This past weekend and the subsequent few days have been the first Independence Day with Donald Trump in the White House. At a time that should be marked with celebration of our enduring values of self government, honoring the establishment of our Constitutional rights and freedoms, and somber reflection of those who have sacrificed in service to protect that independence, Donald Trump has given speeches about himself, viciously attacked journalists about their physical features, and has tweeted a fan video of himself attacking an anthropomorphic CNN. These are not the actions of a leader. They aren’t even the actions of an edgy teenager. These are the actions of a mentally unbalanced adult. To add insult to insult, Trump’s own party has signaled that they will do little about it save for make some bland statements about how “troubled” they are.
With a federal investigation into the extent to which Trump may have been personally involved in a foreign adversary’s attempts to undermine the integrity of our elections consuming nearly all of the White House’s political capital, Trump has shown himself for the umpteenth time to be sorely lacking in temperament. Since the election, Trump has shown no signs of actual innocence in any of the actions that he has been alleged to have taken. Indeed, Trump’s behavior, almost daily, would suggest that he is worried that he might be found out for some wrong doing. This is why he has tried since the beginning to discredit reporters, critics, and those investigating him. I have my own thoughts on the whole sordid affair, but suffice it to say, I do not believe that Trump is totally innocent.
However, this isn’t really about that. Not entirely, anyway. The investigation may take as long as 2019 to conclude. While it may or may not show that Trump is guilty of or party to any number of things, including, but not limited to: Fraud, hacking, impersonation, conspiracy, money laundering, quid pro quo, accepting bribes, collusion, et al; the important takeaway is that something must be done now. Last week, the House Appropriations Committee voted almost unanimously to end the Authorization for Use of Military Force that was passed in the wake of 9/11. The amendment was passed by the committee and placed into a must pass spending bill. We’ll see if this gains any traction in the full House and in the Senate, but for now the thing to know is that since Republicans control the House, they also control the committee. And they voted nearly unanimously (Committee Chair Kay Granger was the lone nay vote).
While the passing of this amendment would be big news in any Congress, and rightfully so, it is exceptionally telling that this amendment, which has been introduced before, passed now. The implication is, of course, that Trump cannot be trusted to use the powers granted by the Act to wage war unilaterally. The Act was passed after 9/11 as a tool to allow the president to act in the so-called global war on terror without having to go to Congress for permission. This Act has been invoked at least thirty times as of 2013. It has been cited by Presidents Bush and Obama to order military strikes in Afghanistan, Iraq, and Syria. While Obama’s actions were always under political attack by Republicans, no serious attempt to revoke these powers was ever made.
The Act has been the recipient of heavy criticism almost since the beginning. Critics say that it cedes Congress’ authority in matters related to war to the president. Critics have said that it has been abused and invoked in actions that are only tangentially, at best, related to fighting terror. Indeed, the text of the act makes specific mention of al Qaeda, and not, for instance, ISIL, lone actors, or splinter cells. Nonetheless, the Act is broadly worded to allow for presidents to act on individuals and groups that he deems to be related to terrorism, radical Islamic or otherwise. Now, it would seem that even Republicans think that it is a step too far to allow these broad, unchecked powers to be afforded to a president, any president, let alone Donald Trump.
Well, given Trump’s actions over the last several days – and really since he announced his candidacy – it might be time to seriously consider that Trump is not well. The acceptance of this amendment is not an overt statement to this suggestion, but it is a tacit acknowledgement of the possibility. At the very least, it suggests that those who voted for it don’t believe that Trump will act in the interests of the United States. This gets us to the question of what can, and should be, done now.
The Twenty-Fifth Amendment was drafted, passed, and ratified in the aftermath of the assassination of President Kennedy. The original wording of the relevant part of the Constitution, which the Amendment supersedes, was somewhat ambiguous as to who should fill the role of president should a sitting president be removed from office, die, or otherwise be unable to discharge the duties of the office. Further, it made no mention of how to replace the vice president until the next presidential election. While President Kennedy had already been deceased at the time of the adoption of the Amendment, and so that situation didn’t necessarily cause any problems with the transition of power to Lyndon Johnson, there remained the possibility and fear that Johnson, or some other president, might survive an assassination attempt but be left in a vegetative state. While this would be obvious to any objective observer that the president would no longer be able to fulfill the duties of the office, there was no mechanism to determine exactly how, legally speaking, this would be determined. Hence, the Amendment.
Section Four of the Amendment states
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.
Trump’s potential mental instability notwithstanding, and this is a questionable matter, it is possible, and should be considered, that Trump does not have the ability to fulfill the duties of his office based on a number of other factors. Trump has, for instance, made it quite clear that he holds the First Amendment in disdain. His never ending attacks on the legitimacy of the press and his stated desire to neuter the press shows that he does not take his oath to protect the Constitution seriously. Whether you like the press or not, the fact remains that they are a constitutionally protected class; the fourth estate. The Framers knew the value of a free press and officially codified its existence not just into law, but into the law that all other statutes must be in pursuance of. Trump has suggested on more than one occasion that the press should be held criminally liable if they print or report things that are unflattering to him. He has called the press the “enemy of the people.”
Trump has also attempted to establish a recognition of Judeo-Christian values into law. His first version of his “MUSLIM BAN” had a provision that would give non Muslims priority for consideration to enter the country. He has called his travel ban a “MUSLIM BAN” on many occasions, even going so far as to officially declare it just that, a ban on Muslims. Trump has encouraged violence, even offering to pay the legal fees, on private citizens who criticize him. He has created a panel with the purpose of finding ways to infringe on the right to vote. He has suggested that votes that were not for him are illegal and that people who voted for any other candidate, specifically Clinton, are guilty of a crime. His Justice Department wishes to selectively enforce laws so that specific classes of people will be considered targets, and they have suggested that those people be treated as guilty until proven innocent – the opposite of due process. He has formally ceded his role as Commander in Chief of the military to the Pentagon. He has made false statements about his own powers, and the powers of the Congress. His administration has made false statements about the role of the legislative branch. He has attacked the judicial branch and suggested that they are not legitimate. He has shown that he neither understands, nor appreciates a separation of powers. These are just the things I came up with off the top of my head, and don’t even address how he has behaved on the world stage in regards to our allies. He has made it clear that he has no intention of honoring our treaties.
The point is that, the question of his mental stability aside, Trump has shown that he has no intention of honoring his Oath of Office. This is about the clearest case of an inability to faithfully discharge the duties of the office there is. But, we don’t have to wait for the investigation and the subsequent case for impeachment. We don’t have to wait until 2020 to vote him out. Our other elected and appointed officials have the power to remove him from office right now. It is high past time that they consider moving in this direction.
Photo credit Getty Images