Maybe there's more to the spat between President Trump and Sen. Bob Corker than meets the eye. At first glance, it seems like just another of the president's schoolyard battles with an establishment political nemesis that are often intended to stoke his base. But from the perspective of the senator from Tennessee, might he be trying to spark a public debate about the 25th Amendment?
Last Sunday, Trump said Corker had "begged" for his endorsement. The president said that Corker wished to be his secretary of state and that "I said 'NO THANKS,' " and added that Corker "didn't have the guts" to run for reelection.
Corker responded in kind with his own tweet: "It's a shame the White House has become an adult day care center. Someone obviously missed their shift this morning."
This enmity between the two former allies has been building for a while.
In August after protests in Charlottesville regarding the removal of a statue of Confederate Gen. Robert E. Lee left a woman dead, the president said the white nationalists include "some very fine people," prompting Corker to say that Trump "has not yet been able to demonstrate the stability nor some of the competence that he needs to demonstrate in order to be successful."
More recently, NBC News reported that Secretary of State Rex Tillerson had called Trump a "f—ing moron," after a midsummer meeting at the Pentagon with members of the national security team and cabinet officials. Corker weighed-in: "I think Secretary Tillerson, Secretary Mattis, and chief of staff Kelly are those people that help separate our country from chaos, and I support them very much."
Then, in a half-hour interview with the New York Times last Sunday, Corker said of Trump: "He concerns me. He would have to concern anyone who cares about the nation." The Times reported that Corker "charged in an interview on Sunday that President Trump was treating his office like a 'reality show,' with reckless threats toward other countries that could set the nation 'on the path to World War III.' "
When asked by the Times whether he thought Trump was fit for the presidency, Corker demurred. But he is nevertheless making interesting word choices when saying the president lacks stability and competence, claiming that only a thin line of advisers is keeping us from chaos, and that the president is reckless and on a path to World War III. Those sound like the sort of things you say when making the case that someone is unable to discharge his duties, as is specified in the 25th Amendment.
Section 4 reads in part: "Whenever the Vice President and a majority of either the principal officers of the executive departments … transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President."
Where the words unable to discharge are not defined, I asked Brian Kalt, a law professor at the Michigan State University College of Law and author of Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies, to give them meaning.
"A lot of President Trump's opponents suggest that he's unable now, but I think it's pretty clear that the drafters of the 25th Amendment wanted this to be about actual disability, that if a president is lucid, if a president is able to say 'I'm fine' and people just don't agree with what that person is doing or they think that he's doing a really bad job, that's not what this is for," he said.
"And to make sure that's not what this is used for, they added the requirement that if the president contests it and it goes to Congress to decide, you actually need more votes in Congress to displace the president under this procedure than you would need to remove him entirely under the impeachment provision. On the House side, you need a two-thirds majority for Section 4 of the 25th Amendment, but you only need a simple majority to impeach. So they said we don't want this to become an end run around impeachment and that's how they did that."
There's no evidence of the type of "disability" Kalt describes and I'm not suggesting that there is a move afoot to invoke the 25th Amendment; rather, part of Corker's motivation might be to start such a conversation.
Another consideration is that a lucid president would realize he can protect himself from the 25th Amendment by firing anyone in the cabinet he thinks might go along with such an effort. One more wrinkle is the role of acting secretaries. According to Kalt, it isn't clear whether they get to vote and a president can name them without Senate approval.
"This issue would come to a head if the cabinet were split such that the would-be ousters have a majority of the cabinet if you don't count acting secretaries, but Trump has a majority if you do count them," he said.
Of course, even if some cabinet consensus should take form under the 25th Amendment, Vice President Pence would presumably stand in the way and nothing would happen without him. He cannot be forced to do what he doesn't think is right under this provision.
"If you read the original Constitution, it suggests that if the president is disabled and the vice president steps in, the vice president finishes out the term even if the president gets better," Kalt said. "That made vice presidents very reluctant to ever step in because they didn't want to be seen as usurping. … This process is supposed to say, 'Vice president, don't worry about it, we know this is temporary, you can step in, and when he gets better, you can hand it back.' But there's still been no occasion where a vice president has been willing to do that."
And probably none here, either. But perhaps Corker thinks it a good debate starter nonetheless.