Pushing toward the pinnacle of defensive hyperbole by proclaiming himself “a very stable genius” has done more than anything to subject Donald Trump to speculation at the Capitol about how psychologically fit he is for the presidency.
Trump’s first comprehensive medical exam on Friday after a year in office, when his sedentary lifestyle and junk food habits have only been enabled, did not dispel worries by many congressional gym rats about the 71-year-old’s ability to withstand the job’s bodily strain.
More and more of these conversations have veered into the largely unfamiliar territory of the 25th Amendment, which creates a mechanism for removing a president who is mentally or physically incapacitated.
But that system’s complexities, supermajority political thresholds and essential role for the vice president are designed to be a fail-safe against anything that might smack of a hostile Oval Office takeover.
Watch: David Hawkings’ Whiteboard — What’s the 25th Amendment?
As such, there’s next to no chance the amendment will get applied to the point where this Congress would play a part — at least given what’s currently known, or even conjectured, about Trump’s states of mind and body.
To be sure, 61 House members (all Democrats, including two-thirds of the party’s Judiciary Committee members) have signed on to a bill creating the sort of independent commission described in the 25th Amendment as one venue for determining a president’s capacity.
And more than a dozen lawmakers, at least one of them a Republican, have met on the Hill in the past month with a forensic psychiatrist at Yale medical school, Bandy X. Lee, to hear her case that “Trump’s mental state poses a serious danger.”
In Politico last week, she detailed what she told lawmakers behind closed doors: “A few signs of this danger are: verbal aggressiveness, boasting about sexual assaults, inciting violence in others and the continual taunting of a hostile nation with nuclear weapons. Additional traits that are concerning are impulsiveness, recklessness, paranoia and rage reactions; a loose grip on reality with a poor understanding of consequences; a lack of empathy and belligerence toward others; and a constant need to demonstrate power.”
But that summation, which Lee declines to associate with a precise medical diagnosis because she’s never examined Trump, is a long way — medically, politically and constitutionally — from concluding the president is “unable to discharge the powers and duties of his office,” the threshold the 25th Amendment sets for replacing him either temporarily or indefinitely.
The amendment sailed through Congress in just the first six months in 1965 and had been ratified by the necessary 38 states less than two year later — the rapid pace mainly a reaction to President John F. Kennedy’s assassination and the heightened tensions of the Cold War.
The new president, Lyndon B. Johnson, had a history of heart trouble, and the next two people in line, Speaker John W. McCormack of Massachusetts and fellow Democrat Carl Hayden of Arizona, the Senate president pro tem, were both ailing — and a combined 157 years old.
The amendment created a provision for filling a vice presidential opening for the first time, even though the post had been open 16 times when occupants died, resigned or ascended to the presidency. The system — a presidential nominee takes office upon confirmation by the House as well as the Senate — is how House Minority Leader Gerald R. Ford of Michigan got his promotion following Spiro Agnew’s resignation to face corruption charges in 1973, then how Gov. Nelson A. Rockefeller of New York got the job the next year when Richard Nixon resigned and Ford moved up.
The simplicity of that process stands in contrast to the amendment’s other half, addressing presidential incapacity.
It was hardly a theoretical problem back then. James A. Garfield lingered for 80 days after being shot before dying, for example, while Woodrow Wilson was incapacitated by strokes with 17 months left in his term and Dwight D. Eisenhower suffered both a heart attack and a stroke.
In these and other cases, power was never even informally transferred because none of the vice presidents wanted to seem like usurpers.
Now, the Constitution has two procedures for transferring authority.
In the first, a president temporarily transfers power to the vice president. Ronald Reagan and George W. Bush both did so before anesthesia for medical procedures.
In the second, a president is unable to fulfill his constitutional role but cannot make the decision to step aside, probably because of a severe physical disability, or else refuses to yield power, probably because of significant mental health problems.
In that case, the vice president becomes “acting” president when he decides the time is appropriate and also obtains sign-off from either a majority of the Cabinet or some other panel created by Congress to take decision-making away from the department heads.
This is the commission, of physicians and former top administration officials, that would be established under the House bill — which, of course, is going nowhere unless plenty of Trump’s fellow Republicans conclude it’s necessary. (And even then, he could veto the measure.)
If the president pronounces himself ready to get back to work, the vice president and his fellow deciders (the Cabinet or the commission) would have four days to disagree and stop him.
At that point, Congress would have the final word. It would have three weeks to settle the dispute but could countermand the president’s judgment only with two-thirds majorities in both the House and Senate.
For all those elaborate and precise mechanics, though, the amendment’s text is silent on how “unable,” “inability” or “disability” should be defined.
The congressional authors decided to leave the language deliberately vague. Some were concerned a precise definition might be made obsolete by changes in the world of medicine. Others wanted to make sure that the elected officials given the decision-making powers had wide latitude to make what is ultimately a political decision.
Still, the debate made clear Congress didn’t want the 25th Amendment to be a tool for combating a president’s incompetence, laziness, unpopularity or even impeachable conduct.
They talked about invoking the involuntarily removal mechanisms only when a president was clearly and unequivocally incapacitated — in a coma, near death or in severe psychological distress.
The vice president, the Cabinet or the special panel should get involved when the president does “not possess the mental capacity to make a decision and perform the powers and duties of his office,” Democrat Birch Bayh of Indiana, the principal author of the amendment, said during the Senate debate in June 1965.
“We are not getting into a position, through the pending measure, in which when a president makes an unpopular decision, he would immediately be rendered unable to perform the duties of his office,” he said.
In other words, no one should expect these powers to get used, especially for the first time, in a way that could be portrayed by history as a constitutional crisis culminating in a coup.
A presumably politically loyal vice president would be the essential actor in any initial invoking of this extraordinary provision. And, in the end, it would take bipartisan supermajorities in Congress to move the president aside. It’s hard to imagine any of that happening under Vice President Mike Pence and the current GOP control on the Hill.
Rep. Cathy McMorris Rodgers, 48, a Washington Republican and the GOP conference chairwoman, talks about being a lawmaking mom, putting together the member retreat and surviving the House schedule.
Q: What advice would you give to a Republican mother who is hesitant about running for Congress?
A: If I can do it, you can do it. I would just encourage them to go for it. Being a member of Congress, being a working mom as a member of Congress, is not that different than millions of other working moms across the country. It’s more high profile. You do it in front of the cameras. I find a lot of fulfillment and purpose in what I’m doing and really believe that I’m making a difference for my kids and the next generation.
Q: The Republican retreat is coming up on Jan. 31. What goes into planning that?
A: I’m proud that the last three years, working with Sen. John Thune, it’s been a joint House and Senate retreat. We had gone for a long time without having the senators on the retreat. We’ll have the president, the vice president [and] we’ve invited other Cabinet members to come. It’s really just an opportunity that we rarely have to spend time together and also to think about and discuss our goals for 2018.
Q: What did you do for the long weekend?
A: I spoke at the Martin Luther King rally in Spokane and launched the return to civility pledge that I am really excited to be leading in eastern Washington — a result of a series of meetings and dinners that I had last year. Coming out of the election, a local guy in Spokane … [said], ‘Cathy, you know there’s something about bringing people together over dinner and putting away the cellphones and sharing a meal that just really can be impactful.’ He said, ‘As a leader in this community, I think it would mean a lot if you were to bring diverse people together and have a unity dinner.’ So I took him up on his challenge, and we’ve been having these unity dinners.
Q: You were a staffer for former Washington state Rep. Bob Morton. What perspective does that give you as a member?
A: There’s no substitute for actually being the elected representative. When you’re living it, it’s just really different. I think being a staffer gave me a perspective that’s valuable in the sense that I was committed, I was passionate about what the member was doing when I was a staffer. I’m glad I have that perspective now as a member to know that my staff is committed and as passionate as I am.
Q: What was your most challenging day in office?
A: Some of my most challenging days came when I was a freshman because trying to wrap my hands around the schedule and all of the demands, it seemed impossible. I remember one day I was in the Education [and the Workforce] Committee, and we were voting at the same time the [Natural] Resources Committee was voting. And I just, like, gave up — there’s just no way I can physically do this, and people back home are going to say that I’m missing votes.
Last book read: “The Speed of Trust.”
Pet peeve: The people that seem like they have to push others on the airplane in order to get off the quickest. We all want to get off that plane. It goes back to basic civility.
Cats or dogs: I kind of want to say both. If I had to choose, I would probably go with dogs. We have a dog.
If you could have dinner with one person, living or dead: Abraham Lincoln.
The House Judiciary Committee plans to take up a bill on Wednesday that would overhaul the 1938 law governing foreign lobbying disclosures, but the measure’s fate in the Senate remains unclear.
The bipartisan bill could have broad implications not only for lobbyists and other U.S. representatives of foreign governments and political parties but also for those working on behalf of foreign corporations and nonprofit organizations.
Republican Rep. Mike Johnson of Louisiana and Senate Judiciary Chairman Charles E. Grassley of Iowa introduced companion bills last fall after the indictments of former lobbyists Paul Manafort and Rick Gates, who were charged with violating the Foreign Agents Registration Act, or FARA, by not registering as foreign agents for a Ukrainian client.
“Our bill ensures that those working with foreign nations appropriately disclose their relationships — ensuring transparency and protecting the democratic process,” Johnson said.
The House and Senate measures would give the Justice Department’s FARA unit additional authority, including subpoena-like powers. But some lobbyists and lawyers who specialize in compliance with the foreign-lobbying law say they have concerns about the bills as currently written.
A spokeswoman for the House Judiciary panel, Kathryn Rexrode, said amendments did not need to be filed in advance of the markup, so it wasn’t certain what changes might be in store for the measure. A Grassley spokesman did not respond to an inquiry about any Senate developments.
Watch: Clock’s Ticking on Deal to Dodge a Government Shutdown
Lobbyist Paul Miller, who runs the National Institute for Lobbying and Ethics, said his group supports the concept of better enforcement and compliance with the law.
But, he said, the way the measure is written could have unintended consequences for trade associations and lobbyists for groups and companies that do international work.
The bill would scrap a longstanding exception allowing lobbyists for foreign corporations and nonprofits to register under the less burdensome congressional lobbying regime.
“Sen. Grassley’s office been very accommodating and seems open to different approaches. We have some folks working on that,” Miller said. “But I’m not sure the House will make any changes that we want.”
Lawyer Joshua Rosenstein, who specializes in lobbying disclosure compliance matters, said the changes, especially those that relate to undoing the exemption for those registered to lobby with Congress, were causing concern on K Street.
“It’s not because industry is opposed to increased disclosure but because of the logistical burden it will place on industry,” he said.
The reports filed to the Justice Department under FARA must detail a lobbyist’s contacts to government officials, among other things that aren’t required for congressional lobbying disclosures.
Still, Rosenstein said, the bill appears to have momentum — especially on the House side.
“For it to move to markup, given everything else the House needs to deal with, including funding the government, it’s pretty unusual,” he said. “You haven’t really heard much opposition, at least publicly. You hear folks who are discussing what the language should be and what provisions need tweaking. You haven’t heard members coming out and saying, ‘This is a bad idea.’”
Claudia Hrvatin, a lawyer at King & Spalding who advises clients on FARA, said she was surprised the bill had been seemingly “fast-tracked” on the House side. “Certainly there is heightened awareness and a desire on the part of Congress to do something, and also a recognition that time has come to review this statute,” she said.
A panel of three federal judges in North Carolina struck down the state’s 2016 congressional map as an unconstitutional partisan gerrymander on Tuesday.
The ruling blocks the state from conducting any elections under the 2016 map and orders the state’s General Assembly to redraw congressional districts by Jan. 24 for the 2018 elections.
The state will likely appeal the decision to the Supreme Court and ask for a stay. The Supreme Court is currently considering two other partisan gerrymandering cases, one about state legislative districts in Wisconsin and one about Maryland’s congressional map.
The filing deadline for congressional candidates in North Carolina is Feb. 28, and the primary is May 8.
The Jan. 24 deadline gives the General Assembly two weeks to come up with a remedial plan. But because it’s the middle of an election year, the court is also appointing a so-called special master to develop a remedial plan in case the the General Assembly fails to deliver a plan or their plan doesn’t remedy the partisan gerrymander.
The fact that North Carolina has a Democratic governor doesn’t give Democrats much control in this situation. The governor does not have power to veto a redistricting plan from the General Assembly, said Michael Li, senior counsel at the Brennan Center's Democracy Program.
There’s precedent for court-mandated redistricting during an election year in North Carolina. After a three-judge panel in February 2016 ruled that the GOP-legislature relied too heavily on race in 2011 to draw the 1st and 12th Districts, the General Assembly had to approve a new map for the 2016 elections.
The new map maintained Republicans’ partisan advantage in the delegation but shifted some incumbents’ districts, even putting two incumbents in the same district. The adoption of that new 2016 map forced the state to move its House primaries back to June.
Todd Ruger contributed to this report.