Early on in President Donald Trump’s Administration, a variety of commentators, including New York Times columnist Nicholas Kristof and MSNBC’s Lawrence O’Donnell, were pushing the idea that President Trump should be removed from office because he was “unstable,” and thus “unfit” to serve.1 Their proposal centered on a provision of the 25th Amendment to the U.S. Constitution, which permits the vice president and a majority of Cabinet secretaries to remove a president who is “unable to discharge the powers and duties of his office.” Indeed, Kristof cited to constitutional scholar and Harvard Law School professor Laurence Tribe as supportive of their view. Now that the discussion has died down, a sober look at the legal issues is in order.
Any attempt to remove a sitting president is obviously an extraordinary and constitutionally fraught act—especially pursuant to a provision whose central term is so opaque. What does it mean to be “unable” to discharge one’s duties? Does it refer to a physical or medical condition? Or perhaps an emotional or mental disposition? In this respect, the provision is not unlike the impeachment process—by which a president (or other civil officer) who is guilty of “treason, bribery, or other high crimes and misdemeanors” may be impeached by the House of Representatives and removed from office by the U.S. Senate. Although the terms “treason” and “bribery” are relatively clear, the meaning of “high crimes and misdemeanors” (language adapted from centuries-old English common law) has prompted considerable debate throughout our history. Perhaps this partially explains why only two presidents have been impeached and neither removed.2
