FLASH
Shkruar nga Jonathan Turley
On Thursday night, Biden insisted to the media that he is still mentally fit to hold office ... before confusing the names of the presidents of Mexico and Egypt.
The report on President Joe Biden's retention and misuse of classified material rocked Washington last week. But Special Prosecutor Robert Hur's finding that Biden "willfully withheld" such material was not as shocking as Hur's explanation of why he will not prosecute the current US president.
Hur noted that even if the latter were to happen, a popular jury would find him a "charming man with good intentions and an old man with a failing memory." That was followed by an awkward White House press conference, where a strangely behaving president lashed out at reporters who questioned him on the matter, at a time that showed other signs of confusion.
Now, some are calling for Biden's impeachment based on the 25th Amendment to the US Constitution. However, the application of this amendment in this case would require more than just a few lapses in memory or press conferences where the president kicks out reporters saying "get your neck off my lawn!".
Hur's report details alarming problems with Biden's memory, and what Hur considers the current president's "weakening tenure." Given the data given in this report, then Biden's last press conference was almost a political suicide.
On Thursday night, Biden insisted to the media that he is still mentally fit to hold office ... before confusing the names of the presidents of Mexico and Egypt. And those statements came after several other gaffes by Biden, when he repeatedly mentioned conversations with world leaders who are long dead.
Subsequent calls for Biden to be impeached based on the 25th Amendment are similar to calls made by Democrats and various law professors during the Trump administration. At the time, figures like Eric Posner of the University of Chicago argued that the "conventional meaning" of the amendment should be "broadened" to include cases where both parties "lose faith in the president's ability to govern."
The various experts who called for Trump to be impeached under the 25th Amendment are remaining silent, even after his Justice Department cited the paucity of evidence as a justification for not initiating impeachment proceedings.
However, as I wrote at the time about the call for Trump's impeachment, calls for Biden's impeachment ignore the true purpose and standard upon which a president should be removed. The issue of a president's "incapacity" was briefly raised in the Constitutional Convention of 1787.
Ironically, it was a delegate from Biden's home state of Delaware who stood up and asked how the convention would react in the event of the president's incapacity and "who would be the judge of this matter?". But John Dickinson's question remained unanswered in the final version of the Constitution.
What followed was the ongoing controversy over his replacement. This issue became very topical again when President Dwight D. Eisenhower suffered a stroke. After the assassination of President John F. Kennedy, Congress finally addressed the issue through the 25th Amendment.
It deals with the regular succession of power as well as temporary incapacity, when presidents must undergo medical treatment or operations. It is section 4 of it, which allows for the impeachment of a president. One option is what I have called the "rebellion option".
It requires the vice president and a majority of the cabinet to declare that the president is "unable to discharge the powers and duties of his office" and to notify Congress that his duties will be assumed by the vice president.
If Vice President Kamala Harris can convince 8 cabinet officials to send a letter to Congress, her status as "acting President" is likely to be short-lived. Joe Biden (who recently declared: "I'm really old but I know what I'm doing") will only have to declare to Congress that "there is no such thing as a disability."
In this way, Biden could regain his power. Within 4 days, Harris, along with cabinet members, would have to send another statement to the president pro tempore of the Senate and the Speaker of the House, refuting Biden's claims. With this second statement, Congress would have 48 hours to meet and debate the issue.
That way, he would have 21 days to vote for his dismissal. However, this would require a 2/3 vote in both chambers. If Congress did not vote within 21 days, the president would resume office and retain power. So it is likely that François Mitterrand will come forward to say that he faked his death and the recent "conversation" with Biden was true.
Essentially, the issue is whether or not "diminished mental faculties" constitute a disability. While the 25th Amendment was written with physical disabilities in mind, it can clearly apply to mental or cognitive disabilities as well.
However, if Biden's mental degradation is seen as an obstacle to prosecution, would that necessarily be an obstacle to the presidency? The answer to this is complicated. A study published in "Psychology Today" on the 37 presidents of the USA, suggests that half of them have experienced at least one form of mental illness.
However they were still able to perform their duties. Memory problems are not a compelling basis for impeaching Biden. But it's all about the scale of the problem. Biden's cognitive problems are becoming increasingly apparent. But the main question is whether he can continue to perform the duties that the post he holds requires.
The standard is not whether he can perform those tasks well. There is a difference between the names that Biden confuses in relation to the current leaders of various countries and conversations with the dead. The latter would clearly be a strong reason to remove him from office.
Of course, the public has a hard time knowing the true extent of Biden's cognitive decline. White House staff have shielded Biden for years from the public and the media. Even during the 2020 campaign, many people suspected that the staff was covering up Joe Biden's mental problems.
In this sense, concern over Biden's suitability for the position he currently holds is legitimate. But it will take a lot more than a gaffe here or there to make a case for his removal based on the 25th Amendment to the US Constitution. / Adapted "Pamphlet" from "The Hill"
Note: Jonathan Turley is Professor of Public Interest Law at George Washington University School of Law.
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