//  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.


Versus Trump: Sanctions Versus DeVos!

11/8/19  //  Uncategorized

On this week’s special edition of Uncle Charlie's Sanctions Corner–wait, we mean Versus Trump—Jason, Charlie, and Easha bring on Eileen Connor of the Project on Predatory Student to discuss a major opinion issuing sanctions against the Department of Education. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

The DACA Trap

11/6/19  //  Commentary

The Supreme Court will hear arguments next week in a case about whether the Trump Administration can revoke DACA. But progressives ought to be wary of the long-term effects of prevailing. A win here could very well make it very hard to undo the lax enforcement policies of the current Administration.

Zachary Price

U.C. Hastings College of the Law

Impeachment Trials and the Senator’s Oath of Impartial Justice

11/5/19  //  Commentary

Senators who vote on removal following impeachment trials must take an oath akin to that of a juror. The oath requires them to be impartial and vote regardless of the president's party affiliation. Will Senators do that here?

Ira C. Lupu

George Washington University Law School

Robert W. Tuttle

George Washington University Law School