Since before Donald Trump took office, many of his detractors, both Democrats and a fair amount of anti-Trump conservatives, have pushed for his impeachment.
These detractors have been promoting a punishment in search of a crime.
Their real agenda is not to address any specific proven criminal conduct but rather to eliminate, by any means possible, a duly-elected president whom they hold in personal contempt.
More recently, many of these people have changed tactics and are arguing that Trump should be stripped of his presidential powers because he is unfit for duty. They point to his bizarre personal conduct over the past several days as evidence that he is mentally incompetent.
Neither of these efforts have any legal merit or any realistic possibility of succeeding.
Regular readers of my columns know that I have been very critical of President Trump. Although I support many of his policies, I find his personal conduct as president to be appalling, disrespectful to the office with which he was entrusted, and humiliating to our country.
I haven’t changed my mind about him. Trump is embarrassing and ineffective. But there is nothing in the Constitution that subjects a president to removal from office based on those qualities.
Overturning the results of a national election is contrary to our foundation as a representative democracy. That’s why the Framers of the Constitution made it extremely difficult to do so.
The two ways that a president can be removed from office against his will under our Constitution are through impeachment or by a declaration that he is unable to continue his duties. Absent any new developments, there is no possibility whatsoever that Trump will be removed by either of these methods
Under Article II, Section 4 of the Constitution, “The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Neither embarrassing conduct nor ineffectiveness constitute “Treason, Bribery, or other high Crimes and Misdemeanors,” so there is no basis for impeaching President Trump. (Some Trump detractors focus on the ongoing investigation into alleged collusion between the Trump campaign and the Russians, but to date there has been little evidence to support this allegation and none at all to support the idea that Trump himself was involved in any such collusion.)
To remove a president by impeachment, a majority of the House of Representatives must vote to approve articles of impeachment setting forth the specific crimes with which the President is charged. Then, two-thirds of the Senate must vote to convict him of at least one of those specific charges. Only two presidents have ever been impeached, and neither of them were convicted and removed from office.
I was working in the Senate during the impeachment trial of President Bill Clinton. I saw firsthand that the entire trial was staged and scripted by the Senate leadership – even including the conduct of Chief Justice William Rehnquist, who presided over the trial in accordance with the Constitution. There was never the slightest possibility that Clinton was going to be convicted – even though Clinton was a Democrat and the Senate was controlled by the Republicans – and everyone knew it.
Congress has shown itself to be appropriately reticent about overturning the will of the American people who elected the president by removing him through impeachment. So, it is safe to say that neither Donald Trump nor any other president will ever be removed by impeachment absent clear and conclusive proof of serious criminal conduct. No such evidence exists with regard to President Trump.
Declaration of Unfitness for Duty
Section 4 of the 25th Amendment to the Constitution provides a mechanism for stripping a president of his powers and authority if he is unable to perform his duties:
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Many of Trump’s detractors have been attempting to make the case that this constitutional provision should be triggered by Trump’s bizarre personal behavior, which includes routinely attacking people whose support is vital to passing his agenda through Congress and, most recently, retweeting anti-Muslim propaganda videos from a British hate group at a time that he is trying to rally Muslim Arab leaders to support his approach to dealing with Iran. These Trump detractors question his mental competence based on the fact that his actions usually have the effect of undermining his own agenda.
Trump’s nasty and petulant personal conduct is indeed lamentably self-destructive, but it is not proof that he is mentally incompetent. As Jonah Goldberg of National Review has argued, what we are seeing very likely is exactly the person the American people saw when they elected him.
More importantly, though, there is no evidence that Trump “is unable to discharge the powers and duties of his office,” which is the constitutional standard for declaring a president unfit.
Indeed, Trump has been very busy discharging his presidential powers and duties, including issuing executive orders, overseeing and directing the promulgation and repeal of numerous regulations, and taking an active role in international affairs as the de facto leader of the Free World.
People can debate the merits of the policies that Trump has been advancing through these actions (I personally support most of them), but no one can reasonably argue that his official presidential actions have been reckless or insane or that he “is unable to discharge the powers and duties of his office.”
Advocates of invoking the 25th Amendment nevertheless argue that what constitutes an inability to perform his duties is whatever the Vice President and cabinet say it is. This is a defensible argument, but as a practical matter it still gets them nowhere.
First, the arguments in favor of declaring a president unfit for duty would have to be overwhelming before we could ever expect a Vice President and cabinet who were hand-selected by the President himself to jointly act against him. (The 25th Amendment allows Congress to choose a different panel to make that decision, but a Congress controlled by the president’s own party almost certainly would never do so.)
Second, even if they did declare Trump to be unfit, he would have the constitutional power to immediately overturn that decision by declaring himself to be fit for duty. At that point, the Vice President and cabinet would have to vote again to declare him unfit.
If they were to do so again, Trump would still retain his powers, and the question of his fitness would be decided by Congress. In order to declare him unfit and strip him of his powers, two-thirds of both houses would have to vote to do so – which actually is a higher bar than for removal by impeachment, which requires only a simple majority vote by the House.
As discussed above regarding the Impeachment Clause, Congress would never vote to strip a duly-elected president of his powers absent clear and conclusive proof of his unfitness. Currently, there is little, if any, evidence to support the allegation that Trump “is unable to discharge the powers and duties of his office,” so there is no realistic chance that he will be stripped of his powers via the 25th Amendment.
The bottom line is that people like me who are disgusted by Trump’s personal conduct can continue to call him out for it – and I certainly will. But anyone who expects to see him removed from office is going to be disappointed.
Author: Ken Falkenstein
Ken Falkenstein is the Managing Editor of Committed Conservative and brings a wealth of experience and expertise in public affairs to the job. Ken served in the U.S. Army in the last years of the Cold War as a Russian linguist for military intelligence and the NSA. After leaving the Army, he earned his degree in Secondary Education from Old Dominion University, where he also wrote a popular column in the student newspaper.
Upon graduation, Ken worked as a Legislative Aide to two Republican members of the Virginia House of Delegates. Ken also served as Corresponding Secretary of the Young Republican Federation of Virginia, managed several successful political campaigns, and managed governmental affairs operations for a local Realtor association.
In 1995, Ken moved to Washington, DC to serve as a Legislative Assistant to Sen. John Warner (R-VA). While working for Sen. Warner, Ken attended law school at night, earning his J.D. with honors from the George Mason University School of Law (n/k/a The Antonin Scalia Law School). Since that time, Ken has practiced as a civil litigation attorney, including serving for three years as an Associate City Attorney for the City of Virginia Beach, Virginia.
Ken previously was a contributor to the highly-regarded political blog Bearing Drift and was a weekly co-host of The Steve Batton Radio Program. In 2016, Ken ran unsuccessfully for the Virginia Beach School Board. Ken is also a former President of the Down Syndrome Association of Hampton Roads.
Ken now lives outside of Denver, Colorado with his wife, Kim, and three sons, Adam, Dylan, and Joshua, who has Down syndrome. Ken’s writing is motivated and informed primarily by his concern for his kids’ future.