October 22 and 23, 2017


News and Views


HOUSTON, WE’VE GOT A PROBLEM


THIS WHOLE ISSUE OF HAVING TO FIND OUR PRESIDENT INCOMPETENT OR OTHERWISE DISABLED TO BE IN OFFICE IS PROBABLY, IN MY NOT ALWAYS HUMBLE VIEW, A BASIC FLAW IN OUR CONSTITUTION. THE BRITS HAVE A BETTER METHOD – A VOTE OF NO CONFIDENCE. IT SEEMS TO ME THAT IT’S KINDER TO THE PRESIDENT; IT DOESN’T INVOLVE A LONG DRAWN OUT TRIAL AND BEST OF ALL, NO ASSASSINATION BY THE CIA.

THE ONLY REASON REQUIRED SHOULD BE THAT WE ARE SORRY FOR HIS INCONVENIENCE, ILLNESS AND EMBARRASSMENT, BUT WE JUST DON’T LIKE HIM AS MUCH AS WE THOUGHT WE WOULD, OR FOR CAUSE – SUCH AS TREASON, DISHONESTLY MANAGING THE VOTE WHICH ELECTED HIM, CHEATING PEOPLE IN HIS BUSINESS DEALINGS (A TOTAL SCOUNDREL SHOULD NOT BE OUR PRESIDENT), COLLUDING WITH A RIVAL FOREIGN POWER TO GET INTO OFFICE AND PROMISING A QUID PRO QUO (SUCH AS IMMEDIATELY TRYING TO GET ALL THE SANCTIONS THAT WERE PLACED ON RUSSIA AND LAWS WHICH ARE SIMPLY UNPALATABLE TO THEM REMOVED), FOR TRYING TO EJECT A WHOLE BODY OF PEOPLE FROM THE USA ON GROUNDS OF THEIR RELIGION OR ETHNICITY, OR DISRESPECT TO THE CORE VALUES OF THE USA AND INTERNATIONAL LAW (ALLOWING THE TORTURE OF A BUNCH OF PRISONERS OF WAR FOR INSTANCE), OR A BEVY OF FINANCIAL AND OTHER ETHICS ISSUES. . FREEDOM FROM ALL OF THOSE THINGS ARE WHAT I WAS TAUGHT FROM CHILDHOOD TO BE “THE AMERICAN WAY.” DISHONESTY IS HUMAN, BUT IT SHOULDN'T GO UNPUNISHED IN A PRESIDENT, AND ARE VALID GROUNDS FOR REMOVAL IN MY VIEW. SAID REMOVAL SHOULD BE EFFECTED BY A SIMPLE MAJORITY VOTE IN BOTH HOUSES OF CONGRESS AND A LISTING OF THE REASONS SHOULD BE PROVIDED TO HIM.

I ALSO BELIEVE STRONGLY THAT AN IDEA LIKE “A SITTING PRESIDENT CANNOT BE INDICTED,” OR THAT “IF THE PRESIDENT DOES IT, IT ISN’T ILLEGAL,” HAVE BEEN ESPOUSED BY VARIOUS CONSERVATIVES, WHO BELIEVE IN THE UNITARY EXECUTIVE MODEL OF THE PRESIDENCY, WHICH IS TOO CLOSE TO BEING A MONARCH FOR ME. THE SEPARATION OF POWERS HAS BEEN SAVING OUR NECKS SINCE THE TRUMP ADMINISTRATION BEGAN, FROM THE FIRST DAYS AND EVEN HOURS. THAT KIND OF THING MAKES US LOOK LIKE A BUNCH OF TOTAL IDIOTS. WE PROFESS TO BE A DEMOCRACY/REPUBLIC AND YET WE VOLUNTARILY ELECTED AN AUTOCRAT. TOO BAD. RECOGNIZING OUR MISTAKE, WE NOW NEED TO EJECT HIM FROM OFFICE AND MAKE THE LANGUAGE OF THE CONSTITUTION MORE SPECIFIC IN ORDER TO PREVENT THIS IN THE FUTURE. THAT'S WHAT MANY PEOPLE ARE NOW SAYING, INCLUDING LEADERS IN BOTH PARTIES. I DO HOPE WE GET SOME RESULTS ON THIS MATTER, AND SOON.


https://www.law.cornell.edu/constitution/amendmentxxv
U.S. Constitution › 25th Amendment
25th Amendment

The 25th Amendment, proposed by Congress and ratified by the states in the aftermath of the assassination of President John F. Kennedy, provides the procedures for replacing the president or vice president in the event of death, removal, resignation, or incapacitation. The Watergate scandal of the 1970s saw the application of these procedures, first when Gerald Ford replaced Spiro Agnew as vice president, then when he replaced Richard Nixon as president, and then when Nelson Rockefeller filled the resulting vacancy to become the vice president. Read more from the Congressional Research Service here....

Amendment XXV

Section 1.

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.

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.



I HAVE INCLUDED THIS SECOND STATEMENT OF THE 25TH AMENDMENT, THOUGH IT IS REPETITIVE, BECAUSE IT GIVES IMPORTANT ADDITIONAL INFORMATION SUCH AS BACKGROUND AND EXPLANATION. IT IS “ANNOTATED.” IF YOU DON’T WANT TO READ IT, JUST MOVE ON TO THE NEWS ARTICLES WHICH BROUGHT IT TO THE CENTER OF MY THOUGHTS. OF COURSE, SINCE NOVEMBER 8, 2016 IT HAS BEEN NEAR THE FRONT OF MY MIND NUMEROUS TIMES EVERY DAY, AS I READ THE DAILY NEWS. WHEN I GO ON THE INTERNET AND READ THE NEWS, I CAN TELL THAT MANY, MANY PEOPLE AGREE WITH ME.

SOME PEOPLE IN THIS COUNTRY – “CONSERVATIVES,” ALL – BELIEVE THAT MY “ATTITUDES” ON THIS ARE UNPATRIOTIC AND DISRESPECTFUL TO THE PRESIDENT. THEY ALSO TEND TO PLACE PATRIOTISM AND BLIND RESPECT FOR AUTHORITY ABOVE RESPECT FOR INDIVIDUALS NO MATTER THEIR RACE, RELIGION, GENDER, MENTAL AND PHYSICAL ABILITIES OR SEXUAL NATURES; WHICH MAKES THEM, IN SOME SIGNIFICANT WAYS, NATURAL ENEMIES TO ME. I TRY TO AVOID AN IRRESPONSIBLE KNEEJERK REACTION OF ADVOCATING THE REPRESSION OF ALL WHO DISAGREE WITH ME, OF COURSE. I DON’T ALWAYS SUCCEED, BUT I KEEP TRYING.

I BELIEVE IN GOODNESS, KINDNESS AND FAIRNESS AS FAR AS POSSIBLE, BUT I ALSO BELIEVE THAT IF A GLAZED-EYED AND SLAVERING RABID DOG COMES RUNNING OUT OF THE BUSHES, AND I HAVE A GUN, I WILL SHOOT IT WITH NO HESITATION. THAT’S MY VIEW ON CIVIL RIGHTS, TOO. ALL RIGHTS MUST HAVE A REASONABLE LIMITATION, AND ALL DETERMINATION OF JUSTICE MUST HAVE WHAT THE LAWYERS CALL “DUE PROCESS.” MARCHING PEACEFULLY IS A PROTECTED RIGHT, BUT ASSAULTING OTHERS AND BREAKING WINDOWS IS NOT. IN THAT WAY, SOME WILL THINK ME “CONSERVATIVE.” NEARLY ALL REASONABLE PEOPLE WOULD AGREE WITH ME ON THAT; BUT THE DIFFERENCE BETWEEN A LIBERAL AND A CONSERVATIVE IS ONE OF THEIR SPECIFIC VALUES. WE WOULD IMPEACH FOR DIFFERENT REASONS.

AS CITIZENS, WE EITHER BELIEVE MORE STRONGLY IN EMPATHY, THE SPIRIT OF THE LAW AND FULLY EQUAL JUSTICE; OR WE VERGE TOWARD STATUS SEEKING AND RANKING, SKIRTING THE LAW AT EVERY CHANCE FOR OUR PERSONAL ADVANTAGE, AND IN RAW POWER. WITHIN THAT DIFFERENCE, I BELIEVE IN THE MAXIMUM FREEDOM WITHIN THE LAW AND A SUFFICIENT INCOME FOR A FAMILY OF A REASONABLE SIZE – FIVE, OR SO – TO BE FED, CLOTHED, SHELTERED, EDUCATED, AND OTHERWISE FOSTERED TO PRODUCE GOODNESS AND MENTAL HEALTH AS OFTEN AS POSSIBLE. ONE THING THAT I KNOW AT THIS POINT IS THAT HUMANS ARE DECIDEDLY PART GOOD AND PART EVIL, AND THAT WORKING TOWARD THE BETTER GOAL IS OUR SECOND MOST IMPORTANT JOB ON EARTH. OUR MOST IMPORTANT IS TO BE AS COMPETENT MENTALLY AND STRONG EMOTIONALLY AS WE CAN.


CRS ANNOTATED CONSTITUTION
TWENTY-FIFTH AMENDMENT -- TABLE OF CONTENTS

TWENTY–FIFTH AMENDMENT
PRESIDENTIAL VACANCY, DISABILITY, AND INABILITY

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4. 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[p.1992]Vice President and a majority of either the principle 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.

PRESIDENTIAL SUCCESSION
The Twenty–fifth Amendment was an effort to resolve some of the continuing issues revolving about the office of the President; that is, what happens upon the death, removal, or resignation of the President and what is the course to follow if for some reason the President becomes disabled to such a degree that he cannot fulfill his responsibilities? The practice had been well established that the Vice President became President upon the death of the President, as had happened eight times in our history. Presumably, the Vice President would become President upon the removal of the President from office. Whether the Vice President would become acting President when the President became unable to carry on and whether the President could resume his office upon his recovering his ability were two questions that had divided scholars and experts. Also, seven Vice Presidents had died in office and one had resigned, so that for some twenty per cent of United States history there had been no Vice President to step up. But the seemingly most insoluble problem was that of presidential inability—Garfield lying in a coma for eighty days before succumbing to the effects of[p.1993]an assassin’s bullet, Wilson an invalid for the last eighteen months of his term, the result of a stroke—with its unanswered questions: who was to determine the existence of an inability, how was the matter to be handled if the President sought to continue, in what manner should the Vice President act, would he be acting President or President, what was to happen if the President recovered. Congress finally proposed this Amendment to the States in the aftermath of President Kennedy’s assassination, with the Vice Presidency vacant and a President who had previously had a heart attack.

This Amendment saw multiple use during the 1970s and resulted for the first time in our history in the accession to the Presidency and Vice–Presidency of two men who had not faced the voters in a national election. First, Vice President Spiro Agnew resigned on October 10, 1973, and President Nixon nominated Gerald R. Ford of Michigan to succeed him, following the procedures of Sec. 2 of the Amendment for the first time. Hearings were held upon the nomination by the Senate Rules Committee and the House Judiciary Committee, both Houses thereafter confirmed the nomination, and the new Vice President took the oath of office December 6, 1973. Second, President Richard M. Nixon resigned his office August 9, 1974, and Vice President Ford immediately succeeded to the office and took the presidential oath of office at noon of the same day. Third, again following Sec. 2 of the Amendment, President Ford nominated Nelson A. Rockefeller of New York to be Vice President; on August 20, 1974, hearings were held in both Houses, confirmation voted and Mr. Rockefeller took the oath of office December 19, 1974.1

Footnotes
1 For the legislative history, see S. Rep. No. 66, 89th Cong., 1st Sess. (1965); H.R. Rep. No. 203, 89th Cong., 1st Sess. (1965); H.R. Rep. No. 564, 89th Cong., 1st Sess. (1965). For an account of the history of the succession problem, see R. Silva, Presidential Succession (1951).
Twenty-Fifth Amendment -- Table of Contents
Constitution Toolbox

169155
Stay Involved

LII Announce Blog
LII Supreme Court Bulletin
MAKE A DONATION
CONTRIBUTE CONTENT
BECOME A SPONSOR
GIVE FEEDBACK
All lawyers

ABOUT LII
CONTACT US


TOO FAR, SAYS THIS WRITER. LET’S GO FOR IMPEACHMENT.

http://foreignpolicy.com/2017/10/23/how-far-must-trump-unravel-before-the-25th-amendment-kicks-in/
LAWFARE
How Far Must Trump ‘Unravel’ Before the 25th Amendment Kicks In?
The constitutional amendment on presidential disabilities could pose a real threat to Trump. But that shouldn't give his opponents solace.
BY MATTHEW KAHN | OCTOBER 23, 2017, 4:19 PM

Photograph -- President Donald Trump boards Air Force One at Andrews Air Force Base in Maryland on Oct. 7. (Brendan Smialowski/AFP/Getty Images)

anity Fair recently reported that White House sources believe the president is “unraveling.” As politicos across a widening swath of the ideological spectrum grow concerned about the president’s conduct, temperament, and basic competence, references to the 25th Amendment have proliferated. It even showed up in the Vanity Fair piece: Former Trump adviser Steve Bannon told Trump that the biggest threat to his presidency wasn’t impeachment but the 25th Amendment. Trump reportedly replied, “What’s that?”

It’s a good question.

The 25th Amendment addresses two essential components of executive-branch function: presidential succession and presidential disability. Before the 25th Amendment was ratified by the requisite three-fourths of the states in 1967 — after passing both houses of Congress in 1965 — the practice of the vice president becoming president rather than taking over as acting president in the event that a president died was a norm, not a law. By the 1960s, there was no controversy over that convention, but Congress and the states nevertheless sought to ratify the norm as a provision of the Constitution. Section 1 of the amendment clearly states that if a president dies, resigns, or is removed by Congress, “the Vice President shall become President.” Section 2 also creates a mechanism for filling the vice presidential vacancies that ensue. The third section provides a process through which presidents can voluntarily and temporarily transfer executive powers to the vice president. (Those looking for an instructive — if dramatized — primer on that matter should watch the fourth-season finale of “The West Wing,” aptly called “Twenty Five.”)

What makes the 25th Amendment of interest to Bannon — and a matter about which Trump should educate himself — is its remedy for presidential disability, especially Section 4, which creates a mechanism for forcibly removing a president who is “unable to discharge the powers and duties of his office” but won’t admit it.

For anyone hoping for a panacean comment in the congressional record that would justify Trump’s removal, the actual history will disappoint. The history of this provision does not give much by way of directive as to when a president is disabled enough to warrant the process it creates, much less the extent to which mental eccentricities rise to the level of a disability finding. Even less does it answer the question of whether such eccentricities are valid as disabilities when they were, as in Trump’s case, plainly evident at the time of election. But the history gives a great deal of insight into the scenarios of presidential deterioration that Congress feared and how those concerns led to the procedural instrument that Congress and the states ratified.

Most histories of the 25th Amendment begin in the moments after President John F. Kennedy’s assassination in 1963, but concerns about presidential incapacity were evident more than a century before the shooting in Dallas.

President William Henry Harrison’s most notable legacy is his unfortunate death 41 days after taking the oath of office. His death precipitated the first crisis of presidential succession and disability. The constitutional provision then in effect left doubt about how and in what capacity the vice president took over for a dead president. Article 2, Section 1, Clause 6 (which the 25th Amendment later modified) said:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

That language does not make clear whether a president’s death caused the vice president to assume the presidency or merely take on the presidential powers in an acting capacity until a special election chose a successor. When Harrison died, Vice President John Tyler adopted the former interpretation and took the oath of office; to quell allegations that he’d usurped the presidency, Congress voted to back him shortly thereafter. The legislature agreed that the powers of the presidency are inextricable from the office of the president; under the Constitution, there could not be an acting president.

That understanding of succession worked when a president died, and it would have worked if a president was removed or resigned. But it was troublesome in the fourth scenario that Article II covered: disability. A 1964 House report captured the problem well: “The Tyler precedent … has served to cast doubt on the ability of an incapacitated president to resume the functions of his office” (Page 4). Tyler and the legislature did not have to consider the possibility that Harrison could be able to retake office. But that scenario arose less than half a century later.

President James Garfield spent 80 days severely ill from infection after being shot in July 1882. The president’s disability was reported in major newspapers. During that time, executive-branch functions ground to a halt. Herbert Brownell Jr. — attorney general to President Dwight D. Eisenhower and an important figure in the drafting of the 25th Amendment — would later testify to Congress that “the department heads transacted only such routine business as could be transacted without the President’s supervision, and it was claimed that important questions of public policy which could be decided only by the President were simply ignored” (Page 11). The vice president, Chester A. Arthur, refused to assume the powers of the presidency on his own during Garfield’s sickness — even though prominent academics argued at the time that the vice president had the sole discretion to declare a presidential disability. A congressional report later said that about 60 days into Garfield’s illness, his seven-member Cabinet thought it would be more prudent if Arthur acted as president. But four members firmly agreed that there was no way for Garfield to resume his office if Arthur took over. They agreed not to broach the subject further with Garfield or Arthur. The consequence for government was not lost on the media: The New York Times wrote on Aug. 15, 1881, that the paper thought the country urgently needed a mechanism for ensuring someone could exercise the presidential powers and believed “the lack of Congressional action in the past [was] a matter to be greatly deplored.” The president’s health declined for another month before he died on Sept. 19.

Nearly 40 years later, when President Woodrow Wilson fell ill in 1919, the ambiguity was an issue once again. Despite the president’s clear inability to act — some bills became law during that period because the president failed to act on them within the 10 days provided by the Constitution — the vice president refused to take on the powers and responsibilities of the presidency. One account describes:

Vice President Thomas Marshall refused to assume the presidency unless the Congress passed a resolution that the office was, in fact, vacant, and only after Mrs. Wilson and Dr. Grayson certified in writing, using the language spelled out by the Constitution, of the president’s “inability to discharge the powers and duties of the said office.” Such resolutions never came.

Marshall, like Arthur, feared that the Constitution contained no mechanism through which the president could regain his office should he recover from his illness. Only the closest advisers even knew of Wilson’s sickness; Edith Wilson kept her husband sequestered in his bedroom for most of the time between his stroke and the end of his term, and many historians have concluded that she was probably the principal decision maker for the country during that period.

Legislative proposals

Despite the experiences of both Garfield and Wilson, Congress remained largely dormant on the issue for 30 more years. When the public learned about Wilson’s condition after his death, the House Judiciary Committee debated the question of disability but stalled over whether the remedy should be a constitutional or statutory change. Other presidents suffered from significant illnesses, both public and private, during the interregnum — Franklin D. Roosevelt’s polio was well known, but his doctors reportedly concealed his high blood pressure and congestive heart failure during the 1940s. Not until the Eisenhower administration did Congress take the first serious steps in the 11-year process that would ultimately produce the solution of which Bannon recently warned Trump.

In 1955, after Eisenhower’s poor health required extended hospitalization, the president called on Congress to clarify the mechanisms for handling succession and disability. As the National Constitution Center notes, the Cold War made the possibility of a president who could not discharge the executive powers an even more frightening prospect and may have spurned Congress to act. In January 1956, the House Judiciary Committee convened a special subcommittee to study presidential disability. Despite a comprehensive digest of written and oral testimony from prominent law professors and government officials on an array of questions related to disability, the subcommittee’s work stalled shortly after considering a draft amendment in 1958.

Foremost on the subcommittee’s agenda was determining whether there was any basis to deduce what the founders meant by “inability” in the original language of the Constitution. The answer would frame whether the problem required a statutory or constitutional solution. The panel received a range of views. Several respondents said that the term could encompass any definition that Congress saw fit (with one respondent specifically mentioning that he believed mental disability should be a consideration). Others said it was deliberately vague so as not to foreclose potentially threatening scenarios that the founders didn’t or couldn’t envision. Still others said there was just no way to know. The consensus was that the term was purposely ambiguous and open to interpretation. Yet in the face of that conclusion, almost every respondent agreed that Congress should not enact a specific definition into the law. To do so would risk over-politicizing questions of a scientific and medical nature.

Moreover, experts disagreed about who should determine presidential incapacity. The questionnaire that the subcommittee distributed asked whether the vice president, the Cabinet, the Supreme Court, or Congress should be responsible for the determination. Respondents suggested an inconclusive variety of permutations of one or more of those entities.

The subcommittee held hearings on at least one draft constitutional amendment. That proposal, written in close consultation with the Eisenhower administration, included provisions to address disability:

SEC. 2. If the President shall declare in writing that he is unable to discharge the powers and duties of his office, such powers and duties shall be discharged by the Vice President as Acting President.

SEC. 3. If the President does not so declare, the Vice President, if satisfied of the President’s inability, and upon approval in writing of a majority of the heads of executive departments who are members of the President’s Cabinet, shall discharge the powers and duties of the office as Acting President.

SEC. 4. Whenever the president declares in writing that his inability is terminated, the President shall forthwith discharge the powers and duties of his office.

During testimony before the subcommittee, Attorney General Herbert Brownell Jr. faced pushback over several points in the proposal. Some members took issue with the administration’s choice to designate the Cabinet as the determining body. Rep. Ken Keating noted that specifying that only department heads “who are members of the President’s Cabinet” could judge presidential disability left the president influence over who would participate. Brownell conceded that point, arguing that “the president should have a certain flexibility there” (Page 9). (Though that concern was ironed out in the ratified amendment, a 1981 Office of Legal Counsel memo suggests that a related controversy — whether acting heads of departments should participate in the disability determination — persisted for decades.)

At Brownell’s testimony, Rep. Emanuel Celler, the chairman of the subcommittee, said history showed that the vice president and Cabinet would be reluctant to use the power granted under Brownell’s amendment even if they had it. During Wilson’s illness, he noted, Marshall would have enjoyed support from the legal scholars if he claimed he retained the authority to assume the powers of the president when Wilson became unable to fulfill his duties. But Marshall resisted. “They were not usurpers,” Celler said, “They were fearful that they might be called usurpers.” Moreover, the chairman was skeptical that passing an amendment would change the strategic calculus of the Cabinet, whose loyalty he thought would continue to lie with the president.

The attorney general rejoined that Marshall’s hesitance to take over from Wilson stemmed from the vice president’s uncertainty about whether Wilson’s disability would end and if he would be able to resume his duties. But an amendment would guarantee that if the president recovered his or her ability to perform the duties of the office, there was a clear process for returning the presidential powers. Moreover, the attorney general countered, being loyal to the president meant that invocations of the amendment would carry more legitimacy; the public could trust that those who had the president’s interest at heart were making the call. Lastly, Cabinet officers swear an oath to the Constitution, not to the president; when those duties came into tension, loyalty to the constitution should win out, Brownell argued.

Notably absent from the Eisenhower-era proposal is the provision in the modern amendment that current debate is so focused on: the power of the vice president and a majority of the Cabinet to challenge — and Congress’s subsequent power to judge — the president’s assertion that he has regained the fitness the Cabinet said he lacked.

The final version of the 25th Amendment provides that when the vice president and a majority of the Cabinet determine that the president is unable to perform his duties, the vice president becomes the acting president. Upon a written declaration by the president that the disability no longer exists, he or she resumes the office. But the Cabinet and vice president have two days to tell Congress that they believe the president is wrong and that the disability persists. Then, Congress has 10 days to vote on the matter; with support from two-thirds majorities in the House and Senate, the vice president is to continue as acting president.

But there was no such mechanism in the draft before the committee. It’s perhaps not a surprise that a draft heavily influenced by the executive branch might presume that there would be no reason to challenge the president’s determination on that point, but Keating objected to this model: What would happen if the president prematurely reasserts his ability? Keating saw only two options. Either the president would fire his Cabinet, or the Cabinet would reassert the president’s incapacity. Both possibilities would halt the executive branch’s function. But the attorney general believed that impeachment was a sufficient bulwark against such a scenario.

Members of the panel seemed open to Brownell’s assessment. Some, including Keating, believed that any solution was better than the ambiguity of the constitutional provision in place at the time. But Congress ended up stalling yet again. The legislative record gives little insight into when and why the Brownell proposal failed. But for about five years, Congress ceased further consideration of the disability question.

According to a congressional report, Eisenhower reached an informal agreement with Vice President Richard Nixon that the latter would assume the powers of the office if and when he was unable. If the president could inform Nixon of the need to transfer the powers of the office, he would do so; but if the disability prevented the president from such communication, Nixon could decide to take over the office on his own until the president was able again. Kennedy entered into a similar arrangement with Vice President Lyndon Johnson. That one was nearly put to the test.

Kennedy’s assassination in 1963 caused members of Congress to fear the narrowly averted constitutional crisis that would have ensued had Kennedy survived the shooting but in a prolonged coma. Within the year, the House and Senate judiciary committees took up, once more, the task of resolving the problem.

The committees quickly settled on the need for a constitutional amendment rather than a statutory remedy. Although Article II made clear that Congress would designate succession beyond the vice president, identical text in Senate and House judiciary committee reports showed that the committees believed the Constitution’s explicit grant of congressional power to create the line of succession meant that the founders did not intend to let Congress legislate on the question of presidential disability — a closely related topic. The committees also lacked confidence in what it viewed as the only alternative mechanism: the Article I “necessary and proper” clause.

The Constitution does not vest any department or office with the power to determine inability, or to determine the term during which the Vice President shall act, or to determine whether and at what time the President may later regain his prerogatives upon recovery. Thus, it is difficult to argue that [the necessary and proper clause] gives the Congress the authority to make all laws which shall be necessary and proper for carrying out such powers. (Page 7)

The House was prepared to enact a five-part solution that two-thirds of the Senate had already approved, the Bayh-Celler proposal (named for the chairmen of the House and Senate judiciary subcommittees on constitutional amendments). Congress had already dismissed competing proposals that addressed succession but not disability. The first two sections of the Bayh-Celler bill codified existing practices. First, the vice president would take over the office of president, not merely act as president, in the event of a president’s death, resignation or removal. Rep. Edward Hutchinson reported that “there [was] no disagreement over section 1” (Page 17). Second, if there was no vice president at any time, the president would nominate a candidate to be confirmed by a majority of the House and Senate.

The last three provisions addressed disability. Section 3 codified the practice of informal agreements that Eisenhower and Kennedy had adopted: The president could preemptively transfer his or her powers to the vice president before a period of disability. The section would create the position of acting president to distinguish this case from the dilemmas that Vice Presidents Tyler, Arthur, and Marshall had faced.

Sections 4 and 5 created the provision of greatest importance to the late unpleasantness. Section 4 provided that with the support of a majority of the “principal officers of the executive departments,” the vice president could assume the powers of the presidency. Congress derived the “principal officers” language from the opinions clause of Article II. (“[H]e may require the Opinion in writing, of the principal Officer in each of the executive Departments.”) By dropping Brownell’s proposed requirement that an officer be a “member of the President’s cabinet,” the president could not exclude a principal officer from the deliberation by removing him or her from the Cabinet.

A House report notes the past controversy over the determining body and engages particularly with the proposal of a fact-finding commission. Rather shortsightedly, the report suggests that “If the President is so incapacitated that he cannot declare his own inability the factual determination of inability would be relatively simple” and that there would be no need for a fact-finding body. (It seems like nearly nothing is simple about determining whether a president is disabled despite his or her belief to the contrary.) The report further said that in hard cases, the risk that a commission would return a split decision was unacceptably high. If a commission returned a 4-3 vote either to remove to retain the president, it would shatter the legitimacy of whoever held presidential powers afterward: “[T]he effect on the international position of the United States might well be catastrophic.” Nevertheless, the amendment would give Congress authority to empower another body, providing “flexibility for the future.”

Section 5 (which was reorganized under Section 4 in conference committee) provides that the president may resume the office by submitting a written declaration to the speaker of the House and the president of the Senate that no disability exists. If the vice president and a majority of the Cabinet disagree with the president’s judgment, then they must give a written declaration to the House speaker and president of the Senate within two days. Congress must then decide within 10 days whether the disability persists; a two-thirds vote of both houses can override the president’s determination. (Peculiarly, the report cites the impeachment provision of Article 1, Section 3, Clause 6 as the basis for the two-thirds threshold, even though impeachment requires only a majority of the House and two-thirds of the Senate.) Otherwise, the president resumes office.

But the views that the House and Senate committees put forward were not without dissent; rather, both included memos from individual members who disagreed with the structure of the amendment. Perhaps most notable were two warnings from Rep. J. Edward Hutchinson. Regarding Section 4, he noted: “The language of the resolution offers no hint that the determination of inability shall be based on medical or psychiatric evidence. Instead, the determination will be a political one” (Page 19).

Perhaps more gravely, Hutchinson feared that the mechanism of Section 4 risked significantly destabilizing the executive branch. A president’s credibility would be pitiful if his or her assertion of ability was sustained by more than a third but less than a majority of Congress. Moreover, as Brownell had noted almost a decade earlier, the Cabinet and vice president might try to remove the president once again. The president could remove executive officers, but doing so would leave Cabinet offices unfilled and disrupt the function of those departments.

After reorganization but no substantive changes in conference committee, and over the objections of Hutchinson and a few others, the bill cleared both the House and Senate with the requisite supermajorities on July 6, 1965. It was ratified by its 38th state on Feb. 10, 1967.

* * *

In September, Jane Chong observed two myths about impeachment: that the process is purely political, and that the House cannot begin considering it without clear evidence of criminality. One can say something similar about the 25th Amendment. The process is not purely political, though the final mechanism is a political process. And there’s no particular threshold that needs to be reached before the relevant body — in this case the Cabinet — starts thinking about it. That said, objective criteria like medical considerations should be at the fore. (A 1983 Miller Center commission co-chaired by Sen. Birch Bayh and Brownell endorses the view that science should be central to the judgment.) And a Cabinet should always be vigilant about signs of presidential disability; it is the constitutional duty of Cabinet officers.

Each citizen should draw his or her own conclusion about presidential disability. But make no mistake: Invoking Section 4 would have a dramatic and potentially dangerous effect on our politics. Even if meticulously executed, the process is fraught with political pitfalls that could further undermine divisions among the public and legitimacy in U.S. institutions.

So, although Bannon might have been right that the 25th Amendment could pose a real threat to the Trump presidency, it should give the president’s political opponents little, if any, solace.

Matthew Kahn is an associate editor at Lawfare and a research assistant in governance studies focusing on national security law at the Brookings Institution.




ANOTHER REPUBLICAN IS INVOLVING HIMSELF. THAT'S GOOD. IMPEACHMENT OR THE25TH AMENDMENT SHOULD BE INCLUSIVE OF BOTH PARTIES.

http://philadelphia.cbslocal.com/2017/10/11/expert-casts-doubt-someone-is-building-case-to-invoke-25th-amendment/
Constitutional Expert: Unlikely Someone Is Building Case To Invoke 25th Amendment
October 11, 2017 5:04 PM By Pat Loeb

PHILADELPHIA (CBS) — CBS Radio alumnus Michael Smerconish, this week, suggested that Sen. Bob Corker’s comments about the White House were intended to “plant the seeds” for a 25th Amendment removal of President Donald Trump. The city’s leading constitutional expert finds that unlikely.

The 25th Amendment passed in 1967 after an illness by President Eisenhower and the assassination of President Kennedy to allow the vice president to take over in the event the president is disabled.

Constitution Center President Jeffrey Rosen says it’s been invoked three times, voluntarily by President Reagan when he was shot and President Bush twice during medical procedures. But it includes a clause that lets the vice president and cabinet decide if he’s too disabled to serve.

Paris-Inspired ‘Hope Fence’ Goes Up Along Philadelphia Waterfront

“The determination of the president’s disability is really a political question,” Rosen said. “So that means that the cabinet and the vice president decide what disabled means. It’s not a decision for doctors. It’s not ultimately a medical decision. It’s basically a question of whatever the vice president and cabinet think.

Rosen says the president can object. Then it goes to Congress and two-thirds of both houses must vote to remove him, a higher standard than impeachment which requires two-thirds of the Senate and a majority of the House.

“It’s easier to impeach than invoke the 25th Amendment,” Rosen said, “which is why no president has ever been removed under the disability provision of the 25th Amendment.”
Pat Loeb


WAITING FOR THE LAST SHOE TO DROP, ARE WE?

http://sanfrancisco.cbslocal.com/2017/08/21/trump-medical-evaluation-25th-amendment-lofgren/
Lofgren Calls For Trump To Undergo Medical Exam After ‘Disturbing’ Actions
August 21, 2017 8:04 AM

SAN JOSE (CBS SF) – A San Jose congresswoman Friday introduced a resolution urging the U.S. vice president and Cabinet to have President Donald Trump examined by medical professionals to see whether he’s fit for duty.

Rep. Zoe Lofgren, D-San Jose, said in a statement, “Many Americans, including many Republicans, have observed the president’s increasingly disturbing pattern of actions and public statements that suggest he may be mentally unfit to execute the duties required of him.”

Lofgren’s office said she is urging the vice president and the Cabinet to fulfill their duties under the 25th Amendment of the Constitution to have the president checked by medical and psychiatric professionals to help them determine whether President Trump is healthy enough to serve.

Lofgren’s office said that under Section Four of the Constitution’s 25th Amendment the vice president would become acting president if the president were too ill to serve.

Lofgren’s resolution suggests that the president may be suffering from a mental disorder that has rendered him unable to fulfill his obligations to citizens of the country.

© Copyright 2017 by CBS San Francisco and Bay City News Service. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


TO BE OR NOT TO BE INSANE

https://www.cbsnews.com/news/an-obscure-way-to-oust-an-american-president/
By WILL RAHN CBS NEWS January 26, 2017, 6:00 AM
Commentary: An obscure way to oust an American president

Photograph -- U.S. President Donald Trump (R) and Vice President Mike Pence (C) attend a ceremonial swearing-in for U.S. Homeland Security Secretary John Kelly (L) at Homeland Security headquarters in Washington, U.S., January 25, 2017. REUTERS/JONATHAN ERNST - RTSXCQV

The United States has had a number of presidents who likely struggled with some form of mental illness. Abraham Lincoln, for example, endured bouts of “melancholy” so severe that today he would almost certainly be diagnosed with clinical depression. On the less extreme end of the spectrum, Richard Nixon and Jack Kennedy both took psychiatric medications while in office.

That brings us to our just inaugurated, famously colorful, and sometimes erratic new president, Donald Trump. And while there’s no way to say conclusively whether Trump is mentally unwell, there’s no shortage of detractors who insist he must be.

“I am increasingly convinced he is just plain crazy,” The Washington Post’s Eugene Robinson wrote last August. On Tuesday, The New York Times’ Paul Krugman tweeted that Trump is “obviously mentally ill.” In 2015, several mental health professionals told Vanity Fair they believed the then-businessman was mentally unbalanced. “Textbook narcissistic personality disorder,” said one.

Play VIDEO
Why is Trump investigating an election he won?

Regardless of whether Trump is suffering from some kind of mental ailment, the Constitution does provide a manual for what to do in case of presidential incapacity in the form of the 25th Amendment. In particular, a provision within Article 4 of the amendment lays out how a president can be forced to surrender his powers should he be ruled unable to fulfill his duties.

First, a little history. The question of what happens when a president is unable to fulfill his duties has been with us since the founding, and was originally addressed by Article II, Section I, Clause 6 of the Constitution, which mentions the vice president taking charge in case of presidential “disability.”

It was a vague standard, and likely vague on purpose. “What is the extent of the term ‘disability’ and who is to be the judge of it?” asked Delaware delegate John Dickinson during debate at the Constitutional convention.

The 25th Amendment, adopted in 1967, sought to answer that question. It is the longest amendment adopted since the Civil War, yet remains a bit obscure – in the aftermath of the assassination attempt on Ronald Reagan, many cabinet members were said to be unaware of its contents.

Article 1 of the Amendment states that the vice president will become president should the incumbent either die or resign, which was enacted when Nixon was forced from office and Gerald Ford took power. Article 2 allows a president to nominate a vice president in case of a vacancy of that position, which Ford used to name Nelson Rockefeller, who was then confirmed by Congress.

Article 3, which stipulates that the president can temporarily discharge his duties to the vice president, has also been used on several occasions, most recently in 2007 when George W. Bush underwent a colonoscopy and briefly transferred his powers to Dick Cheney.

Then comes Article 4, which has never been used. It stipulates how a vice president, together with a majority of the cabinet, can inform Congress that the president is “unable to discharge the powers and duties of his office.” Should that happen, the vice president becomes “acting president.”

Things get tricky, however, when the president disagrees that he’s incapacitated, decides to fight to remain in office, and informs Congress that he’s fit to serve. In that case, assuming they want to pursue the matter, the vice president and the majority of the cabinet have four days to tell Congress that the president is indeed unwell, and can’t function in office.

Play VIDEO -- Trump will announce Supreme Court pick next week

Should that happen, Congress has 21 days after assembling to decide whether the president is well enough to discharge the duties of his office. A two-thirds majority in both houses is then required to remove the president and make the vice president the acting president.

This is complex, and for good reason: nobody wants a coup to take place under the guise of Constitutional government. But if Robinson and company are correct that Trump is “crazy,” it is plausible, although extraordinarily unlikely, that his own cabinet and vice president could give him the boot.

But proving the president is unstable would be enormously difficult.

If Mr. Trump were suffering from a physical ailment, and the White House physician testified to that fact, the matter would be relatively cut-and-dry. Mental illness, however, is a much more subjective matter.

“How do you demonstrate someone is psychologically unsound?” Robert Gilbert, a professor at Northeastern University and an authority on the 25th Amendment, told CBS News.

This is a question with no clear answer in the Constitution, and could invite a nightmare scenario of dueling teams of psychiatrists testifying before Congress, and in front of the world, about a president’s fitness to serve.

Whether the 25th Amendment was prepared to deal with the prospect of a mentally ill president became a topic after Reagan revealed his Alzheimer’s diagnosis in 1994. The following year, Jimmy Carter convened a symposium to discuss the issue, and offered his own recommendation: that a panel of preeminent physicians should be the ultimate arbiter of whether the president is incapacitated.

While conceding that Carter’s proposal had its merits, former Sen. Birch Bayh, who helped draft the amendment, argued that it was impractical. For one thing, as noted earlier, mental illness can be exceptionally difficult to diagnose. For another, there are questions at stake – political ones – that doctors are not qualified to make a determination.

“The vice president and the cabinet were given their responsibilities under the Twenty-fifth Amendment because they are personally familiar with whether or not the president is doing his job,” Bayh, an attendee at the symposium, wrote later in 1995.

“They are in a position to assess the alternatives and the gravity of the governmental circumstances at that time.”

Play VIDEO -- Even Republicans mystified by Trump's voter fraud claims

Another reason Article 4 has never been invoked is how politically perilous it is for the people doing the invoking.

There’s a strong case the Article should have been used after the assassination attempt on Reagan, which briefly incapacitated him. But his vice president, George H.W. Bush, who was away at the time, never considered doing so, and for understandable reasons. “No vice president wants to be seen as someone trying to look like someone grasping for power,” Gilbert notes.

There’s a lesson there for Mike Pence, should he ever take a look at Article 4 and start thinking it might be wise to ascend to the presidency a little early: failing in that effort would end his career, not to mention the careers of the secretaries who sign up to help him. That alone is a powerful incentive to avoid using the law.

So while it’s plausible that this president could be removed from office for reasons of mental illness, it’s still exceptionally unlikely he would. And, in any event, Mr. Trump would have to get a whole lot weirder than he’s been already before anyone could start seriously thinking about Article 4.

“It would have to be very bizarre behavior by the president,” Gilbert says. “More bizarre than what we’ve seen.”

© 2017 CBS Interactive Inc. All Rights Reserved.



https://www.cbsnews.com/news/house-panel-approves-amendment-that-would-strip-trumps-war-authorization-powers/
By KATHRYN WATSON CBS NEWS June 29, 2017, 8:05 PM
Key House committee approves curbing Trump's war authorization powers

Photograph -- WASHINGTON, DC - JUNE 28: US President Donald Trump speaks as he meets with immigration crime victims to urge passage of House legislation to save American lives, in the Cabinet Room at the White House on June 28, 2017 in Washington, DC. POOL / GETTY IMAGES

Last Updated Jun 30, 2017 3:48 PM EDT

A key House committee on Thursday approved an amendment that could dramatically curb the president's ability to authorize military force without congressional approval.

The House Appropriations Committee voted to repeal the AUMF, or authorization of military force, which was set in motion after the Sept. 11th terrorist attacks. To become law, it would need to pass the full House, Senate and be signed by President Trump.

The Bush-era AUMF granted the president broad powers to retaliate against anyone who contributed to the Sept. 11, 2001 terrorist attacks, and that authorization has provided the foundation for U.S. military intervention abroad ever since. It hasn't changed in more than 15 years.

The House panel on Thursday approved an amendment from Rep. Barbara Lee (D-Calif.) to sunset the AUMF as a part of the Department of Defense's budget for next year. If that amendment stays in the bill, and is approved by the House, Senate and signed by the president, it will drastically scale back Mr. Trump's ability -- and future presidents' ability -- to carry out military intervention without Congress' explicit OK. The committee's voice vote approving the amendment was nearly unanimous.

View image on Twitter
View image on Twitter
Follow
Rep. Barbara Lee ✔@RepBarbaraLee
Whoa. My amdt to sunset 2001 AUMF was adopted in DOD Approps markup! GOP & Dems agree: a floor debate & vote on endless war is long overdue.
11:55 AM - Jun 29, 2017
950 950 Replies 7,060 7,060 Retweets 17,463 17,463 likes
Twitter Ads info and privacy

The 2001 AUMF declares "the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Mr. Trump's administration has used those broad powers to do things like strike a Syrian airbase in response to a deadly chemical weapons attack believed to be perpetrated by Syria's president, Bashar al-Assad.

Play VIDEO -- Behind the scenes of the U.S. Navy's Syria strike

Lee's amendment -- something she has introduced every year -- would sunset the AUMF 240 days after the appropriations bill is signed into law, should the amendment stay in the bill. Congress would need new authorization to replace the AUMF, something it hasn't been able to pull off in the past.

The amendment is likely to face more of an uphill battle in future legislative battles, and backlash from the Trump administration, which is unlikely to welcome a move to curb the president's war powers. The most immediate challenge could come in the House.

"There is a way to have this debate, but this, which endangers our national security, is not it," said AshLee Strong, Ryan's spokesperson.

CBS News' Walt Cronkite and Catherine Reynolds contributed to this report.

© 2017 CBS Interactive Inc. All Rights Reserved.



“NEVER STRIKE A KING UNLESS YOU ARE SURE YOU SHALL KILL HIM.”

https://www.washingtonpost.com/news/posteverything/wp/2017/10/19/how-do-you-get-rid-of-trump-an-election-not-the-25th-amendment/
How do you get rid of Trump? An election, not the 25th Amendment.
The provision is in place in case a president becomes incapacitated, not to eject him from the White House if he’s loathed by the majority.
By Jonathan Turley October 19, 2017

Follow @JonathanTurley
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

Photograph -- President Trump sits for an interview in the White House complex’s Eisenhower Executive Office Building on Oct. 17. (Jabin Botsford/The Washington Post)

It appears that just as impeachment fever had started to break around the country, a 25th Amendment bug started going around. A few weeks ago, the University of Chicago’s Eric Posner argued that the “conventional understanding” of the amendment should be “enlarged” to include instances where both parties “lose confidence in the president’s ability to govern.” A Los Angeles Times reader asked, in a letter to the editor, “Why have a 25th Amendment to the U.S. Constitution if we refuse to use it” when “President Trump wrecks everything in his path?” The chatter is loud enough that, reportedly, Trump-whisperer Steve Bannon privately warned the president that opponents might try to use the 25th Amendment as a way to oust him. Trump reportedly asked him, “what’s that?”

He’s not the only one looking up the amendment, but if, as I’ve argued, impeachment would be a mistake, removing Trump via the 25th Amendment would be a disaster for our system. For Trump’s agonists, there’s an obvious solution; one they seem intent on avoiding: If you can’t stand the president, then the proper fix is electing someone else.

Sandwiched between the prohibition against poll taxes and right to vote for 18-year-olds, the amendment detailing presidential succession fills a gap in the original Constitution. Until 1967, there was far greater uncertainty over the question of when and under what circumstances a president could be succeeded in office. The issue of “disability” of a president “and who is to be the judge of it?” was raised in the Constitutional Convention in 1787 by Delegate John Dickinson of Delaware, but left unanswered. The first presidential succession ambiguity arose when President William Henry Harrison died a few weeks after taking office and former Vice President John Tyler struggled to be seen by critics as the appropriate successor — throughout his presidency, critics referred to Tyler as “His Accidency.”

Members of Congress pondered the succession question after President Dwight D. Eisenhower suffered a stroke. They ultimately, if not exhaustively, dealt with the issue via the 25th Amendment after the assassination of President John F. Kennedy. There was finally a sense of urgency as members realized that, had Kennedy lived on, incapacitated, it was not clear that Vice President Lyndon B. Johnson could assume office.

What entices Trump critics now, however, aren’t the amendment’s provisions in Section 1 and 2 for the orderly succession of power “In case of the removal of the President from office or of his death or resignation.” Nor is it Section 3, which allows for temporary transfer of presidential authority when the president “transmits” his own “declaration” of temporary disability (as when George W. Bush underwent a “routine colon examination” and invoked the amendment to allow his vice Dick Cheney to briefly take over). Rather, it is Section 4’s provision for a less orderly, and permanent, removal from power. This prospect has been floated by those who acknowledge that impeachment in the House of Representatives is highly unlikely without a clear “high crime” or “misdemeanor” — not to mention a two-thirds majority needed for conviction in the Senate. Impeachment, though, is a constitutional cake walk in comparison to a Section 4 removal.

Section 4 has, essentially, two avenues for dragging a president from the Oval Office. First, there is the mutiny option. A vice president and a majority of the Cabinet can agree that the president is “unable to discharge the powers and duties of his office” and notify Congress that the vice president intends to take over. If Vice President Pence could get eight Cabinet officers to sign a letter to that effect, he would immediately become the “Acting President.” But if the president then declares to Congress that “no inability exists,” Trump could resume his powers.

Pence and the rebellious Cabinet would then have to send another declaration within four days to the President pro tempore of the Senate and the Speaker of the House that says, more or less, don’t believe a word, he’s unfit. Once Congress had the second declaration, if not already in session, it would have 48 hours to assemble to debate the issue. It would then have 21 days to vote on the president’s fitness. To remove the president, two-thirds of both houses would have to agree. If Congress did not vote within 21 days, the president would get his power back.

[What’s worse than leaving Trump in office? Impeaching him.]

Impeachment only requires a majority vote in the House and doesn’t need the cooperation of the vice president in addition to a two-house, two-thirds vote. In a climate where members of Congress struggle to cobble together a simple majority on replacing Obamacare, a supermajority to remove Trump seems a tad optimistic, and politically risky: Cabinet members would do well to remember Emerson’s adage, “Never strike a king unless you are sure you shall kill him.” With a president made famous by the catchphrase “you’re fired,” there’s not much doubt as to one’s political future if you sign a Section 4 declaration and fail.

Which brings us to option two. Section 4 states that a decision to remove the president could be made, alternatively, by “such other body as Congress may by law provide.” This is the course Rep. Jamie Raskin (D-MD) has sought with proposed legislation to create an “Oversight Commission on Presidential Capacity”—a body to decide if the president is physically and mentally fit. But even in the unlikely event that Republicans supported this approach, the process still calls for the vice president’s assent, and it’s even less likely that Pence would stake his political fortunes on dumping Trump.

More importantly, any disability review commission would be tasked with finding a mental or physical disability — unlikely. A group of self-declared “mental health professionals and members of the public” called Duty to Warn recently marched to call for a 25th Amendment removal on the supposition that Trump has an incurable malignant narcissism and “is too seriously mentally ill to competently discharge his duties as the president.” Narcissistic Personality Disorder is defined as “grandiosity, a lack of empathy for other people, and a need for admiration,” which, indeed, describes Trump. But let’s face it: If we started removing public servants because they were narcissists, the nation’s Capital might become a virtual ghost town. In D.C., the question isn’t who fits that definition? but, who doesn’t?

Moreover, declaring the president unfit without an examination runs counter to the American Psychiatric Association’s “Goldwater Rule” that doctors cannot express professional opinions about public figures they have not personally examined.

Attempting to discern incapacity, particularly at a distance, is a slippery slope. Psychology Today reported last year that one study of the first 37 presidents suggests half of them experienced some form of mental illness. Kennedy had a number of physical ailments that were hidden from the public and intermittently took a secret regimen of drugs prescribed by doctor sometimes called “Dr. Feelgood,” but few would suggest that he was not up to the job of president of the United States.

For many, Trump’s routine tweets and taunts, and his untoward exchanges with more than one grieving gold star family, seem not just un-presidential, but unhinged. I have been critical of many of those comments and find them deeply disturbing. The standard, however, is whether Trump is “unable to discharge” his duties, and there is no evidence of a clinical condition that renders Trump unable to perform them.

When no less a figure than Sen. Bob Corker (R-TN), an influential Senate committee chair once seen as a Trump ally, refers to the White House as “adult day care,” or when Secretary of State Rex Tillerson reportedly calls the president a “moron,” many are hoping that core Republicans are looking for an exit ramp. However, Section 4 is not about childish or boorish presidential comportment. It is about a disability that prevents a president from carrying out capable decision-making. The Constitution only requires Trump to be able to discharge his duties; not necessarily to discharge them well. The fact is that Trump exhibited most of the traits he exhibits today during his campaign and his long business and television careers. He is as he advertises and slightly more than one-third of Americans still support the president. For them, the controversy is about style, not sanity.

Absent more compelling evidence of incapacity, Trump’s continuation in office will remain a political, not a constitutional condition, triggered by the very cause that is also its cure: a presidential election.


* * * * * * * * * * * * * * * * * * * * * * * * * * * *


GENERAL NEWS FOR THE DAY

https://www.cbsnews.com/news/niger-ambush-joint-chiefs-address-attack-live-stream-updates/
CBS NEWS October 23, 2017, 4:03 PM
Chairman of the Joint Chiefs of Staff discloses details about Niger ambush

Play VIDEO -- What we do and don't know about the Niger attack

He said it was fair to conclude that it was about two hours between the time initial contact was made with the enemy to the time the initial French Mirage jets arrived on scene. He added that he couldn't "definitively" say how far Johnson's body was from the initial site of contact.

Chairman of the Joint Chiefs Gen. Joseph Dunford disclosed details Monday about the ambush in Niger earlier this month that left four U.S. soldiers dead, as the Trump administration faces questions about a lack of transparency.

Dunford explained that U.S. troops have been in Niger -- off and on -- for more than 20 years, and that since 2011, French and U.S. troops have trained a 5,000-person West African force to fight terrorists. Currently, 800 U.S. troops are based in the region, Dunford said. They are focused on defeating violent extremists such as Boko Haram, al Qaeda and the Islamic State of Iraq and Syria (ISIS), Dunford said.

On Oct. 3, 12 members of the U.S. Special Operations Task Force accompanied 30 Nigerian forces on a civil reconnaissance mission to gather information near the area of Tongo Tongo. The assessment, Dunford said, was that contact with the enemy was "unlikely."

On the morning of Oct. 4, U.S. and Nigerian forces began moving back south en route to their operating base and the patrol came under attack from about 50 enemy combatants using small arms fire, rocket-propelled grenades and technical vehicles, Dunford said. He said he didn't have any reports of any IEDs being used. Dunford described the fighters as an "ISIS-affiliated group" or local tribe fighters associated with ISIS.

After an hour of U.S. and Nigerian forces taking fire, the team requested support, Dunford said Monday. Within minutes, a remotely-piloted aircraft, he said, appeared overhead, and within an hour, French jets arrived. Later in the afternoon, French attack helicopters arrived and a Nigerian quick reaction force.

Dunford said that during the firefight, two U.S. soldiers were wounded and evacuated by French aircraft, which was consistent with the evacuation plan in place for that operation. Three U.S. soldiers who died were evacuated on the evening of Oct. 4 and at that time, Sgt. La David Johnson was still missing. On the evening of Oct. 6, his body was found and evacuated.

The White House was notified, Dunford said, as soon as they knew a U.S. soldier went missing.

Play VIDEO -- What we do and don't know about the Niger attack

He said it was fair to conclude that it was about two hours between the time initial contact was made with the enemy to the time the initial French Mirage jets arrived on scene. He added that he couldn't "definitively" say how far Johnson's body was from the initial site of contact.

Dunford said that the U.S. team found themselves in a "very complex situation" and the first thing military officials will do once the investigation is complete is visit the victims' families in their homes with a team of experts and share all of the facts.

One element the Pentagon plans to investigate, Dunford explained, was whether the mission changed and if the joint U.S.-Nigerian patrol decided to do something different.

He said that as part of the investigation, there will be people on the ground retracing their steps and measuring the distances between each site in order to provide detailed graphics of how the attack happened and how it unfolded.

© 2017 CBS Interactive Inc. All Rights Reserved.


WHILE POOR KIDS MUST STRUGGLE TO BE AT COLLEGE AT ALL, THESE PRIVILEGED KIDS DO “PRIVILEGED-LEVEL” MISBEHAVING, AND THE COLLEGE LOOKS AWAY.

https://www.cbsnews.com/news/penn-state-fraternity-beta-theta-pi-criticized-renting-rooms-timothy-piazza-death/
CBS NEWS October 23, 2017, 7:48 AM
Outcry after rooms apparently rented at Penn State frat where pledge died

Photograph -- The Beta Theta Pi fraternity house at Penn State, in State College, Pa. CBS NEWS

Cars filled the parking lot of Penn State's Beta Theta Pi house this weekend as alumni returned to the now-defunct fraternity house, some in Nittany Lion gear ahead of Saturday night's football game.

The university shut down the chapter in March, after 19-year-old Timothy Piazza died from injuries he suffered after drinking a large amount of alcohol while pledging at the Beta Theta Pi fraternity.

Fourteen fraternity members face charges.

penn-state-frat-beta-theta-pi-620.jpg, The Beta Theta Pi fraternity house in State College, Pa.. CBS NEWS

Information obtained by CBS News appears to show Beta Theta Pi alumni can rent rooms at the disbanded fraternity house in State College, Pa., for $50-$350 a night on football weekends.

The group of alumni that runs the property says, despite renting out the rooms at this house, the alumni "grieve" for the Piazzas, too.

Officials from Penn State called it "insensitive," and the local newspaper said it's "too soon."

The Piazza family says they feel like the alumni are dancing on their son's grave. "It's offensive; it's disgusting," Evelyn Piazza told correspondent Jericka Duncan.

Jim Piazza added, "That was a crime scene. They shouldn't be there. That house should be shut down and repurposed."

Jim and Evelyn's son, Timothy, died last February after an alleged hazing ritual involving heavy drinking at the frat house. Shortly after, Penn State removed Beta Theta Pi from the school's Greek system, though the property is owned by the chapter's alumni through a housing corporation.

PHOTOGRAPHS --
Penn State fraternity pledge's family calls hazing death "murder" and "torture" ("CBS This Morning," 05/15/17)
Video shows Penn State pledge stumbling before death (CBS News, 08/10/17)
Detective in Penn State hazing death testifies that video was purposely deleted ("CBS This Morning," 08/11/17)
Parents of Timothy Piazza: Penn State Greek life reform "a good start" ("CBS This Morning," 08/23/17)

CBS News also obtained court documents that include letters and emails about Piazza's death to fraternity alumni dating back to last Spring. In a May 18th letter, an attorney for the housing corporation disputed the claim Piazza died as a result of a "hazing ritual," and went on to say, "in fact, there was no 'hazing ritual.'" That attorney did not respond to our request for comment.

Other communications reveal the housing board vowed to "fight" for the chapter's "existence" … and brothers were asked for funds to help with legal fees.

In a recent statement, the Housing Corporation said the money made on football weekends will not be used for "the defense of the Chapter or the undergraduate members who have been charged with an offense by the Commonwealth of Pennsylvania, The Penn State University or the General Fraternity of Beta Theta Pi."

One brother told CBS News that, while he feels terrible about the tragedy that occurred there, banning the use of the house would be like "taking my history and erasing it."

"There's this weird dichotomy of who's able to use the house and why," said Penn State junior Alison Kuznitz, a reporter for the Daily Collegian. "I think the alumni are saying, 'This is our brotherhood. We can continue to, like, re-live our memories here.'"

"I think it just goes to show the arrogance of some of the alumni," said Jim Piazza. He believes opening Beta Theta Pi to alumni is difficult for Tim's older brother, Mike, who's a senior at Penn State. "We have another son there," Jim said. "He has to hear about it. Think about his feelings."

Penn State overhauled its Greek life rules following Piazza's death. But already this semester, at least one fraternity has been suspended and another is facing charges for alcohol-related incidents.



THIS IS GOOD ADVICE FROM PANETTA, BUT I AM PRETTY SURE AT THIS POINT, THAT THE PRESIDENT DOESN’T HAVE THE SELF-CONTROL OR, PERHAPS, THE USE OF LANGUAGE THAT ARE NEEDED. THE LONG TERM IS THE IMPORTANT PART. I DON’T THINK I WILL RELAX AGAIN UNTIL TRUMP IS NO LONGER IN OFFICE, ONE WAY OR THE OTHER.

https://www.cbsnews.com/news/leon-panetta-urges-trump-to-lower-the-volume-of-rhetoric-on-north-korea/
By EMILY TILLETT CBS NEWS October 23, 2017, 1:30 PM
Leon Panetta urges Trump to "lower the volume of rhetoric" on North Korea

Photograph -- Former Secretary of Defense and director of the Central Intelligence Agency Leon Panetta CHIP SOMODEVILLA / GETTY IMAGES

Former Defense Secretary Leon Panetta said on Monday that he's concerned about the verbal exchanges between President Trump and North Korean dictator Kim Jong Un, saying it would be "far better to lower the volume of rhetoric" and instead focus on longer term strategies in the region.

Speaking in Washington at the Hudson Institute's conference on Countering Violent Extremism, Panetta said the rhetoric that Mr. Trump has directed at Kim only "increases the tensions level in Korea."

"The tension has risen a great deal, and with that tension is the concern about a miscalculation or mistake that will ultimately escalate into a greater conflict," said Panetta.

He suggested that the administration should now focus on "developing our strength and capacity in the region," which he said would include "better containment, greater deterrence and trying to deal with sanctions that can really have an impact on North Korea and its economy."

Panetta said pressuring China to influence the North Koreans and get them to negotiate has "not proven very effective," but urged pushing for tougher sanctions on the regime.

"I do think that if China is willing to restrict oil shipments and deal with some of the other commerical [sic] areas they deal with in North Korea, it can have an impact on the North Korean's economy," said Panetta.

He also suggested an increase of military presence in the region and an ongoing support and development of security in South Korea and Japan, including developing a missile shield that can bring down any ICBMs launched toward the U.S. and its allies.

While Panetta said it was a "dangerous world" that we currently live in, it's also one that "demands very strong U.S. leadership" to counter the "huge number of flash points" globally.

With regard to Iran, Panetta would not say exactly where he stood on Mr. Trump's decision to de-certify the Iranian nuclear agreement, only saying "we ought to continue to enforce the agreement." But Panetta did say he was concerned about Mr. Trump punting the plan to Congress.

"I'm a little concerned about that because Congress is having a hard time sometimes finding its way to the bathroom...I think [it is] far better for the administration, for the president to deal with these issues," said Panetta.

He added, "I think now Congress should hopefully a develop a way to increase the enforcement of that agreement [with Iran] and tie sanctions to the enforcement of it."

"If you fail to stick to your word, it sends a clear message to others that as a result of that, you can not trust America as a partner," Panetta said of the agreement.

When asked to give an overall assessment of the Trump administration and Washington, D.C., Panetta said that he's never seen Washington in such dysfunction as it is today.

"Both parties are in the trenches and don't want to come out and work together, and when they do they run in to barriers of one kind or another. This country will only survive if our democracy is able to find consensus and compromise…that's the essence of how our democracy works, and it operates by leadership or by crisis – if leadership is there and willing to take the risk…then we can avoid crisis…if not we will govern by crisis, and that's largely what we do today, so ultimately leadership has to step up," Mr. Panetta said.

In the end he believes that change is going to come from the bottom up with a newly elected generation of leaders who actually want to govern and not just fight one another.

CBS News' Katie Ross Dominick contributed to this report.

© 2017 CBS Interactive Inc. All Rights Reserved.



THE SURVEILLANCE VIDEO SHOWS A PRETTY CLEAR VIDEO OF A MAN WALKING IN A RELAXED WAY IN THE AREA OF ONE OF THESE ATTACKS. HE HAD ON THE INEVITABLE GREY HOODIE AND MOVED LIKE HE IS YOUNG. THAT PERSON COULD BE INNOCENT, OF COURSE, BUT THEY HAVE TO TRY TO FIND HIM AND QUESTION HIM. HIS VICTIMS DON’T SEEM VERY MUCH ALIKE TO ME, SO THEY COULD BE VICTIMS OF CONVENIENCE. I HOPE THEY CATCH HIM SOON.

https://www.cbsnews.com/news/report-tampa-cops-escort-kids-to-bus-stops-amid-serial-killer-fears/
By CRIMESIDER STAFF CBS NEWS October 23, 2017, 1:06 PM
Tampa cops monitor school bus stops amid serial killer fears

TAMPA — Police in Tampa's Seminole Heights neighborhood monitored school bus stops Monday, while fanning across the area in search of a man they believe may be associated with as many as three murders in 11 days,

The Tampa Police Department gave officers a list of bus stops in the neighborhood, as well as pick-up times, and vowed to keep watch over students, Tampa police spokesman Stephen Hegarty told CBS News.

The neighborhood has been on high alert after the shooting deaths of three people who had no apparent links to each other.

Tampa Police Chief Brian Dugan believes the killings are connected based on their close proximity and time frame. However, Dugan is refraining from labeling the unknown suspect as a serial killer.

"I'm very cautious of that term because we don't have enough information," Dugan told CBS News. "You know, we don't know. It could be multiple people."

Police are looking for an individual seen in surveillance video strolling through the neighborhood, wearing a hoodie, on the night of the first murder.

Photograph -- surveillance-video-tampa.jpg; An image taken from security camera video shows an unidentified man walking in Tampa, Florida's Seminole Heights neighborhood on Oct. 9, 2017, the night Benjamin Mitchell was killed. Tampa police believe that and two other murders are connected.

"We have no leads," Dugan said over the weekend. "We have no motive."

What police do have is a disturbing pattern; three victims, strangers to each other but shot in the same area, in the same time frame.

On October 13, 32-year-old Monica Hoffa's body was found in a vacant lot. Four days earlier, 22-year-old Benjamin Mitchell's body was found less than a mile away.

On Thursday, police found the body of 20-year-old Anthony Naiboa, who was shot after taking the wrong bus home from work, about 100 yards from where Mitchell was killed.

At a vigil on Sunday evening, Naiboa's father, Casimir, pointed to a place on the ground: "He was right on this floor, right here. They killed him just for nothing. Like he's not a human, like he's nothing."

Patrol officers are canvassing the streets, hoping to find the killer and ease the community's fear. The police were to hold a community meeting with residents Monday evening to talk about the murders, and how to stay safe.

Play VIDEO -- Tampa mayor on search for a possible serial killer

Speaking on CBSN Monday, Tampa Mayor Bob Buckhorn said officers have been "saturating" the neighborhood for 10 days and said the community, though fearful, has been helpful in the investigation.

"We really have activated and energizing the neighborhood to take ownership of their streets – they're not going to give up, they're not going to let evil win this," Buckhorn said. "They're going to take back their streets and we're going to be right there with them, looking for every suspect, looking for every clue. We're not leaving here until we get this guy."

He said investigators were using technology to aide in the search, but said he wouldn't detail how.

Correction: This story has been updated to reflect that police are monitoring school bus stops in Tampa, not escorting children to and from those stops.

© 2017 CBS Interactive Inc. All Rights Reserved.