Reasonable people are agreed that, for the good of the nation, Trump should be removed from, office as soon as possible. It might actually be to our side’s political advantage to leave him in place to drag down the Rs’ prospects in 2018 and 2020, but I think most of us at this site agree that the ongoing danger he presents to the whole country easily outweighs any political advantage our side gets from having him continue leading the other party over a cliff.
Unfortunately for the nation, both ways the Constitution provides for early removal of a president would require Rs to act to accomplish that removal. The R House would have to impeach, and the R Senate convict, to remove the president by impeachment. Both, plus the R cabinet, would have to act to remove by the provisions of the 25th. To put this as kindly as it can be put, the Rs’ ideas about the good of the nation diverge somewhat from our own, in ways that make it unlikely that they will do their duty and remove the president until and unless he does something immediately and obviously catastrophic.
There’s not a lot our side can do about the impeachment route, until and unless we get back the majority in the House, or in both House and Senate. Until removed from office, the president enjoys a wide official immunity that keeps any prosecutor from pursuing criminal charges until after he has been removed by impeachment. By setting out this mechanism of impeachment, the Constitution effectively barred any other means of removing a president from office over crimes or malfeasance in office.
At first sight, it might look like the 25th Amendment does something similar for removal of the president from office on the grounds of mental unfitness to discharge the duties of that office. It effectively makes the Congress the final judge of the competence of the president to continue in office, and by setting up that mechanism for resolving that question, it invalidates any other way to resolve that question.
There is this important difference, though. Mental competence can be questioned over each individual official act of the president. A court doesn’t have to be asked to decide on the global competence of the president to hold the office, just on whether he is competent to have reached the one particular decision in question in that lawsuit.
Take the president’s latest action in withdrawing form the Paris Accords. It is not inside the legitimate bounds of any court to decide the rights and wrongs of anthropogenic climate change and what the public policy response, including treaties and accords with foreign countries, should be. And it isn't reasonable to ask a court to declare that climate change denial is evidence of some global mental incompetence that makes it clear that a person is mentally unfit to hold the office of the presidency. But Trump’s behavior is such that those larger questions don’t have to be addressed. A plaintiff who was harmed by the decision to withdraw from the Accords just has to prove that Trump didn’t understand the basics of the Accords or the order his handlers claim he signed to withdraw from the Accords. He has made numerous unofficial statements, in speeches and on Twitter, that demonstrate that he is unfamiliar with the official document he is supposed to have signed, to withdraw from Accords that he is also obviously not familiar with.
Specifically, Trump doesn’t seem to understand the basic structure of the Accords. He imagines that it imposes requirements on the US, but leaves other nations free of any requirements. But it’s not a treaty, it’s just an intragovernmental agreement that does not carry the force of law, national or international law. It imposes no requirements on the US or on any other country. This isn’t some detail, this is the basic structure of the Paris Accords. If Trump doesn’t understand this about the Accords, he understands nothing about the Accords. And if he understands nothing about the Accords, he doesn’t understand that piece of paper he signed withdrawing the US from the Accords.
The President of the US has the authority to withdraw the US from the Accords, but if Trump does not understand the document he signed that purported to do that, he could not have exercised his authority by signing a piece of paper he didn’t understand. His handlers put a piece of paper in front of him, and, in his demented state, he signed it, accepting the false representations of those handlers of what it means. But his handlers do not have the authority to withdraw from the Accords. If the withdrawal was their act, not Trump's, it is invalid, and anyone harmed by that withdrawal should be able to ask for the remedy of reversal of this fraudulent decision that was actually made by people who lack the authority to have made it.
The plaintiffs in this suit would not ask to have the president removed for mental incompetence. That’s beyond the power of the courts to grant. Nor would they ask the court to decide that the US needs to adhere to the Accords, because such determinations also are beyond the competence of the courts. They wouldn’t even ask the courts to declare that the climate change denial that the president has expressed led to his withdrawal decision, and that in the larger scheme of things, such denial is irrational and only a mentally incompetent person could deny anthropogenic climate change and act on that belief. They would only ask of the court this very modest determination, that Trump has shown that he doesn't understand what he is purported to have signed. Not that withdrawal is good, bad or indifferent, sane or insane in the larger scheme of things, but merely that Trump does not understand this good, bad or indifferent thing he has done. If he doesn’t, then withdrawal was not his act, and is not valid.
Such a lawsuit doesn’t have to succeed in the final sense that it proceeds all the way to a decision that the withdrawal is not valid, in order to have powerful beneficial effects. If even preliminary arguments are allowed, the plaintiffs would be able to present the testimony of clinical psychologists, based on the deterioration in Trump's syntax and vocabulary over the years, that this is evidence that he suffers from a dementia, and that therefore his faulty public characterization of the basic structure of the Accords needs to be attributed to dementia until proven otherwise. The plaintiffs would ask for formal neuropsychiatric testing to resolve that question.
What do Trump's defenders, in the courts and in the media, say against that position? We have already seen this week that various members of his administration are saying publicly that Trump's statements are not necessarily the administration's positions on any given matter. Will that be their defense in a court of law, and in public discussion of what is happening in that court, that Trump's unofficial statements are just hot air, not representing the official positon of an administration that — unfortunately for this line of justification — derives all of its authority to make public policy decisions solely from the president? They will claim that the administration understands the Accords, even if Trump doesn't, and it’s the administration that made the decision to withdraw, not Trump, therefore it's valid? Unfortunately for them, it’s the president who doesn’t understand the Accords who signed, who has to sign to make the decision carry any weight.
Once a court reverses anything the president has done because his statements show that he didn't understand that particular decision, the people who can remove him for mental incapacity will have to do so. It will not be a defensible positon that a president that the courts have found acted without understanding his action should be left in office. And having a court make such a determination of metal incapacity even for just one decision of Trump's will provide all the cover that the VP, the cabinet and the R Congressional leadership need to reach the determination of Trump’s global incompetence, then do their duty and remove him. Even if the lawsuit doesn't get all the way to such a reversal, just having the questions raised will make it much easier for these Rs to get to removal promptly in any future crisis created by Trump’s dementia.