Donald Trump and the 25th Amendment: Time to Invoke It?

On October 4, 2020, President Donald Trump left his hospital bed at Walter Reed Medical Center in Washington and entered an SUV driven by Secret Service agents. Wearing a mask and waving to supporters, he did what some called a "drive-by."

Many were outraged at what they saw as Trump's disregard for others' safety.

Was he, in fact, impaired? Michele Dauber, a law professor at Stanford, recently wrote about Trump’s ride—and her own experience on the drug dexamethasone, which Trump was reportedly given at Walter Reed. "We are lucky," she tweeted, "if he doesn't start a war. He's incapacitated."

Is it time, wrote David Frum in The Atlantic, to invoke the 25th Amendment?

For years, psychiatrists have been grappling with their proper role in presidential disability. Some, like Bandy Lee of Yale University, argue that a psychiatric disability already exists in Trump and see their duty as warning the country about the danger. Others, like Jeffrey Lieberman of Columbia University, decline to comment on Trump's mental health but cite psychiatrists' availability in case the amendment is ever invoked.

The 25th Amendment, ratified in 1967, outlines a procedure for dealing with presidential death and inability.

Birch Bayh, the Senator who drafted the amendment after the assassination of John F. Kennedy, aimed to address the ambiguities that existed in the Constitution on the question of presidential succession and incapacity. As legal scholar John Feerick detailed in an influential 1976 book on the amendment, much confusion had resulted from the Constitution's vagueness on the subject.

For example, Vice President John Tyler assumed the presidency when President William Henry Harrison died in 1841. But there were many, including members of Tyler's own cabinet, who thought Tyler should refer to himself only as "acting president." When Woodrow Wilson had a stroke in office and was impaired for a time, clear procedures for addressing the situation did not exist.

Feerick, an aide to Bayh at the time, he helped draft the amendment. The two shepherded it through Senate hearings, a conference committee, and the ratification process in the states. Many participants ended up with high praise for Bayh and Feerick.

What does a psychiatrist need to know about the amendment? The amendment certainly solves the Tyler problem: A vice president, on the death of a president, definitively becomes president (section 1 of the text). More importantly, it spells out how a vice president may assume the president's powers if he or she is incapacitated.

But the 25th Amendment makes that step surprisingly difficult.

For more on the issue, I consulted Brian Kalt of Michigan State University College of Law. A Constitutional expert, Kalt is the author of Unable, an insightful new book on the 25th Amendment and presidential inability.

The amendment's provision for dealing with incapacity, Kalt told me in an e-mail interview, "is mainly designed to transfer power smoothly and swiftly when the president is completely incapacitated."

If a president is unconscious or cannot communicate, or when he can anticipate a temporary incapacity in advance, Kalt says the use of the amendment is straightforward. The amendment was invoked when President Ronald Reagan underwent surgery in 1985. Vice President George H.W. Bush assumed power at Reagan's formal request, then returned it when Reagan had recovered from the procedure.

In the case of psychiatric inability, things get complicated very fast. When a president "is well enough to claim that he is able,” even when there may be some impairment, “the amendment is structured to protect him."

Bayh and those who worked with him, said Kalt, "wanted to err on the side of the president."

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That means, for example, that narcissism or sociopathy is unlikely to be successful as a basis for invoking the Amendment.

Why? The details matter here. As a first procedural step, the 25th amendment lets a president declare himself incapacitated (section 3). That move is not impossible, but is unlikely to happen when there is a psychiatric impairment. Instead, the vice president or a cabinet official would have to become concerned enough to initiate the process (section 4).

What would need to happen? For the vice president to assume the powers of the presidency, he or she and a majority of the Cabinet would have to inform the House and Senate that they agree on the president’s incapacity. Once that happens, the vice president is temporarily in charge. If the president then says in writing that “no disability exists,” the vice president and cabinet have four days to tell the House and Senate otherwise.

At that point, if there is a disagreement, two-thirds of the Senate and House must agree that the president is disabled. Otherwise, he resumes office.

As Kalt puts it, under this procedure "the evidence of the president's mental incapacity would have to be very clear and very strong."

I asked Kalt whether an especially virulent form of narcissism, say a severe personality problem that placed the safety of the country in jeopardy, would qualify.

Such jeopardy is probably "too low a bar," Kalt believes. If those who disagree with a president "want to stop him from doing bad things," he says, the Amendment is not their vehicle. Under the Constitution, "they are supposed to fight that battle in the political arena."

Elections were envisioned as appropriate for such concerns, and impeachment in the House for high crimes and misdemeanors can be deployed; impeachment can be affected by partisan factors such as who controls the House, and thus represents a lower bar for a consensus. (Kalt was not referring to any specific president in his comments.)

It may be that those commentators who hope that the amendment will be the remedy for Trump's alleged narcissistic impairment will be disappointed. They may find that the amendment's framers had other intentions—and therefore made the amendment's invocation in those circumstances very difficult indeed.

What about more overt issues like dementia, delirium, and mania? And if the amendment offers a forbiddingly high bar for removal of a president, what's a concerned psychiatrist to do?

It's complicated. Join us in part 2 to find out.