Donald Trump and the 25th Amendment: How Would It Work?

As we saw in our last post, President Donald Trump’s COVID infection and his October 4 ride in an SUV with Secret Service agents have once again raised the issue of safety and potential presidential incapacity.

The White House defended the ride as safe and appropriate, and the National Review called it a “drive-by greeting.” On the left, in contrast, some termed it a “joy ride,” and The Atlantic asked if it is time to invoke the 25th Amendment.

Brian Kalt, the legal scholar and author of Unable, discussed the amendment and its provisions with us–and our conversation continues here.

As Kalt explained, the 25th Amendment was intended to give the president benefit of the doubt—when the issue is not death, not inability to communicate, but a more subtle inability. Unconsciousness is an easy call, but other forms of illness are very difficult to use as reasons for invocation.

"The evidence of the president's mental incapacity,” Kalt says, “would have to be very clear and very strong." Narcissism, for example, would likely leave a president with many supporters and many opponents—and thus not command the requisite nonpartisan basis for using the amendment’s procedures.

John Feerick, a Fordham University law professor who as a young attorney helped Senator Birch Bayh draft the amendment, agreed. In an e-mail exchange with me, Feerick said the amendment is "structured to protect the choice of the people" as expressed in presidential elections. As such, he said, it should "require a very high bar."

Under the amendment, he said, "errors of judgment and lack of popularity do not constitute an inability."

So it's complicated, and the step is not easily accomplished. Under the amendment, a president can declare himself "unable." But as an alternative, the vice president and a majority of the Cabinet can do so. The point underlines Feerick and Kalt’s way of seeing the amendment. Cabinet members are by definition presidential appointees, and as such are likely to be members of the president’s own party; only a serious incapacity would lead them to take action.

What about other specific psychiatric syndromes?

Kalt thinks a COVID-induced delirium, in which the president is grossly disoriented and loses touch with reality, would likely be a valid basis for invoking the amendment. In this situation, a president may not be coherent enough to contest the step, which he has the right to do under the amendment.

Dementia? Some psychiatrists have claimed Trump is already suffering from this condition. Kalt gives a nuanced answer about whether the amendment could be invoked here. If a president has progressive memory lapses and language trouble, and if he has been diagnosed with cognitive impairment, he says, the Cabinet would still have to decide whether the disorder leads to "serious malign effects."

On the one hand, even a very impaired president could pull himself together temporarily or could rely on his staff for decisions, making it hard to achieve the required agreement by the Cabinet and members of Congress. And exactly what constitutes significant enough deterioration is hard to pin down. Impairment (a difficult basis for invocation) might evolve into overt “inability,” but a combination could make things complex. A president could be “so far gone” that the Cabinet might invoke the amendment “even there were nothing bad happening,” says Kalt, but “the worse the effects are, the quicker you’d be to ‘take away the keys.’”

The need for judgment and the importance of context in a difficult situation are reminiscent of the daily work of consultation-liaison psychiatrists on hospital wards—but with the country’s leadership at stake.

What about mania? It "depends how manic" the president is, says Kalt. Certainly if mania led to a president to order a nuclear strike, the "irreparable harm" involved would force the Cabinet to step in. But the mania may not be that severe, and the peril may not be immediate.

Would an independent medical panel or other commission help?

The idea has been floated since the 1960s and had some support from former president Dwight Eisenhower. But a commission notably does not appear in the text of the amendment. The experts who testified before Senator Birch Bayh's Subcommittee on Constitutional Amendments believed such a commission would be anti-democratic and could raise further complications. (In the words of one expert, "the question of inability is more than a medical problem.") In 2017 Rep. Jamin Raskin (R-MD) revived the idea of an independent commission, but the idea never advanced further.

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That leaves just a handful of options. There is impeachment by the House, a move that is easier to do on a partisan basis but that has never led to a president’s conviction in the Senate. More directly, at the next election the voters can express their opinion.

The Constitution, says Kalt, thus "creates a strong presumption that when someone is elected president, that person gets to serve four years come hell or high water." That leaves at best an unclear role for concerned psychiatrists.

Thomas G. Gutheil, a professor of psychiatry at Harvard Medical School and an expert on psychiatric testimony in court, agrees that psychiatrists are limited in their options. Full information about a president could only come from "the president’s voluntary submission to a detailed evaluation by external (non-White-House staff) forensic clinicians.”

At present, he adds, a voluntary examination “seems unlikely.”

There is more. Even if a president agreed, it is not clear from the amendment who would ask for such an evaluation, whether it would be disputed (as seems likely), or what standing it would have. The amendment does not mention an in-person medical or psychiatric evaluation.

Could a vice president or Cabinet member consult a psychiatrist for an evaluation of the president without an interview and consent from the president? Kalt thinks it would prove controversial. Indeed, should the sitting president choose to do so, at that point he could fire any Cabinet member who commissioned an unwanted evaluation.

So what’s a concerned psychiatrist to do?

An expert, says Kalt, can educate the public and "key decision makers" about a president's condition as he or she sees it. Bandy Lee, the Yale psychiatrist who has led a movement to call out Trump as dangerous, has been trying to do just that.

Speaking out to the public and educating lawmakers could well be perceived as partisan in nature. But, thinks Kalt, if the steps are perceived as nonpartisan, public psychiatric comment might be able to "pressure the president to make concessions, particularly during an election campaign."

For example, if pressured, a president might voluntarily agree to undergo a psychiatric evaluation (the scenario seen as unlikely by Gutheil). Or, if a president’s impairment becomes more advanced, a psychiatrist's opinion expressed publicly could lead the Cabinet to try and invoke the amendment. Since 1967, as far as is known, no such steps have been taken.

Any public psychiatric comment on a president's mental health, of course, would quickly run afoul of the American Psychiatric Association’s "Goldwater Rule." (The rule bans media comment on public figures by individual psychiatrists unless they have conducted an interview and obtained consent for their comments.) Gutheil indicates his agreement with Bandy Lee, who has extensively criticized the rule. I myself have written at length about the rule’s problems and argued for individual conscience as a psychiatrist’s best guide when principles conflict.

So here we are. On the eve of an election, with impeachment already done and yet with the president still in office, it appears that the most appropriate option for a concerned psychiatrist is an educational role—though one in which she carefully weighs the ethics of her choice.

On November 3, the people will get their chance to decide. As John Feerick, looking back on his work with Birch Bayh, told me: "The people will be the ultimate judge."