Twenty-fifth Amendment Remedies

The video I have posted below is about twenty minutes long. It’s from “The Last Word with Lawrence O’Donnell” on MSNBC. I recommend investing the time to watch it, if for no other reason than as a way to familiarize yourself with a relatively unknown part of our Constitution.

As everyone knows, the MSNBC evening lineup during the week features three left-of-center personalities: Chris Hayes, a 30-something liberal journalist from the Bronx, who has been in the trenches of progressive activism since he graduated from college; St. Rachel Maddow, a 40-something journalist from California with a doctorate in politics from Oxford, who happens to be the first openly gay person to host a big-time prime-time show on American television; then there is Lawrence O’Donnell, a 60-something Harvard graduate and self-admitted European socialist who majored in economics and became a writer, most notably a writer for, and producer of, the popular television show The West Wing, for which he won an Emmy award. Oh, and he was a senior advisor to Senator Daniel Patrick Moynihan and a staff director for the Senate Finance Committee.

Of the three hosts on MSNBC’s evening programming, O’Donnell, in my opinion, is the most original thinker, at least in terms of what he does on his show. I like Chris Hayes and his youthful exuberance and intellectual debating style. I love St. Rachel and her ability to connect seemingly disparate stories into one coherent and informative narrative. What I enjoy about O’Donnell, though, is his willingness to go where others fear to go, as demonstrated in the following segment (actually two segments I captured into one) that explores a topic few people would dare to touch on cable television.

What lends a strong sense of legitimacy to the otherwise unorthodox discussion you will hear in the video below is the presence of Laurence Tribe, the renowned professor of constitutional law at Harvard Law School who was once considered to be on the short list of any Democratic president’s Supreme Court nominee list. Tribe’s credentials as a scholar of the Constitution are beyond question, and the fact that he has argued cases before the Supreme Court some 36 times makes him arguably the preeminent source of thought on liberal jurisprudence—that is to say, common sense jurisprudence—in the country.

To provide some background, the Twenty-fifth Amendment was adopted in 1967, after the Kennedy assasination revealed the uncertainty surrounding the incapacity of the president and just how, if a president was allegedly unable to perform the duties of the office, would the system deal with the situation, not just if the president recovered from a clear incapacity but if he (or someday “she”) challenged an apparent one. How would all this work and who would decide?

For the purpose of the discussion below, here is the relevant provision in the amendment, found in Section 4:

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.

Now, to the discussion:

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14 Comments

  1. That we should be even discussing the invocation of the 25th amendment is, of course, amazing. However, I can’t see it happening short of some episode of pending imminent disaster, say the launch of nuclear weapons over some fit of pique. I’m not a lawyer, but it seems to me there’s a critical flaw in the 25th amendment, i.e., that cabinet members serve at the pleasure of the president and can be fired for no reason at any time. If there’s a revolt, why couldn’t he simply replace the malcontents? After all, Trump has already demonstrated his readiness to do this. I understand that Sally Yeats’ walking papers were delivered by hand in a span of 4 hours.

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    • The way I understand it, Jim, is that the acting president, the sitting VP, would have full power, including the power to fire any cabinet members, not the deposed president, who would essentially only have the right to petition Congress with a claim he can fulfull his duties. A two-thirds majority in both houses would be needed to keep the VP in power. Anything short of that, and Tr-mp comes back. Probably madder, and crazier, than hell.

      Duane

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  2. I was fascinated by this segment from O’Donnell. My youngest daughter (27) describes him as “badass”. I’ve gotta believe that someone will bring this to the attention of Mr. Trump’s paranoia. Could Pence’s head roll? Crazy times.
    I can also say that there has probably never been VP as potentially inclined to pull this off than Mikey. When he was a congressman here in Indiana I had the misfortune to be involved in a couple of charity situations he quickly co-opted for superficial press coverage. He’s smarmy. He’s calculating. But — he’s also tone deaf and not really very smart. He’s about as good a lawyer as David Brat is an economist.
    That said, I think he’s been dreaming of this opportunity ever since Trump called his number.
    He’s always wanted to be President. He would NEVER be elected in his own right. This is tailor made for him.
    I’ve heard people say he would be better than Trump as President. I don’t believe it. He has the cover of having been in government before. But — in god-forsaken Indiana. That’s a danger. He was a lousy congressman and governor. Like the Donald, he’s all about himself. He is more self righteous than any Southern politico. And like the Donald — he has a mean streak.
    No sir — we are stuck with 4 years of madness, whoever is on the throne.

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  3. O’Donnell did a follow-up interview on 2/21 with a psychologist and psychiatrist who have an online petition for mental health professionals to remove P. Grabber from office because of his mental instability. Their discussion was interesting for at least two reasons: First, some members of the mental health community have criticized other members for assigning psychiatric diagnoses to P. Grabber in violation of the APA’s 1973 “Goldwater rule.” However, O’Donnell’s guests pointed out that assigning psychiatric diagnoses back then depended on the techniques of psychoanalysis which is no longer true: DSM diagnoses are now based on behaviors that can be observed and don’t require an in-person clinical interview.

    Second, I’m sick of hearing P. Grabber’s supporters tell the rest of us that “he won and we need to get over it.” What these supporters don’t understand is that P. Grabber is not even close to a normal President. The objections of many (most?) non-supporters are not just based on policy differences. His policies are so contradictory and/or incoherent that it’s difficult to know what most of them are. And the more important problem is P. Grabber’s mental instability, which was addressed by O’Donnell’s guests. I’ve thought since the primaries that P. Grabber’s incredible narcissism clouds everything he says and does. O’Donnell’s guests not only confirmed my belief but also that his mental health problems are more extensive and very dangerous. I wish the only problem with P. Grabber was policy differences, but it’s something much worse. And, unfortunately, the Republican VP and majority in Congress using the 25th Amendment to take action against P. Grabber is likely to remain a fantasy unless he murders someone.

    If you want to watch the interview, it’s here: http://www.msnbc.com/the-last-word

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    • Dayan,

      I saw that additional interview and couldn’t wait to get it posted. Unfortunately, MSNBC didn’t put it up for use until more than a day after it aired. I finally got it up. It is amazing. The most important point made, besides the obvious diagnosis of Tr-mp, is what you pointed out: diagnoses of these kinds of illnesses “don’t require an in-person clinical interview.” In fact, such interviews can be less effective. I confess I did not know that, assuming the good doctor is correct. I need to do more research, but that is an astounding claim, as far as I’m concerned.

      Duane

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  4. ansonburlingame

     /  February 23, 2017

    I like the term “P. Gabber”. But somehow we must get past the gabbing and see the reality of problems facing America.

    Just today I read two Globe columns spelling more doom and gloom and both columns are correct. First one was another statement of FACT that only 4 out of 28 members of NATO have defense spending budgets that meet treaty requirements. If everyone fails to pull their financial load within NATO that organization will be a “hollow army” incapable of much of any military effort, no matter what we do in America.

    Second was the financial chaos within State, Local and teacher union pension funds (George Will). Read it and weep for our kids, much less grandkids.

    I tried to send Duane a third document but it failed to go thru. It is a compilation of testimony from four Four Stars (Vice COS for each service) telling the House Armed services committee how poor our military readiness is today. Only 3 out of 58 combat brigades are combat ready and the number of ships is at a 100 year low in the Navy. One front line, modern, nuclear sub has languished in dry dock for 48 months because the money to repair it is not available The email was distributed to a list of old nuke sub skippers only but revealing to say the least.

    With such problems facing us many are now trying only to figure out a way to fire P. Gabber. That of course will fix nothing (other than political desires) and whoever takes his place will still face (but not talk about) overwhelming problems that will continue to drive America farther and farther in the ditch. I could add Medicare and SS insolvency, national debt escalation, etc., etc. but you all know those already.

    I will be amazed now if Trump survives a year in office. What next is my question now.

    Anson

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    • “Trying only to figure out a way to fire P. Grabber” will — of course — fix a helluva lot of things. For one, the US have never been perceived as weak as it is right now, with Trump and his minions on the hook to Russia. If P.G. were gone there would be no trolling Russian vessels just miles off the coast of Delaware or Connecticut. You Tr-mp apologists are just a bunch of 2-bit whores. Ryan, McConnell, Chaffitz, et al. I find your lack of courage disturbing.

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    • Anson,

      I won’t argue about the problems we have, some of which were caused by Republican obstructionism during the Obama years (infrastructure neglect and the sequester, for instance), but the logic here is simple. You start with the biggest problem first. The biggest problem is that we have a disturbed man, friendly with a Russian killer who happens to lead the country, essentially in charge of the world. And the world, at least those still friendly toward us and with whom we share common interests, doesn’t trust him. He is either a pathological liar or a lunatic or a combination of both. And he ain’t gonna change. His unpredictability is dangerous, as you can see. His incompetence may be even more dangerous, as the Yemen mission, and the lies surrounding it and the blame he put on his “generals,” demonstrates.

      Bottom line: get rid of problem number one before tackling the rest. I would still regard a President Pence as quasi-illegitimate, considering the Russian interference in the election. But at least Pence didn’t openly asked the Russians for help. To be honest, from the standpoint of my liberalism, a President Pence, along with Ryan and McConnell, could do a lot of long-term damage to the country in countless ways that I don’t even want to think about. But we simply can’t allow an unhinged man, and a vulgarian who doesn’t much like democracy or democratic institutions, running and ruining the country.

      This situation, for me and for so many Democrats, isn’t a shit sandwich. At least with a shit sandwich you get bread. There is no bread here. Just shit.

      Duane

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  5. Anson — I think most of the people who read this blog are aware of many of the problems America and the world are facing and I’m not sure how repeating them to each other is any more help than just “gabbing” (whatever that means).

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  6. ansonburlingame

     /  February 27, 2017

    Only one point back at “General”. For decades Russian “trawlers” patrolled each port with nuc subs going to and coming from sea. I played tag with dozens of them, threatening “games”, dodge ball, trying to get the other ship to “blink”. Dangerous. stupid but reality throughout most of the Cold War. Now they are back at the same game, the Russians, not us.

    As well I am pretty sure Russian subs are once again patrolling the seas with nuc weapons. Not too many and not all the time but there goes Putin, again. You can also bet your asses that Trump has been told that kind of information. What he will do about it will of course be at least Top Secret, until some idiot leaks THAT information to everyone. That kind of behavior must stop and the only way to do it is sending someone to jail for breaking badly needed laws to protect legitimate classified information. Anyone care to define “legitimate” is such instances???

    But naugh, not important, right. Better get rid of Trump and let ???? handle the mess.

    Anson

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    • Better to get rid of Trump before he sells the nuclear codes to Putin for a mess or porridge.

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    • Defining “legitimate” classified information has so far proved impossible, and therein lies a problem that’s been with us for a very long time. The classification system is very badly overused, simply because so many (low-level) people can do it and because there’s no down-side for over-classification. When in doubt, classify. Couple that with the fact that classification prevents public judgement on the subject and you have the perfect medium for abuse of power and budget.

      In my experience, most classified information can be found in more readable form in defense industry journals and the major print media. That excludes, of course, technical information on how to construct and operate complex military systems such as nuclear weapons and sensors. Trump, who famously did not even understand the concept of the nuclear triad during the campaign, is unlikely to even understand the technical stuff and so would be a poor source for much of it. What he is inclined to do is conduct national-security planning sessions in public. Now that really is dangerous.

      The fact that Russian trawlers are back at their old game should not provoke fears. As Anson says, they used to do it all the time. I’m pretty sure they have never been successful at tracking our boats for very long at all. But in any case, their presence is something the public needs to know. It’s Putin’s saber-rattling. I can see a good side to it – it enlivens the game for the crews to have an opponent.

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  7. ansonburlingame

     /  February 28, 2017

    No General. Get rid of Trump and give it to someone else to worry about,

    AB

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  8. Sans Trump? Less to worry about — although Mikey Pence is a nit wit. You may be ruled by fear, sir — a baseless, carefully orchestrated fear from the manipulative right — but I’m not afraid of Putin (without Trump’s intimate collaboration). My fear is of spineless, double-down conservatives who will give the corrupt, incompetent Trump a pass because — by hook or by crook — they won in November and they can do what they want: including disposing of due process and dismantling American democracy. Some dare call it treason.

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