Trump, insurrections and the 25th Amendment

When the Democrats refused to believe the results of the 2016 elections, showing a persistent inability to process and accept it, they could never be said to be mentally unwell. Unhinged and delusional, maybe, but hardly a case of mental corrosion.

Law academic Brian Kalt, a keen student of the 25^th amendment, advances two scenarios where section 4 might be used. The first involves "a president whose impairment is severe enough that the helm is, effectively, unmanned, even if he is still somehow able to claim that he is able to discharge his powers and duties." Examples might entail severe strokes, a psychotic break or moderate dementia.

The second instance, which still suggests psychotic behaviour, would involve impairment "to the point of teeing up a disaster," much like General Jack D. Ripper's flight of murderous fancy in Stanley Kubrick's Dr Strangelove. "Consider, for example, an unhinged president who orders a capricious nuclear strike against another county - the problem here is not that the president is 'unable' so much as all too able to wipe out millions of lives."

While Kalt was writing this in 2019, his views convinced Jack Goldsmith of Harvard Law School and David Priess, chief operating officer at Lawfare, that Trump had met the standard of removal set by the 25^th Amendment. He had shown an "inability or unwillingness for weeks to distinguish reality from fiction about the results of the election" and had shown a "detachment from exercising the basic responsibilities of the office".

Andrew C. McCarthy in the National Review prefers, with much justification, that this is simply pushing things too far, confusing delusion and character flaws with incapacity and inability. He has pointed out, with some accuracy, that the amendment was "not applicable to a situation in which the president is alleged to be unfit for reasons of character, or due to the commission of political offences that may arise to the level of high crimes and misdemeanours." Trump might be delusional and self-interested, but these were not "competent diagnoses of mental instability."

Within the various disturbed readings of the 25^th Amendment lie the same rages that caused Caliban to despair at seeing his own face. Trump is the symptom, the agent of chaos, the disrupter making much of a bedridden Republic, a good deal of it the making of his opponents. To use the language of constitutionalism masquerading as an insurrection is intended to finally entomb Trumpism. What this risks doing is politically martyring a man who will leave office on January 20.

So far, Pence is resolutely opposed to using the measure and has the support of various Trump cabinet officials. According to the New York Times, "Those officials, a senior Republican said, viewed the effort as likely to add to the current chaos in Washington rather than deter it." Utilising it would add the most combustible fuel to the argument Trump has been making all along: that establishment forces, always keen to box him during his administration, are now intent on removing him.