Below is my column in USA Today on the call to use the 25th Amendment to “remove” President Donald Trump. As a threshold matter, the 25th Amendment does not “remove” a president but rather shifts his powers to the Vice President. The only method for removal of a president from office is impeachment. The 25th Amendment refers to the Vice President as “acting” in his capacity. However, “removal” is a common way of expressing the substitution under the 25th Amendment. The main problem is not the nomenclature but the standard. Section 4 actions under the amendment are designed for physical or mental incapacities. Such evidence may exist but it has not been disclosed. Vice President Mike Pence would need to disclose such evidence of mental illness or irrationality in the President. The speech alone is not a basis for a 25th Amendment “removal.”
This week, Speaker Nancy Pelosi is continuing to call for the invocation of the 25th Amendment or impeachment as alternative courses of action. She and others have expressed a preference for the 25th Amendment due to the limited time remaining before President Trump leaves office. However, neither time nor the text for a 25th Amendment action is supportive in this effort. More importantly, without such clear evidence of mental incapacity, the use of the 25th Amendment could introduce even greater instability in our system.
Here is the column:
Herman Wouk’s novel “The Caine Mutiny” is an American classic of the effort by a crew to remove a mentally unstable captain. Even before the riot in Congress, the movie came to mind as President Donald Trump was delivering an unhinged diatribe blocks away on how the election was stolen. If you replaced the word “election” with “strawberries,” you had the speech of Captain Philip Francis Queeg in the novel. However, now there are reportedly some within the administration who want to push for a type of twilight removal under the 25th Amendment.
The problem is the same as the one identified in “The Caine Mutiny”: “Remember this, if you can — there is nothing, nothing more precious than time. You probably feel you have a measureless supply of it, but you haven’t.”
This is not the first time that the 25th Amendment has been raised. Almost immediately after his inauguration, Democrats and the media called for the removal of Trump through impeachment or the 25th Amendment. Various liberal psychologists held forth on alleged mental illness without the benefit of any examination.
The animosity toward Trump led to the abandonment of the “Goldwater Rule.” The American Psychiatric Association adopted the rule to deter doctors from making unethical diagnoses of individuals without evaluating them. The cause for the rule was a disgraceful campaign featuring psychiatrists who claimed that Barry Goldwater was mentally ill to influence the election against President Lyndon Johnson.
The danger of such claims is manifestly obvious. The 25th Amendment was primarily designed for physical disabilities of a president. It is astonishing that there remained a glaring uncertainty in our Constitution until 1967 on how to handle a president suffering from an incapacity.
It was not something that the Framers did not contemplate. The issue was raised in the Constitutional Convention in 1787 by Delegate John Dickinson of Delaware, but it was left unaddressed. The issue still remained unaddressed when President William Henry Harrison died a month after taking office. It was not until President Dwight Eisenhower suffered a stroke that serious efforts were made toward an amendment — a move that accelerated after the assassination of President John F. Kennedy.
Various presidents have used the amendment to temporarily transfer power during surgeries or brief incapacities. The nuclear option, under Section 4, has never been used.
To do so with a perceived mental disability is a particular concern. As shown by the Goldwater controversy, there are always psychiatrists willing and eager to declare a president insane even from a distance. Politicians often portray their opponents as mentally unbalanced since only an insane person would hold an opposing view some issues. If we were to remove a president on such a basis, it could open the floodgates for such removals in the future.
The 25th Amendment is designed to address constitutional, not character, flaws. Trump’s speech Wednesday was not just unpresidential but reckless. He actively encouraged the protesters to march on Congress, and the speech was timed to end just before the proceedings in the joint session to count electoral votes.
Trump was preceded by his son, Donald Jr., who whipped the crowd into a frenzy with such lines as, “If you’re gonna be the zero and not the hero, we’re coming for you and we’re going to have a good time doing it.” Trump lawyer Rudy Giuliani declared that it was time for “trial by combat.” It was a shameful and inciteful display.
However, Trump’s speech alone is not evidence of incapacity or insanity. Being obnoxious and narcissistic is not grounds for removal. Indeed, such a standard would leave much of Washington vacant.
Even if there were evidence to support such a move, it would result in a likely removal for just four days. Under Section 4, Vice President Mike Pence and a majority of the Cabinet can sign a declaration to Congress that Trump is incapable of holding office. In such a highly unlikely circumstance, Pence would immediately assume power. However, Trump would have four days to object. In that case, Pence and the Cabinet would have to send a second declaration. The Congress would then have to vote by two-thirds vote to remove the president. That is, both chambers (unlike impeachment, which only requires a two-third vote on the Senate). Congress has 21 days for that vote, but for Trump, it would have to happen virtually immediately to beat the natural end of his presidency. Congress can also create a body to make such a finding of disability, but that would likely take even more time.
Of course, if Congress can secure a second declaration from Pence, it could run out the clock on the vote and leave Trump in constitutional quarantine until Jan. 20. The vote would then become moot.
Yet, what would be achieved? Trump has already pledged an orderly transfer of power to President-elect Joe Biden. In order to impose this ignoble moment on Trump, the Congress would create precedent for future such removals on ill-defined mental disabilities. If it wanted to do this, it should have moved years ago.
As stated in “The Caine Mutiny,” “wasted hours destroy your life just as surely at the beginning as at the end — only in the end it becomes more obvious.” For naval mutinies and presidential removals, there is nothing more precious or flitting than time.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley