chamber is required to remove the President. There is no appeal.
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As Osnos goes on to detail, however, part of the reason the 25th Amendment has never been used to remove a sitting president is that the inquiry requires assessments of presidential incapacity and mental illness that mental health experts generally want no part of, and politicians are reluctant to engage in. Almost to a one, the constitutional experts I contacted about all this confirmed that removal under Article 4 of the 25th Amendment happens only in political thrillers because back here in the real world, there will never be the political will to do it.*

The most practical problem with the 25th Amendment option is that it won’t happen. The selfsame Cabinet and vice president tasked with assessing the president are still enabling him. That’s how you get lines like the closer of this New York Times’ piece assessing the president’s alleged blurting of classified intelligence reports to Russian officials: Three administration officials privately reported “that they could not publicly articulate their most compelling—and honest—defense of the president: that Mr. Trump, a hasty and indifferent reader of printed briefing materials, simply did not possess the interest or knowledge of the granular details of intelligence gathering to leak specific sources and methods of intelligence gathering that would do harm to United States allies.”

Put more simply, these officials know the president didn’t leak anything of deep and granular significance with respect to sources and methods because he doesn’t read or comprehend well enough to understand them. It’s the kind of detail that is worth its own story.

For the 25th Amendment aspirants, it’s also proof of the validity of their cause—after all, even the people on Trump’s side see his incompetence. Unfortunately, they also still work for him. They’re not going to fire him: They know he’s simply a useful stooge (though his level of usefulness depends on the time of day, they’re realizing).

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That’s the problem with tilting at the 25th Amendment windmill—the people who would need to trigger it won’t. Invoking it would not only require the moral backbone they clearly lack, it would also implicate the same people who benefit from Trump’s deficiencies. As Jennifer Rubin notes in the Washington Post, Donald Trump’s possible future mental health diagnosis is not the issue. His current mental state is, and the people who might do something about it spend every day defending it.

Moreover, so many of the Cabinet officials who might rightly affirm that Trump is unable to discharge his duties are similarly unable to discharge their own. Trump’s chief infirmity—the vanity, wealth, and self-regard that was mistakenly confused with effective leadership—is actually shared by the vast majority of his Cabinet, most of whom—in the manner of any individual Kardashian—seem to prize money and power more than they prize governance or democracy. For instance, it’s abundantly clear that neither Betsy DeVos nor Ben Carson are fit to execute their own Cabinet positions. Are they also to be summarily removed? Jeff Sessions has gone along with the worst of Trump’s plans, drafting the legal justification for the stalled-out Muslim ban. If we can see clearly enough to judge Trump unfit, surely Sessions is as well.

We already know that the people with the power to stop Trump—the Republicans in the House and Senate who declare themselves “troubled” and “concerned” by his actions—are so hell-bent on destroying the regulatory state, harming the weak, imposing Christianity on nonbelievers, and giving tax breaks to the wealthy that Trump’s fitness raises no alarms. Unfortunately, that isn’t a DSM-IV level diagnosable pathology. It’s what we call conservatism in America.

So it is essentially guaranteed that the 25th Amendment will not be invoked. And here’s the kicker: It shouldn’t be. Disturbing and shattering as it is that the president cannot read and understand classified security briefings, it does not make him mentally ill. It makes him exactly what many Americans voted for: an incurious self-obsessed man with a middling mind who happened to reach great heights thanks to a perfect storm of privilege, cheating and fame. He isn’t necessarily unfit or unwell, he is the same Donald Trump who won the Oval Office on the unspoken proposition that anyone could do it.

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But what of the genuine claims by genuine mental health experts that the president suffers from narcissistic personality disorder or dementia or some other diagnosable form of mental illness? Advocates of this theory point to his short attention span, his incapacity for empathy, his narcissism, and solipsism as evidence. Some mental health professionals agree—a group of psychologists at Yale recently meet to assess their obligation in warning of the president’s diminished mental capacity. But more and more I balk at my own deployment of the word “crazy” to describe him or his daily actions. It does violence to those who are genuinely mentally ill.

The most useful rebuttal of the idea that Trump’s problem is that he is ill comes from the leading expert on narcissistic personality disorder, the affliction most employed to categorize Trump’s deficiencies. In response to the chorus of suggestions, Allen Frances clarified in February in the New York Times why the president does not suffer from NPD. It’s pretty simple. “Trump causes severe distress, rather than experiencing it,” he wrote.

Assessments of Trump’s mental state since Frances’ record-straightening have thus struck upon the more provable cause of the president’s lack of ability: Trump is not mentally ill, per se, but he does seem to suffer from a curiously underdeveloped brain. The extreme privilege he has been afforded throughout his life have made it possible for him to function despite these deficiencies, but now, in the Oval Office, they’ve become impossible to mask. Earlier this week, in “When the World Is Led by a Child,” David Brooks argued that “at base, Trump is an infantalist.”

His fellow New York Times columnist Ross Douthat went further, agreeing the next day that this child brain is sufficient to trigger a constitutional remedy. In penning “The 25th Amendment Solution to Remove Trump,” Douthat carefully avoided calling Trump mentally ill, but instead stated that he is “seemingly deficient” in all the traits one needs to successfully execute the presidency. “Some he perhaps never had, others have presumably atrophied with age,” he suggested.

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What Douthat is acknowledging isn’t the kind of sudden onset mental incapacity or illness the drafters of the 25th Amendment feared. He is instead describing buyer’s remorse, for which there is, sadly, no constitutional or legal fix. This is a political problem, and given that we live in a democracy, it is for politics and not armchair diagnoses to remedy. That is why Jimmy Carter’s attempt to require a medical panel in any 25th Amendment determinations fell apart. It’s for Republican leadership to diagnose and treat Trump’s competency problems, not psychologists.

Finally there is this: Invoking the 25th Amendment undermines and devalues the seriousness of the genuine mental health crisis that the nation is currently facing. This solution presupposes that by deeming Trump mentally unfit to be president, the virus that allowed the GOP to put us into this situation would be isolated, contained and eliminated. It elides the fact that the virus itself has not only chosen to put him into office, but that now—faced with near-hourly evidence of incompetence—the virus continues to defend his presence there. It elides the fact that those who loved Trump are actually rejoicing in seeing him ritually perform all of the values on which he ran—his outsiderness, his contempt for compassion, institutions and expertise, his abhorrence of political correctness, and political solutions. It ignores that Trump’s self-satisfied Electoral College achievement actually reflected the triumph of that which a good part of America holds dear: the hollow fame, money, and power he embodies.

Putting Trump’s qualities that render him unfit for office into a category of pathology or medicalized diagnosis is not the way to solve the problem. Let’s stop calling it a disability and call it what it is: What we are now. That American exceptionalism came to be represented by fact-free-apology-free table-toppling melodrama instead of sane and sober governance means that Donald Trump isn’t the disease that plagues modern America, he’s the symptom. Arguing that ritual acting out of these qualities makes him too mentally infirm to execute the office of the president only allows him to become the ultimate victim of his own toxic reality show. It would also allow the people who might theoretically gather together to oust him to absolve themselves for their complicity in colluding with and covering for him. Removing Trump from office on a mental health pretext will not fix America—it will merely allow the people who put him there to receive accolades for having finally done the right thing.

Instead of waiting around for the Impeachment Fairy to leave a new president under our pillows or for her cousin, the Incapacity Gnome, to remove a man who is precisely as sick as America needed him to be, the millions of people who find Trump terrifyingly unfit and unwell need to work on political solutions: on gerrymandered districts, voter suppression, infighting, cynicism, and messaging. That isn’t the stuff of the 25th Amendment but it is very much the project of constitutional democracy. For Democrats to sit around and hope that Trump’s own Cabinet or large majorities in Congress might decide that today’s presidential incompetence will be the straw that breaks that camel’s back? That’s magical thinking, reality-show thinking. And as much as this current presidency has made the office resemble one, quick fixes won’t get us anywhere. Donald Trump wasn’t too incapacitated to win the presidency. That is the problem we need to fix.

*Update, May 17, 2017, 7:35 p.m. EDT: This sentence was updated to clarify the language of removing the president under the 25th Amendment. 

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