Below is my column in The Hill on the applicability of the 25th Amendment to remove President Joe Biden in light of the Special Counsel report detailing his “diminished faculties.” Despite the various calls for using the amendment, it is neither practically likely nor factually warranted on the basis of his report.
Here is the column:
The report on President Joe Biden’s retention and mishandling of classified material hit Washington this week with a thunderclap. Yet the finding of Special Counsel Robert Hur that Biden “willfully retained” such material was not as shocking as Hur’s explanation of why he will not be prosecuting.
Hur noted that, even if he prosecuted Biden, a jury would find him a “sympathetic, well-meaning, elderly man with a poor memory.” That was followed by a disastrous press conference at the White House, where a cranky president lashed out at the reporters while exhibiting additional signs of confusion.
Now, some are calling for Biden’s removal from the presidency under the 25th Amendment. However, constitutional removal would require more than just memory lapses and “get off my lawn” press conferences.
The Hur report details alarming gaps in Biden’s memory, and what Hur described as the president’s “diminished faculties.” Given the detailed accounts in the report, Biden’s press conference bordered on self-immolation. On Thursday night, Biden insisted that he was still sharp and not diminished mentally…before confusing the presidents of Mexico and Egypt. This followed a week when Biden repeatedly referenced conversations with long-dead world leaders.
The subsequent calls for Biden to be removed under the 25th Amendment are similar to demands made from Democrats and various law professors and pundits during the Trump administration. At the time, figures such as the University of Chicago’s Eric Posner argued that the “conventional understanding” of the amendment should be “enlarged” to include instances where both parties “lose confidence in the president’s ability to govern.”
The various experts and pundits who called for Trump’s removal under the 25th Amendment are notably silent this week, even after his own Justice Department cited his diminished faculties as a reason for not charging him.
Nevertheless, as I wrote with regard to the Trump demands at the time, calls for Biden’s removal ignore the true purpose and standard for removal.
The issue of “disability” of a president was briefly raised in the Constitutional Convention in 1787. It was a delegate from Biden’s home state of Delaware who asked how they would respond to a disability, “and who is to be the judge of it?” John Dickinson’s question was left unanswered in the final version of the Constitution.
What followed were persistent controversies over succession. This issue came to a head after President Dwight D. Eisenhower suffered a stroke. After the assassination of President John F. Kennedy, Congress finally addressed the issue in the 25th Amendment. The amendment addresses the orderly succession of power as well as temporary disabilities when presidents must undergo medical treatment or surgeries.
It is Section 4 that allows the removal of a president. One option is what I have called the “mutiny option.” It requires a vice president and a majority of the Cabinet to declare 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 Kamala Harris could get eight Cabinet officers to go along with a letter to Congress, her status as the “Acting President” would likely be short-lived. Joe Biden (who yesterday declared, “I’m elderly and know what the hell I’m doing”) would only have to declare to Congress that “no inability exists.” Biden would then resume his powers.
Harris would have to send another declaration with the Cabinet members within four days to the president pro tempore of the Senate and the Speaker of the House, rejecting Biden’s claims.
With that second declaration, Congress would have 48 hours to assemble to debate the issue. It would then have 21 days to vote on the removal. However, that would require two-thirds majorities in both houses. If Congress did not vote within 21 days, the president would resume and keep power.
In other words, it is about as likely as François Mitterrand coming forward to say that he faked his death and has indeed been in communication with Biden.
The question on the merits is whether “diminished faculties” constitute an incapacity. While the 25th Amendment was written with physical disabilities in mind, it clearly can apply to mental or cognitive disabilities. Yet if Biden’s decline is viewed as a barrier to prosecution, would it necessarily be a barrier to the presidency?
The answer is complicated. A study in Psychology Today of the first 37 presidents suggests half of them experienced some form of mental illness. They were still able to perform their duties.
Memory problems are not a compelling basis for removal. However, it is a matter of degree. Biden’s cognitive problems are becoming increasingly evident, but the sole question is whether he can carry out the duties of his office. The standard is not whether he can carry out those duties well.
There is a difference between Biden confusing names and actually carrying on conversations with dead people. The latter would clearly be grounds for removal. Of course, it is hard for the public to know the degree of Biden’s decline. The White House staff has clearly shielded Biden from the public and the press for years. Even during the 2020 campaign, many suspected that the staff was hiding Biden’s mental struggles.
In that sense, the concern over Biden’s fitness is legitimate. However, it will take much more of a showing to establish a case for his removal under the 25th Amendment.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
You know, Jonathan, Special Counsel Robert Hur could have simply declined prosecution of Mr. Sniffer Whiffer with the perfunctory “the totality of the evidence does not support criminal prosecution” statement. But he chose to add those damming facts in his declination. It seems that it was by design (at least to me anyway).
Skyraider1717,
What I think is interesting, and as others I think it may have been you pointed out, why would Garland let this report out or at least remove certain “damming facts?”
I dont want Biden removed by either the 25th or impeachment.
I want them to continue on with a Biden campaign. As it goes on, more and more will see his mental decline to the point only the truly devote cultists will still be declaring, “This is fine! This is fine!” while their house burns down all around them.
It will be fun!
Attempting to apply the 25th amendment to Biden serves a very useful purpose of keeping his frailty in front of the public for an extended time even if it is known to, ultimately, be unsuccessful. The man is a disaster and his incompetence and incipient dementia allows an unaccountable shadow administration to continue steering the US to disaster. Biden has allowed his administration to be staffed by many, many anti American activists that seek to dismantle American hegemony. He is a disaster for the common man and his inability to perform the duties of the Presidency needs to be kept front and center for the electorate.
A call to invoke the 25th amendment could be construed as an insurrection. It would be messy.
Dems did it every day of Trump’s presidency, and it wasn’t referred to as an insurrection then.
In Sept 2008, the DNC communicated the talking points to their subsidiary organizations, regarding John McCain’s run for US President. The talking points reflected a précis on actuarial models.
It appears today that the DNC leaders no longer believe in actuarial models but are now evangelical Christians. They believe in the resurrection of dead like Jesus Christ and are intent on performing a raising up from the dead ala Lazarus but on Joseph Biden. Not even a Hail Mary is going to help them.
😇
1 in 4 chance McCain may not survive 2nd term
McCain would be the oldest president to begin a first term in office. By the end of a second term, Jan. 20, 2017, he would have a 24.44 percent chance of dying, compared with 5.76 percent for Obama, the firm estimates. “Can either candidate expect to serve two terms in a healthy state? The answer is yes,” says James C. Brooks, Jr., an actuary with the firm. “They’re both in outstanding health for people of their age.” Illness is another issue.
https://www.nbcnews.com/health/health-news/1-4-chance-mccain-may-not-survive-2nd-term-flna1C9458707
McCain and the politics of mortality
Since John McCain announced Friday that first-term Alaska Gov. Sarah Palin would be his running mate, Democrats have been quick to point out that the 44-year-old governor could soon be just “a heartbeat away from the presidency.” The veiled reference to McCain’s advanced age is hard to miss. It’s a macabre point to raise on the night when Palin will speak to the convention here — but a look at the actuarial tables insurance companies use to evaluate customers shows that it’s not an irrelevant one. According to these statistics, there is a roughly 1 in 3 chance that a 72-year-old man will not reach the age of 80, which is how old McCain would be at the end of a second presidential term. And that doesn’t factor in individual medical history, such as McCain’s battles with potentially lethal skin cancer.
https://www.politico.com/story/2008/09/mccain-and-the-politics-of-mortality-013096
Elections: 1 day, in person, ID
I don’t care if you vote, I care if you cheat!
Virtually NO COUNTRY on early has month long unlimited mail in ballots
Democrats have been caught hundreds of time cheating ALREADY!
especially since 99% of government located in DC…DOJ, FBI, IRS, etc are 100% CORRUPT!!! for Democrats!
out of the frying pan, into the fire. kumalya would be worse
I Ain’t Crazy – Vote for Uncle Joe
Wait, Stalin? I thought he died.
How about, I Ain’t Crazy – Vote for Uncle Earl K. Long
A simple test that lots of Amercans have had to administer Is mom/dad fit to drive an automobile? Is it time to take the battery out?
The question of “Does President Biden suffer from dementia” has already been answered. He does and it has clearly been present since he was elected. Any physician with Internal Medicine or Neurological training or both, who can step outside their politics, has clearly seen he had mild disease when he was elected and it has only progressed since that time. He clearly has more advanced disease now.
The diagnosis of dementia is relatively easy but the degree is the question.
The mini-mental status exam is fairly comprehensive at this stage of the President’s disease
1-what is the year, season, date, day of the week, month – 5 points for each correct answer
2-where are you now State, county, town/city, hospital , floor? 5 points
3-name 3 common objects and recall them later when I ask. 3 points if he repeats all 3
4-count backwards from 100 by 7’s, or spell the word world backwards. 5 points
5- recall those 3 objects – 3 points if he recalls all 3
6-show 2-3 objects and have patient name them , 2 points
7-repeat the term “no ifs, ands, or buts” 1 point
8-Take a piece of paper, fold it in half and place it on the floor. 3 points
9-Read this statement and do what it says “close your eyes”. 1 point
10- make up and write a complete sentence and both a noun and verb. 1 point
11- Show a picture of 2 interlocking pentagrams equally interlocking, and then have the patient draw the same picture. 1 point. Often used to show progression of disease. 2 clear and sharp pentagrams detiorate over time as the disease progresses.
Normal 30 points.
Abnormal 24 points or less.
Use this the next time you see the President perform or play it at a party. Can you see this president achieving 24 points. Make up your own mind.
The subtlety comes in early stages when you start to know something is wrong but even the minimental status exam is questionable. That is when you need a full fledged neurologist and more extensive testing done. At strange characteristic in men is the sudden development of an overwhelming conviction that their wife is having a torrid affair with some other man. You look across the room and there is this 70-80 yr old women who obviously is having no affair and is in tears because of these accusations. But that may be the only symptom until other symptoms start to become manifest in the weeks and months ahead.
Trump said it was a “very hard” test. He’s at the beginning stages of dementia.
Since you don’t know the result of the test, you really don’t know what you are talking about. If one listens to a Trump rally, his marbles seem to be firmly in place. Anyway, compared to Biden – –
The very fact that he believed the test to be “very hard,” when it’s an astoundingly simple test for anyone with a normal brain, suggests that he’s at the early stages of dementia.
And no, if you listen to a Trump rally, you’ll hear that he frequently confuses things (e.g., Nikki Haley with Nancy Pelosi repeatedly), slurs some words, and often meanders in ways that make no sense. On the other page, I posted a long recent interview with Biden; all his marbles are there.
How absurd. You no more observe him at all, let alone *frequently*, at rallies, than you don’t elder abuse known dementia victims into offices you know they can’t execute. You are amusingly parroting sound bites from entities like ‘Occupy Democrats’ .
Biden said yesterday that there is no need to invoke the 5th Dimension.
A Republican writing that Biden is diminished means jack squat. Also Trump is far worse, and so far Republicans have been lucky that the press is focused only on Biden. But that could change.
Sammy…are you ignorant or just willing to accept lies?
Tell us…why is no one in jail for the Russian Hoax Conspiracy? Remember those CRIMINAL Lies?
You still think the Biden Laptop of CRIMES who our top intel officials said was Russia…is Russian
Just look at your trail of LIES? Do you want to end up like a Democrat City like Bridgeport, Ct, Newark, NJ…or some other FAILED Democrat run stronghold?
Your “Russian Hoax” was demonstrated to be mostly true.
You need a mental health evaluation, stat.
Do you expect to be taken seriously or to not be ridiculed and mocked for such profound absurdity?
I seem to recall something like this…
https://townsquare.media/site/295/files/2019/07/Weekend-at-Bernies-crop.jpg
Just before the Half-Time began RFK Jr. runs a Super Bowl Ad – Why to go Robert!
Kick Off the Races with a Bang – Hats Off to the Campaign Team, Perfect Timing, Perfect Move.
A New Political Party gets moving beyond – Whatever THIS is.
Robert F. Kennedy Super Bowl LVIII Campaign Advertisement Commercial
He’s just a fox in sheep’s clothing.
The problem is that Biden is a sheep in Fox clothing.
@Jim22
Well you may feel that its still the same Coca-Cola in new Can:
Trump – Original Tasting Coke
Biden – Cherry Coke
Kennedy – Coke Zero
This Kennedy Campaign has a fresh Wacker Avenue Leo Burnett Style Marketing and it’s a welcomed change.
Sure ‘you may feel’ that JFK is the same damn thing, but it’s refreshing to see that it is not the redundant whack-a-doodle bashing We have had to swallow for the past two decades. – Refreshing as Coca-Cola –
https://www.coca-cola.com/us/en/brands/coca-cola
Somebody paid money for that ad???
@Anon,
Kennedy didn’t run the ad
A PAC supporting him did and there was no collusion between the PAC and Kennedy.
I thought it was a good ad, but again… some of JFK’s family didn’t like it.
And he’s a threat to Biden, so they are making it hard for him to run.
Kennedy posted the ad pretty much simultaneously with it being shown on air, hard to do if there’s no coordination. He’d probably pull more voters away from Trump than from Biden.
If the 2020 election was run without interference we wouldn’t have to talk about removing him now.
Now, don’t remove him, l want everyone who voted for him to be as miserable as I am.
We are not, we like Biden. He is a calm, normal, and boring politician. Exactly what we need. Also continuing to spread lies about 2020 just makes you look stupid. Even Trump has admitted in private that the election was clean.
If you watch his so called press conferences, he is anything but calm, normal.
He sees dead people.
He cannot recall who Hamas is, without someone prompting him off camera.
He could not recall which country he most recently visited without some child, prompted by an adult, to tell him.
He has spent more time on vacation than any other modern president.
If you call the disastrous withdraw from Afghanistan, a proxy war with Russia that could of ended a few months after it started, the worst inflation in some 40 years boring, an invasion of our southern border, you need to have your meds adjusted.
You are confusing ” calm” with “‘comatose”.
Satire, right? Poorly done, but satire, right? Your entire statement is jaw-dropping absurdity. There is nothing *normal* about him, but even worse is the calculated, unremorseful elder abuse by you and the other 666 people who actually *voted* for him. His impairment was known by the mid-2010’s, middling through his equally horrid boss’s reign of destruction. Hur acknowledges significant, disturbing cognitive incapacity during a 2017 interview with Biden. Three years before Biden *ran* for President. You knew. Your party knew. Don’t pretend. I’d hate to have your karma as a nerve in my tooth.
“Now, don’t remove him, l want everyone who voted for him to be as miserable as I am.”
Wow, perhaps you should stop worshiping an orange idle. That man lost 60+ court cases and goes around saying he won. He wants to encourage Russia to do what they want with select European countries. He buried his ex wife on his golf course for tax reasons. He has been found civilly liable for sexual abuse against one woman, and has more court cases coming up. He hates disabled veterans, calling them losers because they lost their lives protecting this country. He loves to grab em by the pussy, maybe its bad, maybe not.
Perhaps get your head out of the sand and you won’t be so miserable.
I am reading the requirements and needed qualifications of a college dean and they are pages long. A university administrator can expect 10 hours of meetings and days that last 15. The President of the United States is many pay grades above a university administrator.
The White House gives a daily report of Joe Biden’s schedule and more often than not, there is nothing on his schedule. A big day for him is having lunch and meeting with a group or raising money on the tax payer’s dime. He does nothing. They are not even pretending anymore.
He is being propped up by a corrupt press, the activist staff who actually run the country and his wife Jill who is loving the experience, the fancy perks and Air-force One. She now has to lead him by the hand so he can read his cue cards or teleprompter.
Meanwhile our citizens are being clobbered economically, drugs and criminals are freely flowing at the southern border, groceries have skyrocketed.
One of Joe Biden’s best political moves was to choose a Vice President who is worse than he. She could not garner more than a couple percent during primaries.
We are heading over the brink without a driver. Now, it’s a race to the bottom.
1. Trump has a light schedule, very light.
2. Not everything meeting the president takes is not on the public schedule.
3. Economy is doing great. Inflation is now, wages are up, unemployment is down.
The economy is not doing great.
At least not for Main St.
inflation is cumulative.
Wages are not up. The last jobs report, they adjusted hours worked lower to make wages appear higher. When factoring in inflation, wages fail to keep up with cost of living and have since Bidenomics. That is why so many Americans have had to use credit cards to pay the bills. We just hit a new high for Americans carrying a balance on their credit cards, just to pay the bills. Record number of Americans are having to use their retirement or 401ks to just pay the bills. In the past 11 of 12 jobs reports have been revised significantly lower than the initial report. Economists say that is highly unusual. Also, the Household survey, a much more accurate measure of employment, shows more Americans are working two or even three jobs to make ends meet. The Jobs Participation survey finds more and more Americans have dropped out of seeking employment. The unemployment report does not count those people.
@Turley,
You missed the mark here.
Lets keep this simple.
Yes, if found to have diminished mental capacity, Biden can be removed under the 25th Amendment.
Its that simple. However, in order to do this, Biden would have to be examined by a qualified physician.
The physician would have to make the determination that Joe Biden does have dementia and that its serious enough to rise to the level of incapacitation.
Ronny Jackson was in that position as the physician to the POTUS before being elected to Congress.
However it would be up to the current physician to perform that test and make that determination. Or rather a specialist in conjunction with the PCP would make that decision.
While they may decide that Biden has dementia, they would be reluctant to make that determination.
Its not just a medical one, but a legal one. They would err on the side of caution, and that means they would find in Biden’s favor until its beyond obvious.
The determination by the DoJ not to prosecute is more of one that hurts Biden in terms of re-election but not enough to warrant the 25th to be executed.
Talk to anyone who’s had to deal with an elderly relative going thru onset of dementia.
The point is that yes they could use the 25th if Biden were to take the cognitive test(s) but he would have to be found to be far gone before they would make the medical determination.
This is just another nail in Biden’s election coffin.
-G
The real question is who is ultimately making the important decisions because it is obvious Biden is a mere puppet
In Other News: “President Biden insists there is no need to invoke the 5th Amendment as he is in perfect health.”