Presidential Power Plays Call for Constitutional Solutions: The 25th Amendment and Beyond

By Greg Guma

Two-hundred and thirty-one years after the US system of government was created in Philadelphia, it appears to be slowly unraveling. Among the recent signs is growing talk about invoking the 25th Amendment, a “constitutional coup” provision for replacing the president in cases of death, resignation or incapacity. 

According to Andrew McCabe, the former deputy FBI director fired last year, top Justice Department officials at least considered the 25th as an option after the 2017 ouster of FBI Director James Comey. But even Donald Trump’s removal won’t counter the long-term drift toward executive supremacy. To do that, the country may require something more fundamental, another Constitutional Convention.

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While speaking to California’s Public Interest Research Group in 1980, Ralph Nader put the presidency in an ironic, yet global perspective. At the time, President Jimmy Carter was struggling with a hostage crisis in Iran. Meanwhile, with the Republican nomination wrapped up, Ronald Reagan promised to win a renewed arms race with the USSR while simultaneously cutting taxes and implementing the conservative nostrum known as “supply-side economics.”

Noting that the race could have broad and drastic implications, Nader suggested a radical solution. “Ronald Reagan is such a threat to humanity,” he quipped, “that the whole world should be allowed to vote for US president.”

Clearly, that didn’t happen. But Nader’s point seems more valid than ever. Presidential power without meaningful accountability is deeply unfair and highly dangerous.

The creators of the US Constitution, although they could not anticipate everything, were certainly aware of the dangers of a drift toward monarchy and empire. Unfortunately, their 18th Century vision no longer meets the test. Even though the president technically needs congressional approval for expenditures and declarations of war, almost anything is possible if a “national security” rationale can be manufactured. Trump has made that all too obvious.

“The machinery of government is being moved to act on a lie,” noted Princeton Prof. Eddie Glaude on Meet the Press last Sunday, referring to the “national emergency” declared to fund Trump’s wall. “The constitutional crisis is here.”

Impeachment is again becoming a serious option. However, the last time that happened (Bill Clinton) the defendant ended up more popular afterward. And even Trump’s removal from office won’t counter the decades long development and evolution of the imperial executive. 

A president can be impeached for “treason, bribery, or other high crimes and misdemeanors,” but only if Congress chooses to act. The truth is, many of the manipulative, unethical or arguably illegal actions inspired, condoned or actively promoted by presidents are actually tested tactics that most members of Congress dare not publicly condemn, questionable as they may be. Too many others are complicit. 

The 25th Amendment deals with replacement of the president or vice president in the event of death, removal, resignation, or incapacity. One of the most recent additions to the Constitution, it was proposed by Congress and ratified by the states after the assassination of President Kennedy, and was first applied during the Watergate scandal, when Gerald Ford replaced Spiro Agnew as vice president, then replaced Richard Nixon as president. Nelson Rockefeller filled the new vacancy as appointed vice president. 

It looked like a quiet constitutional coup that left an unelected executive team in charge for two years. And one of the first things President Ford did was pardon his predecessor. This time around the pardons could begin any minute.

How would the 25th work with Trump? Under Section 4, the Vice President and a majority of the Cabinet would have to write the Senate President and House Speaker, explaining that the President “is unable to discharge the powers and duties of his office." Already highly unlikely. But with that Vice President Mike Pence would become “Acting President.” Then Trump would send Congress his own "written declaration that no inability exists." He would also threaten to retake control unless —within four days! — Pence and a majority of either (a) the cabinet that Trump appointed, or (b) another body established by Congress says he is unable to do his job. 

This in turn would force Congress to assemble within 48 hours, and to vote less that 21 days later. If two-thirds of both Houses decided that Trump simply couldn’t do the job, Pence would continue on as Acting President. If they failed to decide, however, Trump would regain control of the presidency and the country would be in even bigger trouble. Great TV, but the payback could be biblical.

There must be a better way to run a government, especially since “successful” removal or impeachment  in this case means handing the presidency to another kind of extremist, one backed by the Koch Brothers, an evangelical who effortlessly echoes presidential lies, yet thinks he is on a mission from God.

According to historian Barbara Tuchman, the office of president “has become too complex and its reach too extended to be trusted to the fallible judgment of one individual.” Thus, she and others have suggested restructuring; one example is a directorate or Council of State to which the president would be accountable. Such ideas were discussed but ultimately dropped at the original Constitutional Convention.

While embracing limits on executive power like “advice and consent” on treaties and key appointments, the 1787 Convention narrowly rejected having the president operate in conjunction with a Council, specifically to serve as a check on unilateral executive power. Benjamin Franklin said at the time that a Council of State “would not only be a check on a bad president but be a relief to a good one.”

Delegates to the original Convention struggled with how to give a president sufficient authority, free from dependence on the legislative branch, without allowing him to become an “elective monarch.” As a result, Article II does not clearly define the term “executive power” or any specific presidential authority in times of war. Congress was given control of military appropriations and rule-making for the regulation of land and naval forces, suggesting that the delegates wanted the two branches to share decision-making power over war. But their general confusion and vagueness about the relationship between the president and Congress left the door open for a gradual expansion of executive power, especially over foreign policy.

Fundamental changes are overdue. Even if the US constitutional system survives Trump, presidents will continue to seek expanded power until clear limits are imposed and public pressure reverses the trend. In the end, the country may not be able to avoid another Constitutional Convention. Even then, the rest of the world probably won’t get to vote for president. But at the very least Trump’s brazen abuse of the office invites some serious rethinking. 

As happened during America’s original Convention, the stated purpose could be eclipsed (or even hijacked) by a “revolutionary” move to revamp the entire system. Still, it does take the approval of two-thirds of state legislatures just to call one, and three-fourths of them to ratify its results. That’s a pretty high bar. As a result, the US Constitution has only been amended when an overwhelming majority of the public views the change as extremely important — and sometimes not even then.

There is nevertheless the risk that something inadequate or worse might emerge, along with new restrictions of basic rights. After all, autocratic leaders and policies have been gaining influence around the world. On the other hand, that’s also an argument for acting fast. Attempting to renegotiate some of the terms struck 231 years ago in creating the US government is certainly preferable to downplaying the drift toward royalism and tyranny.

Dan Rather recently offered a sarcastic take. “Here's a weird piece of trivia,” tweeted the former TV anchor. “Apparently Congress has Constitutional powers as well. And apparently the nation's Founders took those powers seriously because they saw how having a king worked out. Who knew?”

But as Thomas Jefferson wrote to James Madison in 1789, reflecting on whether their new national government would endure, “no society can make a perpetual constitution or perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please.” So let’s get started. 

Material in this article was originally developed for reports and editorials written as editor of Toward Freedom, an international affairs publication. 

Remembering MLK: Death, Life & Secrets

On April 4, 1968, Martin Luther King Jr. was assassinated on the balcony of a Memphis motel as he prepared to support striking Black sanitation workers there. Although James Earl Ray initially confessed to the crime – he later recanted – doubts about what happened persist. 

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In the late 1990s, former FBI agent Donald Wilson, who investigated the murder, presented evidence he claimed to have found in Ray’s car – slips of paper that support charges of a conspiracy involving federal agents. Wilson didn’t produce the evidence earlier, he said, because he didn’t trust other investigators and feared for his family’s safety.

Coretta Scott King and the rest of King's family won a wrongful death civil trial against Loyd Jowers and "other unknown co-conspirators." Jowers, the owner of a restaurant near the Lorraine Motel, claimed to have received $100,000 to arrange King's assassination. The jury of six Whites and six Blacks found him guilty and concluded that "governmental agencies were parties" to the assassination plot.

William Pepper, who represented the King family in the trial, charged that Ray was framed by the federal government, and that King was killed by a conspiracy that involved the FBI, CIA, military, Memphis police, and organized crime figures from New Orleans and Memphis. A friend of King near the end of his life, Pepper also represented Ray in a televised mock trial in an attempt to get him the trial he never had. The results of his investigation are provided in his book, An Act of State: The Execution of Martin Luther King.

Yet, it’s easier, in a way, to accept that King was the victim of a conspiracy than to face other aspects of his life. As Kentucky civil rights leader Georgia Powers put it, “He was a great man – but he was still a man.” Like Bill Clinton, whose record as president was largely overshadowed by relentless investigation of his personal behavior, King was hounded by FBI Director J. Edgar Hoover, who hoped to discredit the civil rights leader by exposing his alleged “womanizing.” Many civil rights leaders dismiss such charges as mean-spirited attempts to sully King’s memory and discredit his achievements.

Georgia Powers certainly had no intention of doing that. On the contrary. She worked closely with King in the 1960s, organizing to end discrimination in public accommodations and employment and pass open housing laws. In 1967, she became that first Black and first woman elected to the Kentucky State Senate, a position she held with distinction for the next 20 years. During her first term, less than a month before King’s death, she spearheaded passage of a statewide open housing bill. After a distinguished career, she passed away in 2016 at 93 years old. She was in her early 70s when we first met in 1997.

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MLK and Georgia Powers

As she explained then, her relationship with King was more than professional. Her 1995 book, I Shared the Dream, described how their work together led to a love affair that continued until the last moments of his life. Keeping that secret for almost three decades, she went public only after other civil rights leaders released inaccurate accounts of their relationship and the events surrounding King’s death.

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She was particularly upset by a comment in And The Walls Came Tumbling Down , an autobiography written by Ralph Abernathy, King’s close friend and confidante. Although willing to attribute Abernathy’s repetition of Hoover’s smear to illness and poor memory, she felt compelled to set the record straight. “When Dr. King’s life is researched,” she wrote, “I want the part relating to me to be available in my own words. It is my own history as well, both the good and the bad.”

It began with mutual admiration, she explained, and “progressed into a deepening friendship in which we shared opinions, confidences, and laughed often.” She called him “M.L.,” and he called her “Senator.” But King was under tremendous pressure, and ultimately turned to Georgia for intimacy and emotional support, she claimed. Although they sometimes discussed issues and strategies, his main unmet need was time to let his hair down and set his cares aside.

“Some people called him a prophet, and compared him with Jesus,” she recalled. While she did believe that he was divinely inspired, “I knew Martin had all the imperfections, foibles, and passions of a mortal man.” A meticulous person with an affection for silk suits, he enjoyed laughter and jokes, barbecued ribs and soul foods, not to mention the company of attractive women. In short, she said, “He had a good appetite for life.”

He also had a strong sense that he wouldn’t get to see his visions come to pass. Tired and melancholy one night, he told her, “I’m just as normal as any other man. I want to live a long life, but I know I won’t get to.”

Georgia was in Memphis with King on the day he died. The previous night he’d confided, “I’ve never been more physically and emotionally tired.” On April 4, they waited most of the day to see if a temporary restraining order against the planned demonstration would be lifted. But King was adamant. Regardless of what the court decided, he promised, “We will march on Monday.” When Abernathy asked whether he feared what might happen, King answered softly, “I’d rather be dead than afraid.”

As the meeting broke up and the group prepared for a soul food dinner, King brushed past Georgia on his way out the door. “I’m looking forward to a quiet and peaceful evening,” he said. “Don’t make any plans.” They were the last words he ever spoke to her. Moments later he was shot.

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Looking back, Georgia regretted that her actions may have hurt others, especially King’s wife. But despite those feelings, she didn’t regret her decision, insisting that it wasn’t just some tawdry affair. “When we were together,” she recalled, “the rest of the word, whose problems we knew and shared, was far away. Our time together was a safe haven for both of us. There we could laugh and speak of things others might not understand. He trusted me, and I him, not to talk about it.”

As the years passed, however, she became increasingly uncomfortable with the rumors that distorted their relationship. She also realized that her own life, like so many, was full of hidden truths. One was her ancestry. Although she didn’t know the identity of her father’s father, she eventually learned that he was White. Another involved her great aunt Celia Mudd, who was born into slavery but eventually inherited the rural Kentucky farm on which she spent all her life.

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Eventually, she uncovered most of Celia’s story. The key was a 1902 will in which Sam Lancaster, whose father had bought the Nelson County farm, left it to his most trusted employee – the former slave whom Georgia knew as Aunt Celia. That fateful decision led to a court battle with Sam’s surviving brother. The case went to Kentucky’s highest court, yet most newspapers declined to report about it. A Black woman inheriting more than 500 acres of land from a White man apparently wasn’t considered news. Neither was the fact that Celia Mudd went on after winning the case to become a local philanthropist, admired by Blacks and Whites alike. 

Powers and I collaborated on a novel , Celia’s Land,* that explores this forgotten history. During the research I visited the farm on which Celia spent her life. Stepping into the old slave quarters where she was born, I reflected on how much we still don’t understand about that time, when Whites believed Blacks were no more than property. I also thought about how often racism is still ignored, distorted, or downplayed.

Rather than the petty arguments, name-calling and cruel distortions that often characterize political discourse these days, what we need is the courage to face our own and society’s uncomfortable realities – to openly acknowledge them, replace hatred with compassion, and stop accepting convenient myths.
  (Original version posted on April 4, 2008; most read post, Jan. 2012)

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* In addition to working with Georgia on the book I have written a play, The Inheritance, also based on Celia Mudd's story.