There has finally started to be some attention to the 25th Amendment mechanism for removal of the President (Larry Tribe on MSNBC, transcript here).
The main problem is that surely welcome such a development, can not be seen to doing so.
However, there is another legal mechanism. Surely any document is subject to forms of legal challenge when the signatory lacks sufficient mental capacity to sign it. And, remember, the level of capacity required depends on the complexity of the document and issues, and to a certain extent its importance and significance.
So, what about all those Executive Orders? What about any bill that might get passed? How do we know if Trump had or will have the mental capacity to sign them.
Think about it this way. As a lawyer, given Trump’s constant changes of direction, denial of reality, and inability to engage with, remember the accuracy of , and act on, facts as presented to him, would you be willing to submit his will to probate? Surely yes. Would you tell relatives who wanted to challenge the will that there can be no case at all if lack of capacity? Well maybe yes, maybe no. But, more importantly, is it the case that under no theory could the case be made? Not so sure at all. Moreover, it is far from clear that the capacity standard for the signing of an Executive Order or a Bill is as low as that for a will. (Think of it as a will that gives away the whole country!)
While it is hard to imagine a court ultimately voiding Trump’s presidency based on this, it is not hard to imagine this as a way of legitimately and legally drawing attention to, and promoting discussion of, the 25th Amendment approach. Indeed, the only reason it is hard is because if the evidence started to stick together, the 25th Amendment process would kick in.
Any thoughts, folks?