I have previously written about the reckless claims of commentators and congressmen for the impeachment or removal of President Donald Trump. Some based these calls on tweets posted by Trump, including comments on the NFL protests. When calls for impeachment began to wane, many turned to the 25th Amendment. Now, the former ethics lawyer to President George W. Bush Richard Painter has declared that Trump can be removed on the basis for removal under the 25th Amendment — a dangerous and unsupportable interpretation of the constitutional standard.
Trump osted a tweet that was rightfully denounced as bizarre and unpresidential. Trump tweeted “North Korean Leader Kim Jong Un just stated that the ‘Nuclear Button is on his desk at all times. Will someone from his depleted and food starved regime please inform him that I too have a Nuclear Button, but it is a much bigger & more powerful one than his, and my Button works!”
For many, it seemed like a form of Freudian button envy. However, Painter believes that a tweet viewed as juvenile is sufficient to allow members of Congress to remove a president from office. Painted issued his own tweet stating “Two psychologically unfit men crowing about their nukes. This is not a good way to start the New Year. Congress needs to deal with one of them and the UN Security Council needs to deal with the other.”
Painter has previously declared the 25th Amendment satisfied. As I have previously stated, Trump’s conduct may be offensive or objectionable but it falls well short of Section 4’s provision the removal from power. There are essentially, two avenues for dragging a president from the Oval Office. First, there is the mutiny option. A vice president and a majority of the Cabinet can agree that the president is “unable to discharge the powers and duties of his office” and notify Congress that the vice president intends to take over. If Vice President Pence could get eight Cabinet officers to sign a letter to that effect, he would immediately become the “Acting President.” But if the president then declares to Congress that “no inability exists,” Trump could resume his powers.
The second option under Section 4 is a decision to remove the president could be made, alternatively, by “such other body as Congress may by law provide.” This is the course Rep. Jamie Raskin (D-MD) has sought with proposed legislation to create an “Oversight Commission on Presidential Capacity”—a body to decide if the president is physically and mentally fit. However, not only would this require a GOP controlled Congress to implement, it would still require the vice president’s assent.
More importantly, the Constitution only requires Trump to be able to discharge his duties; not necessarily to discharge them well. The fact is that Trump exhibited most of the traits he exhibits today during his campaign and his long business and television careers.
I have repeatedly criticized the President for his tweets and oft-hand comments, particularly about pending litigation. Obviously, my renewed suggestion of a New Year’s resolution to remove or eliminate these tweets has clearly gone unfulfilled. No surprise there. However, if the President’s tweets are increasing the tensions in this standoff, Painter’s tweet is also dangerous in lowering the standard for removal of a president. There is no constitutional license to remove Presidents under the 25th Amendment for comments deemed boorish or juvenile or inappropriate. Dressing up an unconstitutional removal in the language of the 25th Amendment does not change the character or inappropriateness of the effort.