MSNBC commentator Mike Barnicle this week called for the removal of President Donald Trump under the 25th Amendment for his bizarre suggestion that disinfectants might be injected into patients to clean their blood in minutes. Many of us criticized the President for the comments and found his later claim to have been speaking “sarcastically” to a reporter as clearly untrue. Trump later suspended further briefings, which have served as a critical avenue for information from task force members like Dr. Fauci and Dr. Birx. Yet, despite my respect for Barnicle, it is important to be clear about what is a constitutional versus a political matter. As I have previously written (here and here) and publicly discussed, the 25th Amendment was not designed and will not address this type of controversy.
Barnicle stated the view of many over the comments on the use of disinfectant, but suddenly took a constitutional turn:
“In a rational, political world, of which we are not part, we’re no longer a part of that, there is no longer a rational political world around us, I’ll tell you what might be on their minds: the 25th Amendment. Because yesterday, the president of the United States actually posed a threat to public safety, to the public safety of the citizens of this country … Those are the musings of a man who has spent a whole lot of his lifetime in a tanning bed. So, he’s been exposed to ultraviolet rays in order to look like he has a tan all the time. Those were the irrational rants of a man who, somewhere out there in this country, God forbid, some inherent of his, someone who follows him closely and adores him, and there are many people like that … will take a little sip of Clorox bleach today to ward off the potential of the virus, and they will die.”
There have been similar calls for over three years to use the 25th Amendment to address controversial statements and policies by the President. Ironically, this type the amendment like a type of constitutional lysol that can be used wipe away a unduly elected but controversial president. That is not its function.
As I have previously written,Section 4 has, 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. Pence and the rebellious Cabinet would then have to send another declaration within four days to the President pro tempore of the Senate and the Speaker of the House that says, more or less, don’t believe a word, he’s unfit. Once Congress had the second declaration, if not already in session, it would have 48 hours to assemble to debate the issue. It would then have 21 days to vote on the president’s fitness. To remove the president, two-thirds of both houses would have to agree. If Congress did not vote within 21 days, the president would get his power back.
In other words, the use of the 25th Amendment over this latest controversy would be unwarranted as it is unlikely. The likelihood of removing Donald Trump under the 25th Amendment for this controversy is about as likely as his receiving an honorary medical degree.