Trump, the 25th Amendment and The Demise of “The Goldwater Rule”

After years of quiet existence, the 25th Amendment is suddenly all the rage. In many ways, it is not surprising. The 25th Amendment would seem like an ideal fit in our age of rage. Rather than find the still elusive “high crimes and misdemeanors” against President Trump for impeachment, many demand that he simply be declared as mentally ill and thus unfit to hold office. This growing “25 and over” club has rallied around the amendment as a way to prematurely bring an end to the Trump administration. However, this argument ignores not simply the language but the implications of such a removal. A declaration of Trump as unfit on these facts would set a dangerous precedent, not just in constitutional law, but areas like health care. Indeed, the failure of politicians and advocates to even acknowledge such implications of their 25th amendment campaign can only be described as mania itself.

At the outset, it is important to note that the removal of Trump under Section 4 of the 25th Amendment is just about as likely as his election to the College of Cardinals. Such action would require the support of Vice President Mike Pence. Even if he were inclined to Trump’s “et tu Pencus” moment, Pence would have to be joined by a majority of the cabinet to just get the matter before Congress. If Trump objected, which would seem likely, Pence would have to secure a second declaration with the cabinet and then secure a two-thirds vote from not one but both houses. An alternative course using a congressional commission requires the same vote and the cooperation of Pence.

The concern is not that such an effort would succeed but that so many are willing to discard any ethical or constitutional concerns in pursuing a 25th Amendment removal. The use of alleged mental unfitness is a common avenue for attacking one’s opponents in authoritarian countries like Iran, Russia and China. It is also nothing new in the area of presidential politics. The most serious such abuse occurred in 1964 when Republican Senator Barry Goldwater of Arizona ran against Lyndon Johnson.With the help of the media, Goldwater was portrayed as a war monger hell bent on nuclear war, a claim powerfully depicted in the “daisy countdown” commercial showing a child counting down to an atomic explosion with flower petals. Such commercials, however, were not enough for Fact Magazine, which decided to issue a special hit job on Goldwater. The magazine sent out 12,356 letters to psychiatrists asking if they thought Goldwater was mentally ill. Only 2,417 responded, but a majority of those responding stated categorically that Goldwater was unfit due to mental illness, a manifestly unethical conclusion reached without evaluating Goldwater personally.

Goldwater was diagnosed as a “megalomaniac,” paranoid,” “grossly psychotic,” and, in what is now being raised against Trump, someone suffering from “narcissistic personality disorder.” Some doctors reached incredible insights into a man who they never spoke to, including one who said that “inwardly a frightened person who sees himself as weak and threatened by strong virile power around him.” That is all the magazine needed to proclaim across the front page, “Fact: 1,189 psychiatrists say Goldwater is psychologically unfit to be president!” Goldwater lost by a landslide, despite the fact that there is no evidence that he actually suffered from such mental illness. In response, the American Psychiatric Association adopted the “Goldwater Rule” to bar doctors from making such unethical diagnoses of individuals without evaluating them. It appears that ethics, like constitutional principles, are more often honored in the breach in both politics and psychology.

Faced with unpopular president, various mental health professionals have publicly declared Trump to be mentally unfit. One group, Duty to Warn, recently marched in Washington, D.C., to call for a 25th Amendment removal on the grounds that Trump “suffers from an incurable malignant narcissism that makes him incapable of carrying out his presidential duties and poses a danger to the nation.” Of course, if we actually removed narcissists from Washington, the empty streets and cafes would look like a scene from a 1950s post-apocalyptic movie. Narcissistic personality disorder is defined as “grandiosity, a lack of empathy for other people, and a need for admiration. People with this condition are frequently described as arrogant, self centered, manipulative and demanding.” Sound familiar? The question in Washington is not who fits that definition, but who does not.

There is no evidence that Trump is mentally ill. However, if he did suffer from narcissism, it would pale in comparison to prior presidents, including some of our most celebrated. Various presidents suffered from depression and other mental ailments. Indeed, one study of the first 37 presidents found evidence that half of them exhibited signs of mental illness. Presidents like Thomas Jefferson and Abraham Lincoln exhibited symptoms of clinical depression. Dwight Eisenhower was formally diagnosed with depression. Teddy Roosevelt and Lyndon Johnson, the very president responsible for the Goldwater “countdown” ad, are viewed by some experts as bipolar. Calvin Coolidge could barely function after the death of his son and would have angry and unstable outbursts. Edith Wilson effectively took over the presidency for Woodrow Wilson.

John Kennedy not only suffered from severe physical ailments, but he took a cocktail of drugs that would have made Michael Jackson gasp. Prescribed by a doctor later known as “Dr. Feelgood” for his liberal dispensing of narcotics, Kennedy regularly took both uppers such as amphetamines and downers such as phenobarbital, as well as a mix of pain killers, sleeping pills, testosterone and cortisone shots. From John Tyler to Donald Trump, the critics have challenged the legitimacy of unpopular presidents to serve as a convenient alternative to elections. However, many of us had hoped that we had transcended such stereotypes of mental illness. The vast majority of mental illnesses are treatable, and people can have successful personal and professional lives under treatment.

Indeed, in O’Connor v. Davidson in 1977, the Supreme Court ordered the deinstitutionalization of thousands of citizens who were wrongly deemed incapable or unfit to live in society. For that reason, the American Disability Act generally prohibits discrimination against those who suffer from mental illnesses absent narrowly defined exceptions. Many of us in teaching have strived for years to assure students that they can be open about depression and other illnesses without fear of professional repercussions. Some of our most famous lawyers, judges, reporters and others have diagnosed mental illness. One in five people in the United States suffer from some form mental illness.

Even if Trump were a narcissist, it would not constitute the suggested prima facie case for removal under the 25th Amendment, which requires a showing that a president is “unable to discharge the powers and duties of his office.” The standard is not whether he is discharging those powers well but whether he is capable of discharging them. None of this will quell the “25 and over” club in desperately seeking an end to the Trump administration. However, the increasing call for a Section 4 removal under the 25th Amendment is what these same pseudo-psychiatrists might call a collective “mood congruent delusion,” a condition reflecting the manic mood of critics drawn out by every new Trump tweet.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.