//  5/15/17  //  Commentary

Readers of a certain age may recall Tommy Flanagan, Jon Lovitz’s lovable compulsive liar on SNL. Imagine if Tommy Flanagan were elected President.

That is, imagine that the President lacked credibility entirely, whether because he was a pathological liar or because his lying was – hypothetically speaking – one symptom of a narcissistic personality disorder. Would there be anything the American people or government officials should or could do about it, short of waiting until the end of the President’s term?

Were President Flanagan guilty of “treason, bribery, or other high crimes and misdemeanors,” as judged by a majority of the House and two-thirds of the Senate, he could be impeached and removed from office. There is some uncertainty about whether impeachment must involve a criminal offense, but no President has been impeached for conduct short of violating a law. It is possible, perhaps likely, that a consistently lying President would run afoul of the law – if, for example, he did so under oath or in order to impede a federal investigation – but it is not certain.

The real problem with a President who regularly lies is that there are important presidential duties that require some degree of credibility. A President whose words are meaningless cannot competently conduct foreign policy. He cannot negotiate treaties, keep confidences, or establish substantive relationships with foreign leaders. He cannot be trusted to use the awesome and deadly powers of the military for legal or moral ends (especially if he has a strong incentive to wag the dog). He cannot, as the Constitution specifies, “give to the Congress information on the State of the Union.” He cannot reliably execute the laws “faithfully,” since he cannot be trusted to pursue justice without bias. He will not necessarily have violated the law or the Constitution, but he cannot be trusted not to, and the appearance of justice may be as important as justice itself.

In short, a compulsively lying President would be “unable to discharge the powers and duties of his office.”

The language just quoted is from section 4 of the 25th Amendment. That Amendment allows the Vice President and a majority of Cabinet heads to remove an incompetent President. Should the President disagree, in writing, that removal is warranted, Congress would have to break the stalemate and could effectively remove the President by a two-thirds vote of both Houses.

The Constitution does not specify what kinds of disabilities might leave a President “unable to discharge the powers and duties of his office,” and the standard has never been triggered by anyone other than the President himself (which is authorized by section 3 of the Amendment). For example, George W. Bush invoked it on two occasions for minor surgical procedures, leaving Dick Cheney as Acting President. At a minimum, the Amendment could be invoked by others if the President were physically incapacitated; it was ratified following the Kennedy assassination.

But the procedures for congressional resolution of a conflict between the President and the Vice President seem to contemplate that the Amendment could apply even where the President is lucid. It has been reported, for example, that White House Chief of Staff Howard Baker was told in 1987 of preparations to invoke the Amendment in light of President Reagan’s apparent inattentiveness and depression following the Iran-Contra scandal.

I harbor no illusion that Mike Pence or Trump Cabinet officials will be moved to invoke the 25th Amendment under any circumstance short of the President’s physical incapacity or total mental breakdown. That is their business. Mine is simply to note that President Trump’s complete lack of trustworthiness and his manifest incompetence – both of which were on vivid display in the recent firing of James Comey on self-evidently fabricated grounds – may be of constitutional significance.

In a Quinnipiac survey conducted during the week leading up to the Comey firing, respondents were asked to name the first word that comes to mind when they think of Donald Trump. The top three responses were, in order, “idiot,” “incompetent,” and “liar.” Someone widely so perceived is perfectly capable of discharging the duties of President. Yeah, that’s the ticket.


Legitimacy and the Supreme Court

6/19/19  //  Commentary

It is illegitimate to consider legitimacy. So say many conservatives who seem terrified that Chief Justice John G. Roberts Jr. might care about public perception of the U.S. Supreme Court. But they are wrong.

Stephen Vladeck

University of Texas

Leah Litman

U.C. Irvine School of Law

Joshua Matz

Publisher

Why the Spotlight On Chief Justice Roberts May Soon Be Brighter—and Why That Matters

6/13/19  //  Commentary

Chief Justice Roberts would preside over any impeachment trial of President Trump. Here's why that matters.

Brianne J. Gorod

Constitutional Accountability Center

Versus Trump: Bet You Can't Untie This Knot

6/13/19  //  Uncategorized

This week on Versus Trump, Jason, Charlie, and Easha discuss a decision undoing the Trump Administration's new rules that would ban much online gambling. The opinion also leads them into a discussion of the powers of district judges, the Office of Legal Counsel, the Attorney General, and more. Listen now!

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Jason Harrow

Equal Citizens