I asserted that Trump appears to suffer from delusional beliefs, which would make him incapable of continuing as president, citing various of the more than two hundred troubling statements made by him during the election campaign.
I asserted that the U.S. Constitution does have provisions that deal with the inability of a president (once in office) to discharge the powers and duties of that office, being Sections 3 and 4 of the Twenty-Fifth Amendment.1
Section 3 provides for a voluntary (and possibly temporary) relinquishment of the powers and duties of the president to the vice president, who becomes acting president. The president transmits a written declaration to the president pro tempore of the Senate and the Speaker of the House that he is unable to discharge the powers and duties of his office. This relinquishment continues until the president transmits to them a written declaration to the contrary.
Section 3 has been invoked three times in our history—once in 1985, by Ronald Reagan (colon cancer surgery), for about eight hours; once in 2002, by George W. Bush (colonoscopy), for less than two hours; and once in 2007, by George W. Bush (colonoscopy), for less than two hours. We have accordingly had two acting presidents: George H. W. Bush and Richard B. Cheney. These relinquishments were (and were intended to be) temporary.
Section 4 provides for an involuntary relinquishment of the office. If the vice president and a majority of the Cabinet officers transmit to the president pro tempore of the Senate and the Speaker of the House their written declaration that the president is unable to discharge the powers and duties of his office, the vice president immediately becomes acting president.
However, it doesn’t end there. If the president transmits to the president pro tempore of the Senate and the Speaker of the House his written declaration that no inability exists, he resumes his office—unless the vice president and a majority of the Cabinet officers transmit to the president pro tempore of the Senate and the Speaker of the House their written declaration that the president is unable to discharge his office. Congress then decides the issue. If Congress determines by a two-thirds’ vote of both houses that the president is unable to serve, the vice president continues to serve as acting president; otherwise, the president resumes the powers and duties of his office.
I asserted that the Florida state court had the power to determine that Trump was mentally incapacitated to serve as president. While such a determination is not self-executing—that is, it does not automatically remove him from office—it could provide the basis on which a removal relinquishment could go forward under the Twenty-Fifth Amendment.
On February 21, 2017, the court dismissed my second petition, and I filed a notice of appeal of that decision to the Florida Fourth District Court of Appeal. The appeal is pending.
I filed my appellate brief on May 1, 2017. My “May Day/Mayday” brief asks the appellate court to order the trial court to proceed with the incapacity proceeding against Trump, to the ultimate determination of whether he is mentally incapacitated to serve as president. If the appellate court agrees with me and grants my requested relief, this procedure will go forward.
Quo Vadis
Perhaps given a holding that he lacks mental capacity to be president, Trump will follow the voluntary proceeding set forth in Section 3 of the Twenty-Fifth Amendment, and declare himself to be unable to discharge the powers and duties of his office. Given the somewhat bizarre nature of our current Alice in Wonderland world, though, this may not be out of the question. If he does not choose a voluntary relinquishment under Section 3, then Section 4 of the Twenty-Fifth Amendment sets forth an involuntary procedure involving the vice president, the Cabinet, and the Congress. This section has never been invoked. Perhaps now is the time.
All are equal before the law. As far as Florida guardianship law is concerned, Trump has the right to be protected from himself—just like anyone else. But, for now, Trump is an alleged incapacitated person, and will remain so until there is a determination otherwise.
To be continued …
James A. Herb, M.A., Esq., has practiced law in Florida for forty years. He is a Florida Supreme Court–certified circuit court mediator, a certificated arbitrator, and a professional member of the National College of Probate Judges. He is author of four chapters in Florida law practice books and has chaired or spoken at more than fifty legal seminars.
Reference
U.S. Senate. 2013. The Constitution of the United States of America, Analysis and Interpretation. 112th Congress, 2nd Session, Senate Document No. 112-9.
PART 2
THE TRUMP DILEMMA
SHOULD PSYCHIATRISTS REFRAIN FROM COMMENTING ON TRUMP’S PSYCHOLOGY?
LEONARD L. GLASS, M.D., M.P.H.
You might think the answer is obvious, but it isn’t.
Obviously “No”
There’s a historical basis for objecting to mental health professionals injecting their opinions into political debate: the Goldwater rule (Friedman 2017). Psychiatrists’ painful experience of suffering legal humiliation for offering their armchair diagnoses of Barry Goldwater in 1964 chastened the leaders of mental health organizations, who then acted to protect their professions’ reputation by including in their code of ethics a prohibition against the diagnosis of public figures.
The central argument is that one can claim professional authority to comment on an individual’s mental functioning only if one has followed the precepts of the profession for a bona fide evaluation: that is, a thorough vis-à-vis interview buttressed by a personal history derived from the patient and reliable family sources, a complete mental status examination, a physical exam, relevant lab studies, and so on. Otherwise, any opinion offered by a mental health professional, though it would be seen as valid by the public, would, some hold, lack the accepted foundation to be appropriately taken as such.
Recently, the American Psychiatric Association’s Ethics Committee expanded its interpretation of the Goldwater rule to prohibit any comment by psychiatrists on a public figure that included reference to their professional status (American Psychiatric Association 2017).
Other “no” arguments opposed to such diagnoses are essentially variations on the theme of protecting the guild from disgrace: mental health professionals might speak in biased, uninformed, or merely disparate ways, and this could discredit the psychological professions, which are always vulnerable to critique and often not taken seriously, as seen in cartoons in The New Yorker and in other, less affectionate forms of ridicule.
But, Less Obviously, “Yes”
The Goldwater rule, especially in its expanded interpretation, makes an error in categorizing: it conflates a “professional opinion” (i.e., a clinical assessment that is the basis for the care of a patient) with “the opinion of a professional” commenting in a nonclinical role (i.e., as a mental health expert offering his perspective in the public square). There is no patient in the latter instance, and hence the standards for providing only a clinically derived assessment with the patient’s authorization and with due regard for the patient’s confidentiality are not applicable: again, here there is no patient. For example, you might be interested in “the opinion of a professional” when deciding on an investment or a catering menu, or when reading an op-ed in the New York Times.
By the same token, I question the literal application of the so-called Tarasoff duty to warn, so named after the landmark legal case from which it arose. The Tarasoff duty is relevant when, in a doctor-patient relationship, the professional becomes aware of a concrete threat to a third party. In those circumstances, the duty to warn overrides the patient’s right to confidentiality. But where there is no doctor-patient relationship, the duty to warn is more metaphoric—that is, we professionals can “connect the dots” and alert the public to what appears to us to be a pattern of irrationality, impulsivity, and intolerance of divergent views that suggests a dangerous vulnerability in a man occupying the most powerful of positions. Our duty to warn is an expression of our concerns as citizens poss
essed of a particular expertise; not as clinicians who are responsible for preventing predictable violence from someone under our care.
The public could benefit from psychologically expert commentary on phenomena that are, on the face of it, confusing. Indeed, one of the explicit ethical principles guiding physicians is to make “relevant information available to … the general public” (American Psychiatric Association 2013). For instance, what to make of a person who characteristically proclaims his successes and never acknowledges his mistakes, who instead blames and vilifies others (e.g., the generals who planned the mission, the Fox News analyst whose opinion Trump proclaimed as fact, the press who exposed the problem, the leakers/whistleblowers who alerted the press). While it may seem obvious to some that such a person is driven to inflate himself out of insecurity, some not very psychologically sophisticated segments of the public may well take his boasts at face value. Thus, it is precisely the role of trained professionals to offer expert perspectives to the public at large.
While it’s true that, in the case of Donald Trump, we professionals don’t have the data we traditionally rely on in a clinical setting, it’s also true that, thanks to Trump’s facility in garnering public attention, the many years he has been in the news, and most especially the abundance of videotaped evidence of his behavioral reactions, there is an impressive quantity of Donald Trump’s emotional responses and spoken ideation for us to draw on. While the prior understanding of the Goldwater rule sought to prevent speculation about the inner, unobservable workings of a public figure’s mind, the newly propounded interpretation blocks psychiatrists from helping to explain widely available and readily observed behaviors.
As for the prohibition against identifying oneself as a psychiatrist when commenting on a public figure, consider the orthopedist interviewed on local television who is asked to assess the implications of the injury sustained by the local team’s quarterback in today’s game played on the opposite coast. Is she prohibited from offering her professional opinion because she hasn’t examined the football star? Of course, her opinion is conditioned by her not having examined him or seen the X-rays, but this is so obvious and implicit that it often isn’t stated. (It would be prudent to do so, lest there be any doubt about the certainty of her opinion.) Psychiatrists’ being gagged by their professional association bespeaks that association’s profound lack of respect for and confidence in the maturity and judgment of its members.
By attempting to preclude psychiatry as a profession from the public discussion, the American Psychiatric Association is, inescapably, devaluing the relevance and importance of the very profession it imagines it is protecting.
Now, it is undoubtedly true that mental health professionals are not exempt from bias and that some would speak without due reflection and circumspection. Though professionals are trained to bear in mind the potential confounding influence of their own attitudes and feelings, they’re human and fallible. I think a more appropriate action by the American Psychiatric Association would be to urge members to recognize the need for discretion when speaking out, rather than compelling them to choose between submitting to a gag rule or risk being found in violation of its ethical code. Such a policy would recognize the dictates of the individual psychiatrist’s conscience to engage with the public and not require that his or her moral prompting be subordinated to protect the psychiatric profession from appearing less than scientifically respectable because some members might speak out in an insufficiently considered way.
I do respect the difference between, on the one hand, making a diagnosis of a public person one hasn’t examined and, on the other, offering a professionally informed perspective. Diagnosing is intrinsically more specific and requires a more substantial level of confidence rooted in the professional procedures and discipline in which a more definitive conclusion is grounded. Offering a definitive medical diagnosis without a thorough personal evaluation and the consent of the person being assessed can easily degenerate into speculation and name-calling, which discredits the clinician making the less than optimally founded diagnosis. Nonetheless, one can acknowledge the limitations of relying on publicly available evidence and the lack of certainty inherent in that foundation and still offer valuable professional perspectives on the apparent psychological impediments of a public figure.
In the End, It’s a Matter of Opinion
I believe that either a “yes” or a “no” answer to the question of the legitimacy of a professional making a statement about a public figure’s mental fitness without a personal examination can be made on firm moral ground. In withholding comment, one places a premium on the traditional methodology and restraint of the profession, but also privileges the public image of the profession over a psychiatrist’s right to abide by the dictates of individual conscience. By offering an opinion conditioned on the publicly available data (but lacking the sources one relies on in clinical practice), one prioritizes the professional duty to engage with and educate the public and to identify hazards that are most starkly evident and comprehensible to the clinician’s eye.
To demonize those conscientiously holding either view is, I feel, the only indefensible position.
Why I Choose to Speak Out
These are frightening times. The current occupant of the White House is widely perceived as erratic and vindictive (Chollet, Kahl, and Smith 2017; Remnick 2017; Shelbourne 2017; Tumulty 2017).1 Yet, those very elements of his character may well have endeared him to his base. He speaks without hesitation or reflection, and repudiates “political correctness.” That convinces some that he is authentic, saying things that they’ve felt but have feared to say out loud. He appears to be easily moved to anger and heedless retaliation. That, too, could be appealing to people who feel powerless and oppressed by an economic system and the societal changes that haven’t preserved their status or allowed them to fulfill their dreams and potential. I can identify with those feelings—ironically, even better now, because I am experiencing a variation on the powerlessness I’ve just described. It would be comforting to believe I had a forceful advocate who possessed the authority and motivation to fix what worries me. Alas, the shoe is on the other foot. (Although, I have profound doubts about how sincerely motivated Mr. Trump is to pursue the interests of the truly powerless.)
Yet, I can feel a sense of community with those who share my apprehension by raising an alarm in the hope that others will be comforted by seeing that their concerns are shared. Still others may feel empowered with a heightened, psychiatrically informed understanding of the nature of the danger, and may be better equipped to respond effectively by virtue of what I and others write.
The Essentially Dangerous Nature of Donald Trump as Commander in Chief
What I and many others discern in Mr. Trump’s behavior and speech is a pattern of impulsivity that leads to vengeful attacks on those who challenge him. He doesn’t seem to pause to consider the validity of facts and perspectives that are unfamiliar or displeasing to him. He presents himself as “knowing more than the generals” and having “great” plans that are sure to succeed: “You will be sick of winning,” he has said. This combination of overconfidence and rash reactions may have been an asset in the world of real estate deals, where the stakes are financial, personal, and presumably recoverable. But “shooting from the hip” without feeling the need to obtain a genuine understanding of complex matters has much graver consequences when the safety of the nation and the global environment are on the line.
Viewed from a mental health perspective, a person who constantly extols his abilities and feels driven to diminish and ridicule others (and here I am not speaking of political campaigning, where promoting oneself vis-à-vis one’s opponents is part of the game) often arises from profound insecurity, the very opposite of the supreme confidence that is being projected.
This may seem contradictory, that someone who has succeeded in one realm of life will keep insisting that he is masterful in unrelated areas, areas where he h
as, in fact, no demonstrated competence, but it soothes such a person’s inner doubts and, simultaneously, may appeal mightily to those who crave an all-powerful ally.
This impulsivity, the need to support an insupportably inflated image of oneself, added to a profound inability to acknowledge what one doesn’t know, all augur profound psychological interference with the rational and considered exercise of power. We need to understand this, all the more so because it is the very awareness that Mr. Trump himself and his acolytes feel they mustn’t acknowledge to themselves and us, the people whose safety he is entrusted to protect. Our understanding that this is a recognizable personality style that predictably impedes reliable judgment and a sound, considered response to crises allows us to take appropriate action within the law to contain and limit the damage that we can clearly envision and, collectively, must try to prevent.
Is Donald Trump Mentally Ill?
In my opinion, this is decidedly not the question to be addressed, for two reasons: First, mental illness per se is not incompatible with reliably functioning at a high level, e.g., Abraham Lincoln (depression), Winston Churchill (bipolar disorder). Second, without a bona fide psychiatric examination, any speculation about a definitive diagnosis can be seen (and sometimes be) just that, speculation. To compound matters, it’s counterproductive because of its irrelevance (see my first point) and because the uncertain conclusions facilitate the easy dismissal of genuine, observable, and profound impediments in Mr. Trump’s capacity to deal thoughtfully and reliably with the complex and grave responsibilities of being a reliable president and commander in chief.
To put it another way, operationally and day to day, we don’t know and can’t tell if Mr. Trump knows that what he is saying is demonstrably not true. What we do know is that he can’t be relied upon to recognize having been wrong; nor does he seem to able to learn from experience such that he could avoid repeating the same untruth or another the next day, possessed as he appears to be of the same absolute conviction that characterized his previous error.
The Dangerous Case of Donald Trump Page 15