Talk of the 25th amendment underscores a volatile presidency

“Twenty-Fifth Amendment to the Constitution. Article 4,” David Frum, a conservative author and former speechwriter for President George W. Bush, wrote presciently just eight days after Trump’s election in November 2016. “We’re all going to be talking a lot more about it in the months ahead.”

On that, at least, he was right. There has been a lot of talk about it. But what has become increasingly clear in recent days is that the talk has extended not just to those who never supported Trump, but even to some of those who worked for him. As it turns out, according to memos written by an FBI official, the deputy attorney general at one point last year suggested that the president was so unstable that Vice President Mike Pence and the Cabinet should consider invoking the amendment.

There is no evidence that Pence or any Cabinet members ever seriously contemplated the idea, and the deputy attorney general, Rod Rosenstein, now says he does not believe there is a basis for such a removal. Moreover, there are serious obstacles to invoking the amendment in the way Rosenstein is said to have suggested. But the very discussion of it within the administration underscores just how volatile this presidency is and how fractured the team around Trump is.

“Like so much with this president, it’s quite literally without precedent,” said Russell L. Riley, a presidential historian at the Miller Center at the University of Virginia. “To anyone’s knowledge, we’ve never been anywhere close to this situation before.”

The disclosure of Rosenstein’s comments by The New York Times followed an essay written by an unnamed senior administration official for The Times’ opinion pages saying that “given the instability many witnessed, there were early whispers within the Cabinet of invoking the 25th Amendment,” but “no one wanted to precipitate a constitutional crisis.”

Omarosa Manigault Newman, a former contestant on “The Apprentice” who worked for Trump in the White House until she was fired, told MSNBC this month that discussion of the 25th Amendment was common enough among her colleagues that they invented a hashtag, #TFA, to use in text messages to each other “whenever he did something that was just so insane and so crazy and unhinged.”

The recent book by Bob Woodward documented how aides around Trump worked to restrain his more impulsive instincts and prevent him from taking actions that they believed were damaging to the country, even to the point of removing draft orders from his desk so he would not sign them. The Michael Wolff book this year said aides had questioned Trump’s mental fitness, which prompted the president to defend himself by saying that he was “a very stable genius.”

Rosenstein raised the 25th Amendment in one of the most chaotic moments of the Trump administration, shortly after the president had fired James Comey, the FBI director, who was leading an investigation into the Trump campaign’s ties to Russia. Rosenstein told Andrew McCabe, then the acting FBI director, that he might be able to persuade Attorney General Jeff Sessions and John Kelly, then the secretary of homeland security and now the White House chief of staff, to try to recruit support for removal under the amendment.

In a statement, Rosenstein said the Times’ article was inaccurate but did not explicitly deny that he had discussed the 25th Amendment. Instead, he used the present tense to dismiss the prospect. “Based on my personal dealings with the president, there is no basis to invoke the 25th Amendment,” he said.

Rosenstein seemed to feel used after a memo he wrote criticizing Comey’s handling of the Hillary Clinton email case was cited as justification to fire him. Rosenstein then appointed Robert Mueller as special counsel to take over the Russia investigation. But to Trump’s allies, the report that Rosenstein raised the 25th Amendment and even talked about secretly taping the president to prove his instability — he said he was joking — bolstered the president’s view that a “deep state” within the government is out to get him.

“It is clear that Rosenstein appointed a special counsel with the mission to remove President Trump from office while also giving himself cover,” said Sam Nunberg, a former campaign adviser to Trump. “What could Rosenstein have possibly thought the president was going to use the Comey memo for besides a rationale to fire Comey? This is a witch hunt.”

Former White House officials said they were not aware of a serious discussion of the 25th Amendment, but it was clear that some people around Trump had serious doubts about his capacity. As a result, the president has governed with a team riven by factions, contributing to dysfunction and leading him to wonder whom he can trust and who might be, in his view, plotting against him.

“I never really had questions about people looking into the 25th Amendment,” said Marc Short, a former White House legislative affairs director for Trump. “But there’s no doubt there were people on the team initially who weren’t all rowing in the same direction, and that fosters a sense of distrust that’s probably still carrying over in some ways.”

The 25th Amendment was added to the Constitution in 1967 after the assassination of President John F. Kennedy in part to establish a method to fill the vice presidency if it became vacant. After Lyndon B. Johnson ascended to the presidency, next in line, should something have happened to him, was John W. McCormack, the speaker of the House, then in his 70s and not at his physical peak.

The amendment also outlined what to do if the president was “unable to discharge the powers and duties of his office.” After suffering a severe stroke, President Woodrow Wilson was virtually incapacitated late in his tenure, and President Dwight D. Eisenhower suffered a heart attack and two other major illnesses. The nightmare situation was a president who was in a coma but could not be removed because there was no provision for it. In the nuclear age, when a commander in chief might have to make world-altering decisions in minutes, that was no longer considered tolerable.

The amendment has since been invoked to temporarily transfer power to the vice president during short periods of medical procedures, as when President George W. Bush twice underwent colonoscopies. But only once before has a White House staff been known to seriously contemplate invoking the amendment to permanently replace the president.

When President Ronald Reagan appointed former Sen. Howard H. Baker Jr. as chief of staff after the Iran-Contra scandal broke, the new team arriving in the West Wing heard that the aging president was increasingly “inattentive and inept,” as a report prepared by a Baker aide put it. White House officials signed Reagan’s initials to documents for him.

But after Baker ordered aides to observe the president closely to see if it might be necessary to invoke the 25th Amendment, he came to the conclusion that Reagan, while older, was still fit. “Within a couple days of when we got there, we had this lunch and Senator Baker says, ‘You know, boys, I have no doubt this president’s fully capable of performing the job of president of the United States,'” recalled Tom Griscom, one of Baker’s aides.

As a practical matter, the notion that Trump would be removed through the 25th Amendment is more opposition fantasy than plausible outcome, absent a significant change in circumstances. The amendment does not define “unable to discharge” and was devised mainly for a situation when a president had a serious health problem, not for a president whose behavior seems erratic and would fight removal.

The amendment can be put to use only if the vice president agrees, and few can imagine Pence, who has made public loyalty to Trump his calling card, going along without a more extreme situation. The amendment then requires the support of a majority of the Cabinet or some other body designated by Congress. Congress has never designated such a body, leaving the matter to the Cabinet.

Even if the vice president and a majority of the Cabinet were to decide to invoke the amendment, there is an appeals process. The deposed president could inform Congress that he is, in fact, capable of carrying out the duties, and it would require a two-thirds vote of both the House and the Senate to reject that determination and remove him — a burden even higher than impeachment, which requires only a majority in the House as well as a two-thirds vote of the Senate for conviction and removal.

Pence dismissed the issue in a recent interview on “Face the Nation” on CBS, denying being part of any discussion about invoking the amendment. “No, never, and why would we be?” he said.

Griscom said the amendment did not really fit the circumstances. “I’m not sure there’s anything here that you could say Section 4 applies,” he said. “That’s the part that became somewhat troubling — you serve at the pleasure of the president. If you do not think the president is exercising the duties of the presidency, say it. You’ve got a choice, stay or resign.”

Still, it reflects the level of frustration and concern inside the president’s own team. Twenty-two months after he first raised the question, Frum did not seem at all surprised that it has been the topic of conversation within the administration: “Here the people on the inside are recognizing this guy can’t do the job — ‘I can’t get his attention and it’s getting worse every week.'”

This article originally appeared in The New York Times.

Talk of the 25th amendment underscores a volatile presidency

WASHINGTON — President Donald Trump had not even taken office before critics who considered him dangerous began imagining how to get him out.

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