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Former deputy FBI director Andrew McCabe told “60 Minutes” in an interview on Thursday that Justice Department officials had discussed invoking the 25th Amendment to remove President Donald Trump from office.
According to an op-ed published in the New York Times last September by an anonymous “senior official” in the Trump administration, this idea has also been floated before by people inside the White House.
The 25th Amendment to the Constitution, which was ratified in the aftermath of President John F. Kennedy’s assassination in 1963, sought to establish a process whereby the president could be removed or replaced in the event of death or some other incapacitation.
It was primarily about ensuring continuity in government, but Section 4 of the amendment stipulates that the vice president and a majority of the Cabinet can declare the president unfit for office and then send a formal notice to the speaker of the House and the president pro tempore of the Senate. Once that happens, the vice president becomes the “Acting President.”
Are we inching closer to that possibility right now? And if so, is there a legitimate case to make that the 25th Amendment ought to be invoked?
In January 2018, I spoke with Jay Berman, a former chief of staff to Sen. Birch Bayh (D-IN) and one of the co-authors of the 25 Amendment. We discussed what the amendment means, how it was intended to be used, and if can be plausibly invoked to remove Trump from office.
A lightly edited transcript of our conversation follows.
Sean Illing
You helped write the 25th Amendment. Why was it created?
Jay Berman
It was created very specifically in the aftermath of the Kennedy assassination, which was a real crisis point for our government and for the country. But it was also created at a moment that was perceived to be the beginning of the nuclear age, and so we recognized that we needed processes that fit the realities of the new world. Suddenly the stakes were higher, and the power of the presidency was enormous. We needed procedures and checks in place so that the government could still function in the event of an emergency or some other unanticipated crisis.
Sean Illing
But certainly one of the goals was to have the ability to remove an unstable or unfit president from office if it was deemed necessary for the sake of the country.
Jay Berman
That was definitely one of the purposes.
Sean Illing
What does it actually say about the conditions under which a president can be removed from office?
Jay Berman
Well, that’s the big question, isn’t it? It’s much more about process than it is about setting into the Constitution a trigger mechanism. The president has to be unfit to fulfill his obligations. Everything about the 25th Amendment implies that removing an elected president is primarily a political act. Of course, it should be informed by medical opinion on both the physical and mental health of the president, but ultimately the act of removing the president is a political act.
Sean Illing
So how does that process get started? Who initiates the use of the 25th Amendment?
Jay Berman
The mechanism for triggering it is the vice president taking the first step and getting a majority of the Cabinet to assert that the president is incapable of fulfilling his duties. If that happens, they then send a formal written notice to the speaker of the House and the president pro tempore of the Senate.
If the president doesn’t dispute this, the vice president becomes the “Acting President.” But if the president disputes this declaration, then two-thirds of Congress must agree that he’s unfit for office in order for him to be removed.
Sean Illing
It’s relatively easy to determine that a president is physically incapable of performing his duties, but how do we decide that a president is mentally unfit?
Jay Berman
Everything begins with the vice president. The vice president has to determine in his own mind that the president can’t meet his constitutional responsibilities because of a variety of mental reasons. If the 25th Amendment had included a set of circumstances in which the trigger mechanism said, “You know, he’s wacko, he tweets insane things, he says insane things, we have to remove him,” it never would have passed.
So we determined that it would be a political decision left to the vice president, the Cabinet, and Congress. That’s how we designed it, for better or worse.
Sean Illing
Does it allow for Congress to act in the event that the vice president is negligent or unwilling?
Jay Berman
The 25th Amendment didn’t provide the specific trigger you’re asking about it, but it does authorize Congress, under Section 4, to create a body that could examine the president’s fitness for office. But in a partisan environment like this, it’s hard to believe that this could ever happen.
Sean Illing
I’ll ask you straightforwardly: Do you think the 25th Amendment should be invoked to remove Donald Trump from office?
Jay Berman
No.
Sean Illing
Why not?
Jay Berman
At this moment, I don’t think he meets the test of a president who’s incapable of fulfilling his responsibilities. I think he was elected to do these dumb things. He hasn’t become dumber or meaner since he was elected — this is who he’s always been. This was who he was when he ran, and may well have been the reason people elected him.
The problem is that we have a ridiculous electoral system and a bizarre set of circumstances that conspired to make this situation possible. But I can’t honestly say that the 25th Amendment is the answer right now. The answer right now is impeachment.
Sean Illing
Well, that leaves us in almost an absurd position. The country made a grievous mistake, we all know it, and yet we’re forced to watch this tragicomedy unfold knowing how disastrously bad it could get.
Jay Berman
Correct.
Sean Illing
You’re not cheering me up, Jay.
Jay Berman
I think we ought to be talking more about how horrible our electoral system is, a system that commits the person with less votes to beat the candidate with more votes. This is the fundamental issue which people have neglected to think about in the rush to the 25th Amendment. None of this would have happened if we had a direct popular election, but we don’t do it that way, and now we’re trying to fit the 25th Amendment into this unique set of circumstances.
Sean Illing
I understand all that, but we are where we are and I’m trying to think through the options we have. The 25th Amendment, whatever its original intent, still allows for a determination to be made about a president’s mental fitness. If someone like Trump, who each day appears more unhinged, more unstable, more deluded, cannot be declared mentally unfit, is it conceivable that anyone could?
Jay Berman
It’s very alarming, what we’re witnessing right now. But the bar for the 25th Amendment is set extraordinarily high. I agree that the president appears unhinged, but he’s always appeared unhinged, and he was still elected in a legitimate political act. If, for example, he decided he wanted to go to war with North Korea against the advice of literally everyone else, then we would be in different territory in terms of the 25th Amendment. But right now I just don’t see it. I see more than enough grounds for impeachment, however.
Sean Illing
Perhaps, but for the partisan reasons you mentioned above, impeachment is equally unlikely to happen, unless the Democrats retake Congress.
Jay Berman
I never suggested we were in a good place. We’re in a very bad place. I sleep worse every night knowing Donald Trump is president, but I don’t think we can find some shortcut for dealing with that.
Sean Illing
Should we be talking about the 25th Amendment at all?
Jay Berman
Absolutely. I think there should be changes to the 25th Amendment to make it more viable and applicable to today’s world. I’m not saying that in terms of Donald Trump, but I’m saying to the world we live in. I think we need to empower Congress further to act in a responsible and timely way, but again, there is a mechanism in the 25th Amendment already that permits Congress to do something. But I’ll repeat what I said earlier: Would you trust this Congress to do its job?
Sean Illing
At this point, I wouldn’t trust Congress to make a cup of coffee.
Jay Berman
Exactly.
Sean Illing
If you sat down to rewrite the 25th Amendment today, what would you change? What would you add?
Jay Berman
I would amend it to actually require that in the process of determining if the president is fit for office, that there be some professional medical input on an ongoing basis, not some commentary on what the guy did yesterday, because every day he does something crazy. That’s one way to make it more relevant to a circumstance like the one we’re now in.
I certainly prefer that to what we have now, which is knowing this guy is crazy but unable to prove it.
