The Unmaking of the President 2016

by Lanny J. Davis

  • Supporting policies that directly economically benefit President Trump’s Mar-a-Lago:

  ° President Trump is seeking a $32 million historic-preservation tax credit for the club.

  ° Receiving payments made by members and guests.

  ° Doubling membership initiation fees doubled after Trump became president; State Department and the UK and Albanian embassies promoted Mar-a-Lago.

  ° Using his position as president to promote Mar-a-Lago.

  ° Increasing the cost of goods and services, such as dinner prices, after Trump became president.

  If the president knew of steps he could take to reduce or eliminate apparent conflicts of interest, and chose not to do so, that is further evidence of intention to violate the public trust and fiduciary duties that could, if proved, justify impeachment and removal from office. The key is Trump’s failure to take actions prior to his inauguration that would have removed the potential conflicts of interest. Three actions in particular stand out.

  First and foremost, President Trump could resolve a great many concerns and suspicions about his potential and actual conflicts of interest (as well as concerns about motives for colluding with the Russians) by releasing his tax returns—at least for the last ten to twenty years—which include disclosures of business deals, transactions, and tax issues, foreign and domestic.32

  Every president since Richard Nixon has released his tax returns—and Nixon released his even while they were under audit!—for public review. The very fact that President Trump has refused—expressly violating multiple promises that he would do so, without any conditions attached—raises serious suspicions that he has something to hide. Even more troubling is that the explanations he has offered for breaking his promises are either outright lies or intentionally misleading—and we have already discussed that lying to the American people on issues important to the national interest is an impeachable offense.

  Certainly, any congressional impeachment investigation should start with a subpoena to the president personally to produce all his tax returns for the last ten to twenty years. Refusal to do so—defiance of a congressional subpoena under the constitutionally provided impeachment power exclusively possessed by Congress—in and of itself would constitute cause for impeachment and possible removal from office.

  The second option urged upon the president by many constitutional and ethical experts and rejected by him is to put all his business assets, companies, and transactions in which he has any possible economic interest, direct or indirect, into a blind trust. In this situation, a trustee is in charge of all the assets, and the trustor (theoretically) has no knowledge of what is happening with his portfolio. Of course, President Trump knows what he owns, and much activity of the trust would be reported in the news. So it is hard to say how much “blindness” would be involved. Still, at least a partial blind trust would be a start.

  Trump also could have taken advantage of a lesser and narrower option to minimize possible conflicts of interest. He could have simplified his portfolio by selling specific company stocks in favor of broad index funds and bonds. This also goes for private holdings of property and businesses. By simplifying or converting all holdings to cash, a politician hopes to remove any suggestion of favor toward a business, industry, or sector.

  The question is: Why hasn’t Trump done any or all of these things to avoid even the perception of potential personal conflicts and enrichment as a result of his presidency?

  The reason cannot be that he needs more wealth. Nor can he be worried about his economic future or that of his family. What reasons are left? Indifference? Arrogance? Greed? The belief that the ordinary ethical rules that apply to everyone else don’t apply to him?

  These are not legal questions. They are character and ethical questions. He hasn’t answered them. An impeachment investigative process will require him to do so.

  Invoking the Twenty-Fifth Amendment

  The Constitution provides for another method for removal of a president other than impeachment under Article II, Section 4. And that is the use of Section 4 of the Twenty-Fifth Amendment to remove a president because of some type of physical or mental impairment such that the president is determined to be “unable to discharge the powers and duties of his office.”†† The amendment was passed by Congress on July 6, 1965, and ratified by more than two-thirds of the states on February 10, 1967.

  It is more difficult to invoke the Twenty-Fifth Amendment to remove a president against his will than to use impeachment to do so. Impeachment allows for a majority of U.S. House members to vote for “impeachment” (likened to an indictment), and a two-thirds vote by the U.S. Senate to “convict” and force removal; whereas under the Twenty-Fifth Amendment, removing a president against his or her will requires a two-thirds vote by both the House and the Senate.‡‡ Moreover, a president cannot be removed at all without the initial support of the vice president.§§

  Conduct or Actions Justifying Removal Under the Amendment

  The definition of what conduct or actions suffice to meet this standard of a president who is “unable to discharge the powers and duties of his office” was not provided by the drafters of Section 4 of the Twenty-Fifth Amendment—and intentionally so. This was no different from the decision of the framers not to define the vague terms “high Crimes and Misdemeanors” as a basis for presidential impeachment. The drafters of the amendment also recognized that contemporary political standards and judgments would determine the appropriate definition of “inability to discharge” fitting for the time and the facts at hand.

  It is also a good guess that congressional drafters of the amendment recognized that forcing a president out of office by declaring him or her to be physically or mentally unfit (especially the latter) would be very difficult, personally and politically.

  However, there is an alternative view—that invoking the Twenty-Fifth Amendment could be easier if it became an overwhelming bipartisan consensus that, because of the president’s mental imbalance and impairment, our nation itself was in danger. In such an event, the inevitably slow and political process of using impeachment to remove a president might be a luxury the country could not afford. If Trump’s behavior became so threatening to the American people, enough to overcome the vice president’s inevitable loyalty to the man who selected him, then the Twenty-Fifth Amendment—even if a two-thirds vote was required twice due to a resisting Donald Trump—could be the better and more easily expedited course, conceivably accomplished from start to finish under the provisions of Section 4 within four or five weeks.

  The Case for Assessing President Trump’s Mental Stability and Possible Use of the Twenty-Fifth Amendment

  To make an appropriate assessment of using the extreme remedy of removal of the president for mental impairment, experts must first determine whether President Trump shows signs of recognizable mental disorders or impairments that could create risks to our constitutional liberties or our national security, or both.

  The evidence to date is that he does.

  Second, a bipartisan leadership group in the House and Senate—preferably a joint committee of both chambers—should examine whether President Trump’s specific words, actions, and conduct in the first year of his presidency pose imminent risks to our constitutional system of government or to our national security, or both. The answer to date is maybe—but serious investigation is merited.

  The Mental Disorder of “Malignant Narcissism”

  In 1984, the psychiatrist Otto Kernberg described a severe form of narcissism called “malignant narcissism,” with personality traits that, in combination, constitute a significant pathology and mental disorder. He found that, unlike ordinary narcissism, malignant narcissism was a “severe pathology.” It was characterized by an “absence of conscience, a pathological grandiosity and quest for power, and a sadistic joy in cruelty.”33

  An article published at the end of January 2017, less than two weeks after Trump became president, summarized bes
t, in the opinion of various psychologists and other experts, the eight major indicators of malignant narcissists34:

  1. A sense of entitlement (“like a toddler who never learned he is not the center of the world and becomes enraged when others don’t meet his [or her] immediate demands”)

  2. Lack of conscience and empathy (“You know the little voice inside your head that whispers to you that you might be doing something wrong? Malignant narcissists don’t have that. They also lack the ability to empathize with others.”)

  3. A sadistic streak (They are “willing to inflict actual emotional and/or physical harm, or humiliation to another living creature, and even gain enjoyment from it.”)

  4. Egocentrism (They “talk about themselves incessantly, seek compliments nonstop, and basically behave as if the Earth orbits around them instead of around the sun” and become “annoyed or even enraged when others fail to see things their way.”)

  5. Grandiosity (They have “an unrealistic sense of superiority; they may see themselves as better than everyone else, thus viewing others with disdain or inferiority.”)

  6. Paranoia (They are “excessively suspicious without justification, and/or [believe] that others are plotting against him [or her], read far too much into everything people say, and are quick to criticize, but they are not open to criticism themselves.”)

  7. A manipulative nature (“They will attempt to confuse you, maybe even making you feel as if you’re crazy. They distort the truth and may resort to lying if it serves their end.”)

  8. Project their bad behavior onto others (“For example, if [the malignant narcissist] stole something . . . then [he or she] calls you a thief. . . . In projection people become unwilling to see their own shortcomings but rather attribute them to someone else. . . . They know these shortcomings because they have them, but they won’t admit them. Instead, they deflect and insist the rest of the world is actually guilty of what they’re doing.”)***35

  Sound familiar?

  Of course.

  This is the Donald Trump that most people recognize. For every personality trait described among these eight, it is not difficult to recall Donald Trump acting exactly this way on multiple occasions. Even his core base supporters should agree that these traits are more than a little reminiscent of Donald Trump. In fact, to these core supporters, many of these traits are why they voted for him.

  However, establishing that Trump is not normal and his personality and character traits closely track those of a malignant narcissist is still an insufficient basis to try to remove him from office under the Twenty-Fifth Amendment. The bar must be much higher even to begin an investigation. The key question remains: Does President Trump have a mental disorder or impairment so severe as to threaten the nation in two fundamental respects—a clear and present danger to (1) constitutionally protected liberties and the rule of law; (2) the security of the American people?

  Based on President Trump’s specific words, conduct, and actions in the first nine months of his presidency, there is evidence that he has sufficient traits consistent with a malignant narcissist and those traits present those two risks to the republic. Thus, removal under the Twenty-Fifth Amendment should be seriously considered.

  Let’s examine some examples regarding each risk.

  1. Threat to individual liberties and the rule of law under the Constitution:

  • On May 8, 2017, President Trump asked then FBI director Comey to pledge his personal loyalty during a federal criminal investigation involving possible collusion between President Trump’s campaign and the Russian government. Comey demurred because he owed loyalty only to the Constitution. This is an instance of President Trump’s excessive egocentrism—putting himself and his own ego over the rule of law, indicating Trump’s malignant narcissism allows him to ignore that this is a nation of laws, not men.

  • On February 17, 2017, less than a month into his presidency, Trump tweeted probably the harshest attack on the nation’s media of any American president in U.S. history. He didn’t just criticize the media, as almost every president has. He described the nation’s media as the “enemy of the people.” Here is the entire tweet: “The FAKE NEWS media (failing @nytimes, @CNN, @NBCNews and many more) is not my enemy. It is the enemy of the American people. SICK!” After swiftly deleting that tweet, he then reposted a similar one, deleting the word “SICK” and adding two other broadcast news networks—@ABC and @CBS.

  As the New York Times reported, “The language that Mr. Trump deployed on Friday is more typically used by leaders to refer to hostile foreign governments or subversive organizations. It also echoed the language used by autocrats who seek to minimize dissent.”36 Trump’s generalized attack on mainstream media as the “enemy” of the people is a serious threat to First Amendment principles. Trump fails to distinguish between disagreement and demonization, between criticism and challenging the patriotism of reporters and news organizations. This is dangerous for a president of the United States, especially one with fervent, angry followers known to use violence against media, with the encouragement, even the exhortation, of Trump.

  • In the first month of his presidency, Trump attacked various federal judges using personal language, challenging their motives, such as when his executive order banning any immigration from seven Muslim countries was struck down as unconstitutional by several federal courts across the nation, from Oregon to Virginia to Hawaii. In early February, Trump’s Supreme Court nominee and now Supreme Court Justice Neil Gorsuch called Trump attacks on federal judges “demoralizing” and “disheartening.”37

  On April 26, a widely respected San Francisco federal judge, William H. Orrick, issued an injunction barring a Trump executive order with the effect of withholding funds for any “sanctuary city” (in this case, San Francisco) that refused to cooperate with what the city government believed was illegal federal immigration enforcement actions. Trump attacked the judge for endangering public safety and disparaged him for being “unelected,” the very status under our constitution that the framers intended to guarantee the independence of the judicial branch. The Washington Post quoted Charles Geyh, an Indiana University law professor with expertise in judicial conduct and ethics, expressing concern about Trump’s “dangerous message” undermining our Constitution. The professor said Trump showed a “lack of understanding of the equal roles of the three branches of government, specifically of the judiciary’s job to serve as a check on the executive branch.”38

  2. Threat to national security:

  • August 2017: Trump’s reckless threats of nuclear attack on North Korea. On Tuesday, August 8, President Trump—without any consultation with America’s military leaders or his secretary of defense—declared that “North Korea best not make any more threats to the United States. They will be met with fire and fury like the world has never seen.” He said that North Korea’s young and erratic leader, Kim Jong-un, “has been very threatening beyond a normal state. They will be met with fire, fury, and frankly power the likes of which this world has never seen before.”

  This was widely understood to be a threat to launch a preemptive nuclear attack on North Korea—the first time in American history that any president has ever made such a public threat. Harry Truman never announced publicly his use of the first and only atomic bombs ever used in history (on Hiroshima and Nagasaki). John F. Kennedy never made such a threat during the 1962 Cuban missile crisis. And during some tense time periods in the Cold War during the two terms of President Reagan, such a threat was never made.

  From all evidence, Trump decided on his own to make the threat of use of nuclear power, scaring the living daylights out of Americans and people around the world, especially the tens of millions of South Koreans and Japanese whose lives would immediately be in danger if North Korea launched a massive counterstrike on Seoul and Tokyo using artillery, rockets, and bombs.

  Several days later, he added to his original statement, again without any apparent consultation. He said that, if any
thing, his words were not tough enough. And then he said—again apparently without any consultation with the joint chiefs—that the U.S. military was “locked and loaded” to attack North Korea. And everyone assumed “locked and loaded” meant U.S. nuclear tactical weapons were ready to be launched against North Korea preemptively. Then he went even further to frighten the world, if that was possible: He implied that he might launch a nuclear attack in response to only threatening words by the North Korea leader.

  Here was the ultimate nightmare case of the malignant narcissist personalizing the entire matter as if it were a contest of wills and egos between himself and the North Korean leader who is half his age, appearing to forget what was at stake if he miscalculated.

  In reaction to Trump’s heated rhetoric threatening nuclear war, former conservative Republican New Hampshire senator Gordon Humphrey wrote a letter to the New Hampshire congressional delegation, asking them to support a House bill to establish the Oversight Commission on Presidential Capacity to begin an investigation of possible removal of Trump under the Twenty-Fifth Amendment. “President Trump’s threat to rain down ‘fire and fury’ on North Korea is like pouring gasoline on fire,” Humphrey said in a statement. “It’s crazy. Donald Trump is impaired by a seriously sick psyche. His sick mind and reckless conduct could consume the lives of millions. The threat of nuclear war is steeply on the rise.”

  • Revealed highly classified information to top officials of Russia.

  Another instance of Trump’s putting U.S. national security at risk because of his reckless, ego-driven narcissism occurred on May 10, 2017, one day after President Trump fired FBI director James Comey. As discussed at length earlier in this chapter, without apparent prior consultation with anyone in the Intelligence Community, his national security adviser, or the secretary of state, Trump hosted top officials of the Russian government in the Oval Office, including the foreign minister and the Russian ambassador to the United States (the latter known to be a top Russian spy in this country). U.S. media was barred from the meeting, but Russian media was allowed to come in after the meeting to take photographs, with no Secret Service supervision.