Tag Archives: 25th Amendment

Republicans Berserk Over Anonymous NYT Op-Ed

This morning I awoke to find that Scott Jennings, “a CNN contributor, former special assistant to President George W. Bush, former campaign adviser to Sen. Mitch McConnell and currently a partner in a PR firm he co-founded in Kentucky, had published through CNN an attack on the decision of an anonymous Trump administration official to publish through the New York Times a statement about the chaos and malfunction in the Office of the President of the United States.

First, I want to acknowledge that Mr. Jennings is a very smart and accomplished person. His brief bio on CNN.com does not reveal that he is a Resident Fellow to the Harvard Institute of Politics. He had roles in both of President Bush’s campaigns in 2000 and 2004, before becoming Special Assistant to the President and Deputy White House Political Director in 2005. Among other things, his office advised the president on many issues. Jennings has helped elect U.S. Senator Mitch McConnell (’02, ’08, ’14), among others.

He also knows how to spend money in politics. In 2014, Jennings served as senior advisor to a Super PAC that spent millions supporting the re-election of McConnell. He also served in a similar role for the Kentucky Opportunity Coalition, a 501(c)4 non-profit that has spent millions of dollars on “issue advertising” in Kentucky since 2013. This biography makes clear that Jennings is a hard-core Republican operative with a likely interest in backing an imperial view of the president’s position.

The anonymous New York Times op-ed is by turns shocking/disturbing/terrifying (take your pick or all of them) in its acknowledgement of the disfunction in the White House led by an erratic and untrustworthy person but also reassuring to a limited degree in its contention that there are “adults in the room” taking care of the nation’s business when the president goes off the rails.

Note also a point largely overlooked in the breathless analysis of the event: “many Trump appointees have vowed to do what we can to preserve our democratic institutions while thwarting Mr. Trump’s more misguided impulses until he is out of office.” If true, the op-ed author is not alone in resisting the president. Also note that the author says the root of the problem is the “the president’s amorality,” and that he is “not moored to any discernible first principles that guide his decision making.” These comments support the view, often stated in press interviews, that Trump makes up everything as he goes along, based on some internal belief that he is a “stable genius” and knows more than all the experts that surround him in Washington.

The Republican establishment is going berserk over the idea that a high administration official would speak anonymously about the situation in the White House. Remarkably, many Republican voices are a chorus on the point that “we all knew Trump was bonkers” so there’s no news here. Their big objection is that someone close to the president has anonymously admitted to actively resisting Trump to prevent him from damaging the national security of the United States. Their view is that this person should instead resign his/her position and then shut up so the president can go about his business in any way he likes.

That appears to be the core of Jennings’ objections to the op-ed: “These statements are alarming, of course, because of the “senior” level status of the government official purported to have written them.” In other words, if the op-ed had been produced by a low level employee, who cares?

“But they are also alarming.” Jennings continued,

“because an anonymous, unelected government appointee is substituting his or her judgment for that of the duly elected leader of a constitutional republic. Nowhere in the op-ed does the appointee allege criminal or treasonous behavior on the part of the President. Rather, this person says the President is not faithful to “ideals long espoused by conservatives,” and conducts meetings that “veer off topic and off the rails. While I agree that unfaithfulness to conservative principles and bad meeting habits are annoying, are they grounds for the unelected to put themselves above the will of the people?”

Really? Just “annoying?” “Will of the people?” Jennings assumes away one of the most critical questions implicated by the op-ed, namely, that the Trump administration, having received massive support from a foreign power (Russia), is therefore illegitimate and that Trump is an unhinged person incapable of exercising the vast responsibilities of the office he holds. One must be careful about “will of the people” arguments in the context of the Trump administration where there is an outstanding investigation of possible collusion, with the president’s knowledge and approval, with a foreign power to steal the election.

When Jennings states “Voters knew exactly what they were getting with Trump,” he is implicitly admitting that the claims about the unhinged and dangerous behavior of the president are legitimate and certainly not surprising. Yet he, and the other Republicans howling about the op-ed, continue to argue that the use of anonymity and the acts of resisting the president are more important than assuring that the president does not undertake dangerous actions harmful to the country. I can’t say this is surprising when the record of the Republican-controlled Congress is considered. Those politicians clearly care more about retaining their party in power than they do about the risks to the country and the world from having a leader who resembles Kim Jong-Un in more ways than one.

Jennings also argues that the op-ed author has a “duty to resign” and then should reportwhatever egregious behavior he or she has personally seen to Congress and the Special Counsel Robert Mueller.” There are two problems with that position.

One, if all the insiders resisting the president’s unhinged behavior were to resign, there would remain no internal resistance to his “egregious,” or much worse, behavior. The sudden interest of Republicans in “honor” is a pathetic joke in like of the failure of Congress to exercise its checks-and-balances responsibilities.

Second, Mueller’s investigation is not about “egregious behavior” and Mueller’s taking such information would just lead to more Republican screeching about Mueller illegally expanding his investigation beyond its proper boundaries. It is beyond cynical to now suggest that Mueller look into the president’s “amorality.”

It should also be noted that if the op-ed author were to reveal his/her identity, he/she would immediately be fired, perhaps even arrested. That’s asking a lot of someone who was apparently trying to mitigate the worst aspects of a dangerous autocrat’s tenure in the nation’s highest office.

It’s also more than a little hypocritical to be arguing that there are superior “remedies created for us by the founding fathers.” Technically, that is true, but since the Republican majorities in the House and Senate have shown only blind obeisance to Trump regardless of his outrageous behavior bordering on if not actually treason, it is clear that the regular constitutional mechanisms for controlling an out-of-control president are not effective.

Jennings has a somewhat fair point in saying, “Is it right for unelected people to make decisions for him? Is this a signal we want to send the rest of the world, that constitutional order has fallen apart in the world’s most durable democracy? Because that’s precisely the destabilizing effect this op-ed will have on America’s standing in the eyes of our friends … and our enemies.”

Maybe, but if one was awake during the period since Trump’s inauguration, it should be clear that the constitutional order has already fallen apart and that our relations with friends around the world have been undermined and destabilized by the conduct of the president. It’s a bit late and completely cynical for anyone on the Republican side to be citing the “constitutional order” as a basis for objecting to the op-ed.

Jennings also argues “Those who stole papers from the Oval Office must be subpoenaed by Congress to explain themselves, because we deserve to know whether they have a good reason beyond just policy differences with their boss.” The basis for the Congress to investigate the conduct of Executive Branch appointees is not apparent to me. Think about what that process would look like. Such “investigations” could not be held in public so we would have members of the White House senior staff and possibly Cabinet officers testifying in secret Star Chamber-like proceedings that would inevitably resemble the days of Joe McCarthy. The fruits of the Trump presidency.

Jennings goes on to address the formal ways the Constitution provides for addressing problems with the president:

The founding fathers provided three tools to stop a runaway presidency — elections, impeachment, and invoking the 25th amendment. The Times op-ed writer admits that no one in the Trump administration “wanted to precipitate a constitutional crisis” by invoking the 25th Amendment, which allows for the removal of a president. This tells me that the writer’s concerns aren’t widely held enough to actually rally a constitutionally allowable coup against the President.

That leaves impeachment, which I suspect House Democrats will pursue come January if they take over the House of Representatives via elections in November. Strangely, Democratic leaders must not believe impeachment to be a winning message, as they continuously try to tamp down talk of it on the campaign trail, despite the desire of their base to toss Trump in the Potomac River. [emphasis added]

This is all well and good but fails on several grounds. First, the decision of staff, or whomever was involved, not to seek 25th Amendment relief does not logically support the assertion that the writer’s concerns weren’t widely held. That argument is similar to the position often espoused by KellyAnne Conway that since Trump won the election, no one cares that he lied about disclosing his tax returns. Second, citing the checks and balances is fine but it’s grossly hypocritical, and worse, to suggest at this stage that the Republican-controlled Congress is going to lift a finger to corral the president.

Jennings closes with a clearly political message.

The writer would do well to view the situation through the prism of an average, middle-American voter who selected Trump less than two years ago. That person is likely to believe that the economy is humming, that optimism is rising, that the President is appointing good judges, and that even the Congress is operating efficiently in what is supposedly a chaotic environment.

There are better ways to handle this beyond signaling that elections and our constitution have lost their usefulness as the means to enact change. Perhaps allowing an election to pass, so that actual voters can consider the facts and render a judgment, is more prudent than circumventing the established constitutional order that has served our republic well.

I suggest that the op-ed author viewed the situation from a greater awareness than worrying about what Trump’s political base may think, especially considering the evidence that many of them don’t think at all. It is far better to think about this issue apart from politics. The “established constitutional order” is hardly “served our republic well” by any reasonable standard. When the substance of the op-ed is combined with other known evidence, not least the revelations in Bob Woodward’s forthcoming book, Fear, it may yet be true that the anonymous author of the op-ed will indeed be regarded as a hero. The election that Jennings prefers as the arbiter of Trump’s performance is drawing close and it will tell us much on that question.

Footnote: I just heard another pundit on CNN saying Trump was “duly elected” and therefore the op-ed author is on shaky ground criticizing him. I repeat: media people should stop saying “Trump was duly elected.” There are outstanding legitimate concerns about the “duly” part of that story that are under active federal investigation. The press has no business just writing such issues off in their discussion of issues affecting the administration.

Twitch Your Eyes So They Think You’re Crazy

Imagine, if you will, that Donald Trump and family/hangers-on are in a bar planning further destruction of the poor and middle classes. Some immigrant waiters have accused the group of cheating on their taxes and undermining the Constitution. Trump’s gang doesn’t take kindly to being told the truth. The two groups are about to tangle.

The bar doors swing open and in walks Sheriff Mueller, dressed in black and sporting double holsters marked “subpoenas” and “indictments.” The Sheriff counts off his steps as he approaches the group and says softly, “it about time you boys got out of town.” They laugh. The National Marshall is on Trump’s payroll and Trump and team are sure they are above the law.

This is, of course, fiction, except for the part about Trump and team being sure they are above the law. And, further, I didn’t make this up by myself.

In case you haven’t seen it, GEICO this year produced a great ad called the “Cowboy Showdown.” You can see it at  https://www.youtube.com/watch?v=MOG8AFPQcM4.  The basic idea is that in a typical Western bar scene, the sheriff confronts a scruffy trio of cowboys who have just been accused of card cheating. The sheriff tells the thugs that it’s time they got out of town, a demand met with hostile mirth by the cowboys. The sheriff then speaks his “left foot, right foot” steps as he moves in closer and then, in a close-up, says “Twitch your eyes so they think you’re crazy.” He does, as uncertainty spreads on the faces of the cowboys. And so on.

The ad’s humor resonates because almost everyone has seen variants of the scene in old western movies performed straight and serious.

The announcement of the indictment of Paul Manafort and Rick Gates reminded me of the ad, which in my view ranks right up there with the camel ad demanding that office employees acknowledge that it is “hump day” (see https://www.youtube.com/watch?v=7LtjzQaFZ3k).  The charges follow close behind Trump’s recent tweets chastising the Secretary of State for trying to negotiate a peaceful solution to the North Korean nuclear threat. In case you missed them, Trump tweeted: “I told Rex Tillerson, our wonderful Secretary of State, that he is wasting his time trying to negotiate with Little Rocket Man…,” followed by “Save your energy Rex, we’ll do what has to be done!”

This follows other tweets in which Trump has threatened the total annihilation of North Korea, amidst name-calling reminiscent of school-yard behavior of grammar school boys.

The connection between the GEICO ad and Trump’s Tillerson take-down is that this is how Trump negotiates. The sheriff is outnumbered three-to-one and is trying to intimidate the cowboys into giving up their advantage by indicating he is nuts and may do something irrational and unexpected. This spooks them into a state of uncertainty and weakness. However, the sheriff, at the end of the ad, is still outnumbered and in a precarious situation.

This how Trump negotiates – make the other side think you’re irrational and capable of anything, in this case undermining the credibility of your official representative, and thus may at any moment unleash the full fury of American military power against a sitting-duck North Korea.

The “I may be crazy so you better be careful” strategy is not uncommon in business and other negotiations, as you know if you have experience with negotiating in high-stress situations. But the strategy rarely leads to good outcomes against experienced negotiators who are familiar with the approach and know now to deal with it. The outcome can only be positive if the other side responds rationally. If the other side is genuinely bonkers too, the outcome can quickly lead to mutually catastrophic results.

In the case of North Korea, it seems highly likely that Kim Jong-un has, at best, a severely distorted view of the United States and the political system that produced Donald Trump as president. Many people in the West see this confrontation as the worst-case scenario in which a demented, angry and generally ineffectual Trump acts out his fantasies and gets the world into a nuclear confrontation that could be avoided by adult behavior. If both Trump and Kim Jong-un are indeed crazy, as much evidence suggests, we are in a boatload of trouble as a civilization.

The case establishing that Trump may be insane is growing with every passing day. He has now threatened to abort the Iran nuclear deal, dumping it into the lap of Congress, because, most likely, he has no real idea what to do. He has threatened to cut off assistance to Puerto Rico which, according to multiple credible accounts, is in a humanitarian crisis unlike anything ever experienced in modern times. Trump seems unaware that Puerto Ricans are American citizens. Or maybe he just doesn’t give a damn. They are, after all, not like the people who elected him.

And now, frustrated that the Republican-dominated Congress cannot fulfill his promise to end the Affordable Care Act, Trump also is ending the billions in federal subsidies that make it possible for the health insurance marketplaces to offer meaningful insurance for the millions of people most in need of it.

Trump’s presidency is the work of an incompetent and likely irrational madman. If not crazy in the clinical sense, he is unhinged from reality a substantial part of the time. He does not understand government, has failed to staff multiple critical leadership positions throughout the government and spends a huge amount of time golfing. He still lies constantly and is unnaturally obsessed with Hillary Clinton and with undoing everything President Obama accomplished. He is in constant conflict many of his “advisors” in the White House. Most importantly, he is set upon undermining the free press which is protected by the very same Constitution he swore to uphold on January 20.

Trump’s “eye-twitching” is the real deal, not make-believe or only for effect. He is the only president in history who took the oath of office knowing that his real intent was to undermine the federal government. His uber-entitled cabinet members, when they’re not undermining environmental protections, are flying around on private jets. His coterie of family members and true believers are enriching themselves at the expense of everyone else.

As one commentator has accurately observed,

It’s become standard for reports coming from the inside of the White House to acknowledge, slyly at first but now overtly, that Trump is in constant need of managing. He believes false reports and refuses to read truthful ones. He lashes out at anyone who hasn’t lied for him adequately. There are now entire reports devoted to his rage, his anger, his madness and his inability to accept responsibility. [http://slate.me/2ggY2xy, bold in original]

This is the situation for which the 25th Amendment to the Constitution, ratified in 1967, was designed. Whether or not he is a moron, as the Secretary of State recently labelled him, and even if not “crazy” in the clinical sense, he is certainly mentally unstable and incapable of responsibly executing the duties of the high office he occupies. Recall that he has access to the nuclear firing codes and is the Commander-in-Chief of the armed forces.

Unfortunately, the 25th Amendment, drafted by a senior senator from Indiana with the counsel of a constitutional law professor at Fordham, contains much vague language that makes invocation even more fraught than it would, in all events, be. It has also led to some sloppy analysis and commentary about what the amendment means. There are, for example, two alternative means for removing the president due to inability to perform. Sometimes, they are conflated by well-intentioned commenters on this most serious of constitutional questions.

One method is that the “Vice President and a majority of either the principal officers of the executive departments” (i.e., the Cabinet) may declare in writing that “the President is unable to discharge the powers and duties of his office.” In that case, the “Vice President shall immediately assume the powers and duties of the office as Acting President.”

The amendment then states that the President can make a written declaration that he no longer has an “inability,” at which point he resumes his office, unless the Vice President and a majority of the Cabinet declare in writing that the President continues to be “unable” to do his job. In the case of such conflicting declarations, Congress must decide. That decision requires a two-thirds vote (known as a super-majority) of both the House and the Senate. If Congress concurs with the Vice President-Cabinet majority, the Vice President remains Acting President; if not, the President resumes his office.

It seems pretty clear that the crafters of the amendment did not want to make it easy to remove a president. That was probably wise, but now the unthinkable has happened. A president with the emotional makeup of a ten-year-old has been elected and the Republican Party is prepared to support him no matter what he does.

This brings us to the second method of removal under the 25th Amendment. To understand it, you simply substitute “a majority of … the principal officers of … such other body as Congress may by law provide” for the ‘a majority of the Cabinet.’ Everything else in the written declarations process remains the same, including the role of Congress to resolve conflicts between the President and either the Vice President-Cabinet majority or the “Vice President and other-body” majority.

This appears to be a dead letter because Congress has never created that “other body” with a group of “principal officers” who could vote on the President’s “inability” to do his job.

It may occur to you that there is a potential circularity in the alternative method. This appears so because the Congressional creation of the alternative body must be provided “by law” enacted by Congress. Since Congress cannot by itself enact a law, it could be argued that the alternative body can only be created with the cooperation of the sitting president who must sign the legislation. No one would expect a sitting president expecting a political attack by his own Cabinet would ever sign such legislation to make it easier to remove him. The answer, I believe, is the second method probably would have to be set up by a responsible and rational president who was not expecting a removal effort against him. Once the president has become irrational, he simply won’t cooperate with the Congress on any alternative removal mechanism and, thus, the alternative removal mechanism could not be used.

The apparent assumption of the drafters of the 25th that the President and the Congress would always act in advance of a crisis and do so responsibly seems naïve in the current context. In any case Congress has never passed a law to create the alternative body to address the “inability” of the President to perform his duties and, in the present political setting, it is unlikely to do so.

Where, then, do we end up? With Sheriff Mueller securing indictments. The Republicans and their news agents at Fox News are, naturally, parroting Trump’s continuous efforts to deflect attention elsewhere, usually to Hillary Clinton. Like some B-grade crime movie, Trump keeps screaming, via Twitter, “look, look, it’s not me/us, she’s getting away! Get her!”

At this point it’s a bit late for Trump and his gang to get out of town, so Sheriff Mueller will just have to finish the job he started. Trump and Fox will continue to try to undermine him. Maybe Trump will try to fire him. That would be a fatal mistake. If Trump is counting on the Sheriff to blink first, that also is a mistake. Manafort is in for a rough spell if he is found guilty, so maybe he will do the smart thing and start telling the truth. Then whose eyes will be twitching?

Trump Is Unfit to Serve as President of the United States – It’s Time to Act

It is not unreasonable, I suggest, to expect, indeed to demand, certain minimum norms of behavior from the political leader of the country. This is true even with respect to someone elected on a “drain the swamp” and “end political correctness” platform. The rhetoric of campaigns is often excessive and fierce but once campaigns end, politicians generally show remarkable, indeed Herculean, capacities to forgive and forget. Witness the parade of Trump’s defeated candidates at Trump Tower after the election to make peace, beg forgiveness and ask for a job in the new administration. Mere mortals can only guess what is said in those conversations but at the end everyone is all smiles as if the personal and professional vilification that characterized the campaigns had never occurred.

The general expectation has also been that the electorate will “get over” the electoral combat, accept the outcome with good grace and “move on.” The theme is that the president is now the president of all the people and of the whole country and so everyone should respect and accept that.

This time, however, these expectations have not been fulfilled. The elected president has generally behaved throughout the transition and since the inauguration as if he were still campaigning. Worse yet, he has continued to lie about matters of both minor and very major import, continued to lash out at every critic, attacked the independent press (“enemies of the people”), demeaned the judiciary (“the so-called judge”) and behaved like someone who has no understanding of the job of president. His single respectable performance, conceded by most critics, was his speech to Congress. The warm glow lasted a whole day.

Trump stunned the country, indeed the whole civilized world, when a few weeks ago, at 6:35 in the morning, he tweeted that he had “just found out” that former President Obama had “wire tapped” Trump Tower during the campaign. He produced no evidence of his claim that his predecessor had committed a serious felony, choosing instead to say that it was up to Congress to investigate the claim. The Republican Congress, to its everlasting shame, snapped to attention and, happily I suggest, diverted attention from the ongoing investigation of Trump’s connection to Russia to look into the allegations. Now the leading members of the relevant committees, Republican and Democrat alike, have stated that no evidence has turned up to support Trump’s claims.

Instead of admitting that the allegations were a sham to draw media and public attention away from the Russia investigation, Trump continued to insist that the allegations were true. His Press Secretary Sean “Whatever You Say, Sir” Spicer, took as his charge the all-out defense of his chief, asserting, first, that “wire tapping” didn’t mean “wire tapping” but referred to broader forms of surveillance and then, when that position was widely mocked because of the continuing lack of evidence, claiming there were reliable media reports that Obama used the British secret service to carry out his illegal clandestine operation at Trump Tower. The rightfully offended British government rejected that claim immediately and forcefully.

What then did the White House do? When asked about the incident specifically in a joint press conference with Angela Merkel, Chancellor of Germany, Trump first suggested that Obama had spied on both Merkel and him and then said this:

“And just to finish your question, we said nothing. All we did was quote a certain very talented legal mind who was the one responsible for saying that on television. I didn’t make an opinion on it. That was a statement made by a very talented lawyer on Fox. And so you shouldn’t be talking to me, you should be talking to Fox.”

Listen to this for yourself at http://mm4a.org/2mEskIo.

That Trump statement is a bald-faced lie. Here are Trump’s tweets:

“Terrible! Just found out that Obama had my “wires tapped” in Trump Tower just before the victory. Nothing found. This is McCarthyism!

Is it legal for a sitting President to be “wire tapping” a race for president prior to an election? Turned down by court earlier. A NEW LOW!

How low has President Obama gone to tapp [sic] my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!”

Once again the President of the United States has lied to the people about his conduct, trying to pass responsibility to someone else. His staff, apparently willing to go to any lengths to defend him (remind you of Nixon’s staff?), insulted a major ally, then “walked back” (translation: admitted the President lied) the allegation of British involvement in the non-existent wire tapping scheme.

Not only has this collection of lies, deflections and insults drawn the attention of the media like a piece of rotting meat attracts maggots, but it has wasted time of the congressional staff, congressional committee members the FBI and the Department of Justice, chasing after a ghost, a knowingly false invention by the President of the United States. You are likely aware that this is not the first time. We have lost count.

I say, enough is enough. Donald Trump is not competent to be President of the United States. He is detached from reality and believes that dishonesty is acceptable to get what he wants. His behavior is endangering the United States. Other world leaders are watching every move he makes. How will they ever trust anything he says or believe any promises he makes? The famous parable of the Boy Who Cried Wolf applies here. Trump has squandered whatever small reserve of respectability and trustworthiness he had and should be made to face the consequences before the country faces them in a dangerous situation.

This is not about policy differences. All politicians will exaggerate and sometimes misstate facts and outright lie to escape responsibility for things they have said or done. It usually doesn’t work, at least not indefinitely.­­­­­ ­­­This is about competency to carry out the responsibilities of the office of President. Trump is a man of no integrity who cannot be trusted. The evidence of this is overwhelming. He has jeopardized the United States and undermined the office of the presidency.

The Vice President and the Cabinet should therefore exercise their responsibility under section 4 of the 25th Amendment to the U.S. Constitution, the founding document that the Republican Party is so fond of citing in support of its agenda, by initiating removal proceedings against Trump on grounds that he is “unable to discharge the powers and duties of his office.” It is past time.