It was a stunning moment. A highly placed Deep State operative told the truth.
The 25th enables the vice president and Cabinet to remove the president if they judge him incapable of doing his job, which is what McCabe, Rosenstein, and others were, apparently, prepared to argue, presumably because Trump is “mentally ill.” Why they would tread this rocky constitutional path is something of a mystery. After all, Trump might have obstructed justice when he fired FBI chieftain James Comey, McCabe suggested, to block the FBI’s probe into the president’s “collusion” with Russia to win the presidency. That would be an impeachable offense, as would something else McCabe suggested: that Trump was a Russian agent.
Yet as far-fetched as invoking the 25th Amendment would seem, a few politicians quickly suggested McCabe was right. Presidential candidate Elizabeth Warren, the senator from Massachusetts who lied for 35 years about being an Indian, said somewhat paraliptically that administration officials must remove Trump if they think he cannot do his job.
“My point here is that if they believe that Donald Trump cannot fulfill the obligations of his office, then they have a constitutional responsibility to invoke the 25th amendment,” she said. “Their loyalty under law is not to him personally. It is to the Constitution of the United States and to the people of United States.”
Representative Eric Swalwell of California agreed, and President George W. Bush’s former ethics attorney, Richard Painter, declared that Trump is mentally ill. “The president is not well at all mentally. I think he’s an extreme narcissist,” Painter said three days after Trump declared a national emergency to build a wall. “It’s unconstitutional. It’s illegal,” fumed Painter, who added: “He is going to do enormous damage to the Republican Party which is going to split right down the middle over this, and we really need to keep in mind that this is because the president is not well.”
Painter is entitled to his opinion, but opinions are like noses. We all have one. His opinion of Trump’s mental health is of no more import than the opinion of a MAGA hat-wearing crane operator. Painter is a lawyer, not a psychiatrist.
Not that many in the skull-doctoring trade don’t have their opinions of Trump. More than a few concur with the amateur’s diagnosis. Trump is crazy, they say, and must be removed with the 25th.
Indeed, the smart set has discussed taking down Trump with the 25th almost as long as it has discussed impeachment, which began before he was elected. McCabe’s admissions concern discussions with Rosenstein in 2017, and other officials had the same idea.
“Given the instability many witnessed,” he — or she — wrote, “there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president. But no one wanted to precipitate a constitutional crisis. So we will do what we can to steer the administration in the right direction until — one way or another — it’s over.”
Whoever that resistance member was, he — or she — was right about one thing. A move against Trump with the 25th would precipitate a crisis. That is because the 25th, again, provides detailed directions and requires a particular reason for removing a president. Its history and language show it is intended to enable the president’s removal when the president is incapacitated mentally or physically.
Running through the amendment from beginning to end, we find that Section 1 says: “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” That covered the elevation of Gerald Ford to the presidency when President Nixon resigned. Section 2 says the president nominates a new vice president, whom a majority of the whole Congress must approve, when that office becomes vacant. That covered Ford’s elevation from Congress to the vice presidency when Vice President Spiro Agnew resigned, and Ford’s selection of Nelson Rockefeller as vice president.
Section 3 permits the president, if unable to do his job, to transfer his powers temporarily to the vice president but resume them when ready. The president might use this provision if he required anesthesia for a medical procedure.
And the final provision, Section 4, is the applicable codicil of the amendment vis-à-vis Trump, i.e., that Trump is unable to discharge his duties because he’s mad as a March hare:
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.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Note that Section 4 requires not only a majority of Cabinet members but also the vice president to judge the president incapable of doing his job. And even if they declare him unable to do so, he can challenge their decision and force a vote of the full Congress.
So in Trump’s case, even if what McCabe says is true — that the deputy attorney general was counting heads — invoking the 25th Amendment was a nonstarter without the cooperation of Vice President Mike Pence.
Dershowitz: It Was a Coup Attempt
But more important than that was what McCabe’s confession meant. Leftist lawyer Alan Dershowitz explained it for Fox talker Tucker Carlson. The discussions at the FBI were, for all intents and purposes, tantamount to treason, an “attempted coup d’état.”
“Let’s assume the president of the United States was in bed with the Russians, committed treason, committed obstruction of justice. The 25th Amendment simply is irrelevant to that,” Dershowitz explained. “That’s why you have an impeachment provision.”
On that note, again, McCabe alleged just such an impeachable offense: Trump’s attempt to quash the investigation of Russian “collusion,” not least by firing FBI Director James Comey.
Whether McCabe and his cabal discussed impeachment he didn’t say, but at any rate Dershowitz explained what the 25th is for. “The 25th amendment is about Woodrow Wilson having a stroke,” he said. “It’s about a president being shot and not being able to perform his office. It’s not about the most fundamental disagreements. It’s not about impeachable offenses.”
McCabe and the boys at the FBI, Dershowitz said, shouldn’t even have discussed the 25th:
And any Justice Department official who even mentioned the 25th amendment in the context of President Trump has committed a grievous offense against the Constitution. The framers of the 25th Amendment had in mind something very specific, and trying to use the 25th amendment to circumvent the impeachment provisions or to circumvent an election is a despicable act of unconstitutional power-grabbing….
And the 25th Amendment is as clear as could be. Incapacity. Unable to perform office. That’s what you need. That’s why you need two-thirds of the House and two-thirds of the Senate agreeing. And it has to be on the basis of a medical or psychological incapacity. Not on the basis of even the most extreme crimes. Which there’s no evidence were committed.
But even if they were, that would not be a basis for invoking the 25th Amendment…. It’s an attack on our system. It’s an attack on our -Constitution.
Indeed it would be, as two writers for Politico argued after the administration’s sneaky “Resistance” mole surfaced to graze the verdant editorial pasture of the Times. Writing for the webzine in 2018, analyst Rebecca Lubot and Professor David Greenberg detailed the reasons Congress passed and the states ratified the 25th. The Constitution was unclear about the line of succession should a president be unable to do his job. What, for example, would have happened if Eisenhower, like Wilson, had suffered an incapacitating stroke? Or if JFK had not quickly succumbed? Agreements were in place for Ike and JFK to transfer power to their vice presidents. But the Constitution was silent.
Wrote Lubot and Greenberg:
In a 1992 book, The President Has Been Shot, physician Herbert L. Abrams examined the situations in which the amendment’s framers intended for Sections 3 and 4 to be invoked. Section 3 — the temporary transfer of power — applied, in his judgment, during “planned, major surgery,” other surgery requiring general anesthesia, and “the use of psychoactive drugs in significant amounts.” It could also be invoked, he said, in the event of “serious presidential illness”; “the diagnosis of Alzheimer’s disease or of any other progressive, mentally disabling conditions”; if the president or his physician believed “that an illness, injury, or emotional condition is interfering with his judgment or ability to govern”; or during “any anticipated situations in which the president will be unable to communicate with his government,” such as a nuclear strike.
As for Section 4, Abrams said its use was more “complicated and delicate.” It applied during such serious situations as “loss of consciousness,” “significant alterations of the president’s cognitive faculties or inability to communicate,” “serious injury to the president following an accident or attack on his person,” “terminal illness,” and “progressive, mentally disabling conditions.”
That last passage, however, is precisely what Trump’s opponents have argued, particularly those in the psychiatric profession. The president, they aver, is nuts.
John Gartner, a psychologist at Johns Hopkins University, created a Facebook group called Duty To Warn on election day 2016 that still pushes the Trump-is-crazy narrative. Then he launched a petition at Change.org in 2017 that said Trump has “a serious mental illness that renders him psychologically incapable of competently discharging the duties of President of the United States.” Gartner, a hard leftist who supports Kamala Harris for president, his Facebook page shows, wrote likewise in USA Today. He also contributed to the book The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President. Gartner “diagnoses” the president with “malignant narcissism,” and Duty To Warn declares Trump “the American Hitler lite” because the president “shares the same diagnosis” as Der Führer. And, Gartner contends, “Trump is in a state of predementia.”
More than 70,000 people signed on to Gartner’s petition. Gartner, though, might be more narcissistic than Trump. He brazenly violated the Goldwater Rule, the American Psychiatric Association’s mandate that, as an ethical matter, a mental health professional must not diagnose a public official or candidate whom he has not examined. APA wrote the rule after a magazine claimed that more than 1,000 psychiatrists said Senator Barry Goldwater was crazy — just like Trump. That claim ended in a successful defamation claim for Goldwater.
Gartner’s critics in the field weren’t all that happy with his “diagnosis.” Psychologist Steven Berglas told Psychology Today that Gartner’s silly petition is a “temper tantrum” rooted in his political disagreement with Trump. An expert in narcissism, Berglas said the president’s behavior might well be “choreographed.” Maybe, he said, Trump is “throwing paint balls at the wall, creating chaos so that he can dial it down later to get what he wants.” Too, said Berglas, “Many effective leaders are narcissists.”
Another critic (one who doesn’t like Trump) essentially agreed. Trump, he said, is “evil” and “incompetent.” But “his fitness for office should be addressed politically.”
Lubot and Greenberg, whose piece in Politico appeared after Gartner began his campaign agreed, saying, “Trump has an extreme personality, with many negative qualities.” And “some might judge him to be a grandiose narcissist or even a pathological liar. But having a personality disorder or even certain forms of mental illness doesn’t necessarily render a president unfit to govern (Lincoln suffered from depression).”
Thus, contrary to what McCabe, Rosenstein, or any of the headshrinkers think, Lubot and Greenberg wrote, “Trump is not ‘unable’ to serve as president, as would be required to invoke the 25th Amendment.” They continued:
He is actually a high-achieving, high-functioning person who has excelled in business, entertainment and now politics. He hasn’t suffered from a crippling stroke, a psychotic break or dementia. He is, we would argue, temperamentally unsuited to be president — but that is a reason to vote against him, not to resort to a never-used clause in a constitutional amendment. If Cabinet officers tried to use Section 4, Trump would surely challenge them in court and in the court of public opinion — setting up a constitutional crisis that would make the Clinton impeachment and Bush v. Gore look like schoolyard spats.
And that is precisely why Dershowitz so quickly lambasted McCabe and called the idea of using the 25th Amendment to remove Trump a coup. It would be an unconstitutional arrogation of power that could end in a crisis and lengthy court battle.
Beyond that, what Gartner and his supporters seem to be suggesting is something much more sinister: Vigorous or even intemperate disagreement with progressive policy goals is a sign of mental illness. The Left has been pushing that idea for years. Psychology Today has published at least three articles suggesting that conservatives are mentally ill, one of which pondered the question, “Is Political Conservatism a Mild Form of Insanity?” If so, then conservatives must be excluded from public office and any other responsible position, and very possibly incarcerated for “treatment.” Such was the fate of dissidents in the Soviet Union, where dissent was, of course, criminalized and a cause for “psychiatric treatment.” Considering the Left’s success in creating laws criminalizing “hate speech” and mandating enhanced penalties for crimes motivated by “hate,” the criminalization of dissent by “progressive” bright lights such as Gartner might not be far in the future.
Gartner, by the way, has a habit of “diagnosing” those with whom he disagrees. It’s one thing to diagnose a long-dead genocidal tyrant. It’s another to smear a sitting president and his appointees. On Facebook, Gartner wrote that “the real Brett Kavanaugh is a stone cold psychopathic Republican political operative.” That hysterical execration came not, of course, from any real analysis of the Supreme Court justice or his judicial career, but from the reminiscences of David Brock, to which Gartner linked on his Facebook page. Brock is a notorious homosexual and former conservative who became a cultural Marxist torpedo for subversive billionaire and confessed Nazi collaborator George Soros.
The deranged musings of Gartner and his apostles on their Facebook pages unmask their real problem with Trump. He isn’t crazy. They just hate him. And thus, he must be removed.
Doomed to Fail
The psychiatric profession’s Trump derangement and unhinged loathing of conservatives and Republicans aside, unhorsing Trump with the lance of the 25th Amendment will fail. As a practical matter, persuading a majority of the Cabinet, one of whom is renowned neurosurgeon Ben Carson, and the vice president to stage an administrative coup won’t happen.
As well, Section 4 again permits the president to challenge an effort to remove him:
When the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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.
Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
In other words, if Pence and the Cabinet declare Trump non compos mentis and vote to remove him, the Constitution doesn’t say he must pack his bags and head back to New York. He can, and would, dispute any such claim of his inability. Then Pence and the Cabinet must provide a second written declaration to the House and Senate and after that, two-thirds of both chambers must vote to remove him.
Short of someone leaking video of Trump in rug-chewing tantrums such as those ascribed to Austria’s most storied corporal, Adolf Hitler, whatever the Deep State tries, Trump will finish his first term. And if the Democratic Party’s Trump derangement and Gadarene rush to crackpot totalitarian socialism continue, he’ll win a second.
Photo credit: AP Images
