Monthly Archives: May 2017

President Donald Trump's former national security adviser Michael Flynn has invoked the Fifth Amendment right against self-incrimination - which is a fundamental principle included in the Bill of Rights.

Below is a look at how invoking the Fifth Amendment works, and what may happen with the investigation.

How do witnesses use the Fifth Amendment?

The amendment offers numerous legal protections for defendants, with the most famous one shieldinga witness from self-incrimination.

Witnesses have invoked it in order to avoid testifying against themselves, or to avoid being forced to produce documents that could be used against them.

Does invoking the Fifth Amendment mean someone is guilty?

No. Invoking it doesn't mean that a witness is guilty of any crime or even that the person has anything to hide.

However, it can reflect a witness's concern that any testimony given would be interpreted in an unfavorable way, or may be used as evidence in a prosecution.

Flynn and Trump have previously pointed to invoking the Fifth Amendment as a sign of guilt during the Hillary Clinton email investigation.

FLYNN INVOKES FIFTH AMENDMENT, REBUFFS SENATE PANEL SUBPOENA

What about Flynn's case?

Flynn is refusing to provide documents to a Senate committee investigating Russian meddling in the 2016 presidential election. A Senate intelligence committee subpoena is seeking a list of all contacts between Flynn and Russian officials during an 18-month period.

Flynn isn't admitting to wrongdoing but is looking to protect himself from "an escalating public frenzy" of "outrageous allegations," his lawyers said in a Monday letter to the committee.

What will happen to the investigation?

Flynn's decision to invoke the Fifth Amendment may hamper the committee's investigation. However, lawmakers could try to obtain some documents on their own or get information they want from another witness.

The committee also could file a claim in federal court to try to force Flynn to testify and produce documents - which could take months.

HUME: INVOKING THE 5TH AMENDMENT IS A SMART MOVE

What about offering Flynn immunity?

The committee could offer Flynn immunity in exchange for his testimony, but that could complicate any subsequent Justice Department criminal prosecution.

The FBI would be unable to use the immunized testimony, or evidence derived from it, to build a case, though a witness can still be prosecuted for false statements or for evidence of other crimes. The committee would have to alert the attorney general before making such an offer.

The Associated Press contributed to this report.

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Michael Flynn invokes Fifth Amendment: What does it mean ...

This article first appeared on the Just Security site.

The news that retired Lt. Gen. Michael Flynn, Trumps former national security advisor and campaign aide, has refused to comply with a Senate Intelligence Committee subpoena for documents raises the question of when witnesses may lawfully resist subpoenas for testimony or documents based on Fifth Amendment grounds, which is the basis cited by Flynns lawyer.

The answer is it depends on what youre trying to avoid doing. It is fairly straightforward to rely on the privilege against self-incrimination to refuse to provide testimony, but much more difficult when the subpoena is for documents.

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Witnesses may assert the Fifth Amendment privilege whether the subpoena originates from a congressional inquiry, or from the Justice Department. The privilege is broad, and can be asserted when the evidence sought is directly incriminating, incriminating when considered with other evidence, or could lead the government to incriminating evidence.

When a witness asserts the privilege to refuse to provide testimony, the government has the option of challenging the assertion before a judge, arguing that under no scenario will the witnesss words be self-incriminating.

However, because it is difficult to account for all the possible ways that a witnesss testimony might ultimately be incriminating, this tack is a rare one. Instead, the government will ordinarily seek an order of use immunity from a judge, which eliminates the witnesss Fifth Amendment privilege in exchange for a legally enforceable promise that the witnesss words will not be used against him or her, either directly or indirectly.

If the government is reasonably certain that it will not ever want to prosecute the witness in connection with the particular ongoing investigation, this approach is virtually risk-free. The government gets the testimony, and gives up nothing in return. Needless to say, a grant of immunity does not protect the witness from a perjury prosecution if he or she intentionally testifies falsely.

However, if the witness is also a potential target of the investigation, immunity is not likely an option. As I have written here, the test that the government must satisfy to show that it is has made no direct or indirect use of the immunized testimony is so stringent, prosecutors will not risk immunizing a witness if there is any chance they might want to prosecute that witness down the road.

That is why there is virtually no chance that Flynn will get immunity for his testimony, unless it is part of a plea and cooperation deal, or the FBI investigation, now being led by Robert Mueller, reaches the conclusion that there exist no grounds to prosecute him (which seems unlikely based on the reported evidence).

Beyond Flynn, it will be essential that as the congressional investigations progress, they coordinate with Muellers investigation to ensure that they do not immunize anybody that may be in Muellers sights.

Former National Security Adviser Mike Flynn at the daily press briefing at the White House in Washington, DC, on February 1, 2017. NICHOLAS KAMM/AFP/Getty

The statute that authorizes the granting of use immunity (18 U.S.C. 6001-6005) requires that the Attorney General be given 10 days notice before a congressional committee can grant immunity, and the Attorney General can ask for an additional 20-day delay. In practice, the congressional committees and Muellers team will likely coordinate to ensure that no grants of immunity are provided to any persons who could potentially end up on Muellers radar for potential prosecution.

However, if a subpoena is for documents, the analysis is different. A witness cannot assert the Fifth Amendment privilege for the content of any existing documents, because the creation of those documents was voluntary, and the Fifth Amendment protects only against statements that are compelled by the government.

However, the Supreme Court has held that the act of production of documents, not the documents themselves but what is communicated by a witness handing them over, can be testimonial in nature because it can reveal the existence and authenticity of the documents and therefore in some circumstances a witness may be able to assert the privilege on this narrow ground alone.

However, the government can ordinarily quite easily resolve this limited challenge. Either a court will find that the act of production is so inconsequential, in light of the information about the documents already available to the government, that there is no risk that it will be self-incriminating, or the government can obtain a narrow grant of immunity for the act of production alone.

Even if the subpoenaed witness is a potential target, like Flynn, this path ordinarily presents little risk. For these reasons, it is often said that subpoenas for documents cannot be resisted on Fifth Amendment grounds.

There is an important exception, however, and it may be in play in the Flynn case. The Supreme Court held in connection with one of the criminal prosecutions of Webb Hubbell, a former associate attorney general who was subpoenaed by the independent counsel investigating President Bill Clintons Whitewater real estate investments, that when a subpoena for documents is extremely broad and amounts to a fishing expedition, then the testimonial aspects of production can be far more reaching and consequential.

The Court held that:

It is apparent from the text of the subpoena itself that the prosecutor needed respondents assistance both to identify potential sources of information and to produce those sources. Given the breadth of the description of the 11 categories of documents called for by the subpoena, the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions.

What the District Court characterized as a fishing expedition did produce a fish, but not the one that the Independent Counsel expected to hook. It is abundantly clear that the testimonial aspect of respondents act of producing subpoenaed documents was the first step in a chain of evidence that led to this prosecution. The documents did not magically appear in the prosecutors office like manna from heaven. They arrived there only after respondent asserted his constitutional privilege, received a grant of immunity, andunder the compulsion of the District Courts ordertook the mental and physical steps necessary to provide the prosecutor with an accurate inventory of the many sources of potentially incriminating evidence sought by the subpoena.

The problem with a fishing expedition subpoena, the Hubbell court found, is that the subpoenaed witness is no longer simply required to perform the narrow, ministerial act of surrendering documents that do not themselves enjoy Fifth Amendment protection.

Rather, the witness is essentially being asked to assemble pieces of the case against him or her, and that then can be considered self-incriminating.

The consequence in the Hubbell case was the dismissal of the indictment, as it was largely constructed on the basis of the documents obtained from the subpoena of him.

On the basis of this decision, Courts have held that in order to avoid triggering the broad Fifth Amendment concerns that arose in Hubbell, prosecutors (or congressional investigators) must describe the documents that they are seeking with reasonable particularity.

While that standard does not require the government to identify each and every document within a group of documents of which it is aware, it does not ordinarily allow the government simply to assert that given the witnesss activities, he or she must have such documents in his or her possession.

The Senate Intelligence Committee is plainly aware of this concern because following Flynns refusal to comply with the Committees subpoena, it issued new subpoenas yesterday that are apparently more precise in what they are seeking. Senator Richard Burr, chairman of the Committee, said that, Weve been very specific in the documents now that we have requested from General Flynn.

In addition, the Committee has subpoenaed Flynns corporate entities, with Senator Mark Warner, the leading Democrat on the Committee, explaining that, A business does not have the right to take the Fifth. He is right about that. There is a long line of Supreme Court precedent holding that collective entities including corporations, partnerships, professional associations and the like enjoy no Fifth Amendment privileges, and that a custodian of the records cannot refuse to surrender documents of the business even if they might incriminate that person.

Some commentators have suggested that in light of Supreme Court rulings that corporations enjoy certain First Amendment protections, the Court might one day revisit its decisions regarding corporations and the Fifth Amendment. Lawyers generally, and prosecutors in particular, are ordinarily a pretty risk-averse lot. Therefore, with respect to the Flynn subpoenas for documents, they will want to minimize the risk that the subpoenas are overly-broad, amounting to a fishing expedition, or that a reviewing court will one day have a different view of subpoenas to business entities. All reports indicate that the Senate Committee is being careful in its approach. Because the Senate procedure for enforcing subpoenas is cumbersome, it seems likely that if Flynn continues to refuse to surrender the documents, it will be Mueller and his team that will ultimately have to decide whether to move forward with enforcement, giving him an opportunity as well to weigh the risks and ensure that they are minimized.

Alex Whiting is a Professor of Practice at Harvard Law School. From 2010-13, he served as the Investigation Coordinator and the Prosecution Coordinator in the Office of the Prosecutor at the International Criminal Court.

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Do Flynn's Documents Come Under the Fifth Amendment? - Newsweek

"The context in which the committee has called for General Flynn's testimonial production of documents makes clear that he has more than a reasonable apprehension that any testimony he provides could be used against him," the attorneys wrote in the letter, which was obtained by the AP.

WASHINGTON President Donald Trump's former national security adviser, Michael Flynn, invoked his constitutional right against self-incrimination on Monday and declined to hand over documents sought under subpoena by a Senate panel investigating Russia's meddling in the 2016 election.

In a letter to the Senate intelligence committee , Flynn's attorneys justified the decision by citing an "escalating public frenzy against him" and saying the Justice Department's recent appointment of a special counsel has created a legally dangerous environment for him to cooperate with the panel's investigation.

"The context in which the committee has called for General Flynn's testimonial production of documents makes clear that he has more than a reasonable apprehension that any testimony he provides could be used against him," the attorneys wrote in the letter, which was obtained by the AP.

Flynn's decision not to cooperate with the Senate committee represents a new legal complication for the expanding government and congressional inquiries into Russian interference in the presidential campaign and contacts between Trump advisers and Russian officials and representatives. Flynn is a key figure in both the FBI investigation headed by special counsel Robert Mueller and in separate Senate and House inquiries.

Trump appointed Flynn, a retired U.S. Army lieutenant general and top military intelligence chief, as his top national security aide in January, only to fire him less than a month later. Trump said that Flynn had misled top U.S. officials, including Vice President Mike Pence, about his contacts with Russian officials, including Russia's ambassador to the U.S.

Flynn's letter to the Senate committee stressed that his decision to invoke his constitutional protection is not an admission of wrongdoing but rather a response to the current political climate in which Democratic members of Congress are calling for his prosecution, the person said.

Legal experts had said Flynn was unlikely to turn over the documents without a grant of immunity because doing so might compel him to waive some of his constitutional protections.

Trump himself walked back into the Russia controversy during his visit to Israel after Prime Minister Benjamin Netanyahu, standing beside him, was asked Monday if he had any concerns about intelligence sharing with the U.S.

After Netanyahu responded he said the cooperation was terrific Trump volunteered that he "never mentioned the word or the name Israel" during his recent Oval Office conversation with top Russian diplomats.

That comment referred to revelations that he divulged classified information about an Islamic State threat in his May 10 meeting in the Oval Office with Russia's foreign minister and ambassador. U.S. officials have said the information originated with Israel. However, it has not been alleged that Trump told the Russians that Israel was the source.

Trump has defended Flynn since his ouster and called on him to strike an immunity deal because Flynn is facing a "witch hunt." The president's comments are in stark contrast to his harsh words during the 2016 campaign for people who received immunity or invoked the Fifth Amendment in the probe of former Secretary of State Hillary Clinton's use of a private email server.

"You see, the mob takes the Fifth. If you're innocent, why are you taking the Fifth Amendment?" Trump said during a September campaign rally in Iowa.

Flynn's decision not to cooperate now does not fully close the door on future cooperation with the committee. Flynn's attorney Robert Kelner said in March that Flynn wants to tell his story "should the circumstances permit." He noted it would be unreasonable for Flynn to agree to be questioned by the committee "without assurances against unfair prosecution.

Flynn's letter comes less than two weeks after the committee issued a subpoena for his documents as part of its ongoing investigation into possible collusion between Russia and Trump's campaign. In addition to the Senate investigation, Flynn is also being investigated by other congressional committees, as well as the ongoing FBI counterintelligence probe and a separate federal criminal investigation in northern Virginia.

Representatives for the Senate committee's Republican chairman, Richard Burr of North Carolina, and ranking Democrat, Mark Warner of Virginia, didn't immediately respond to calls and emails inquiring about the committee's next steps.

This is the second time he has declined to cooperate with a request from the Senate committee. He also turned down an April 28 request that was similar to ones received by other Trump associates, including former campaign chairman Paul Manafort, Trump associate Roger Stone and former foreign policy adviser Carter Page.

According to Monday's letter, the committee requested that Flynn provide a list of all meetings and communications he had with Russian officials. It also asked him to provide all records of his communications with the Trump campaign that "were in anyway related to Russia." The letter notes that the time frame of the request was Jan. 16, 2015, through Jan. 20, 2017.

Washington lawyer Nina Ginsberg, who has extensive national security law experience, said that if Flynn turned over any personal records in response to the committee's subpoena, he would waive his Fifth amendment rights regarding those documents and have to testify about them.

Ginsberg also noted that the committee faces new complications from the Justice Department's move last week to appoint Mueller as special counsel in the Russia inquiry. If the intelligence committee wants to give Flynn immunity, it will likely have to enter into discussions with Mueller to determine whether the move could impede the FBI's case.

"The committee could decide to go ahead and not worry about Mueller," Ginsberg said, but that could create new legal complications for Mueller's probe.

Lawmakers of other key congressional committees are pledging a full public airing as to why former FBI Director James Comey was ousted amid the intensifying investigations into Russia's interference with the U.S. election.

In Sunday TV appearances, both Republican and Democratic lawmakers said they will press Comey in hearings as to whether he ever felt that Trump tried to interfere with his FBI work. Some lawmakers are insisting on seeing any White House or FBI documents that detail conversations between the two, following a spate of news reports that Comey had kept careful records.

Comey was fired by Trump earlier this month. The former FBI director agreed to testify before the Senate intelligence committee after the Memorial Day holiday.

Former CIA Director John Brennan is to testify in open and closed hearings Tuesday before the House intelligence committee, which is conducting its own investigation.

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Source says Flynn to invoke 5th Amendment - Helena Daily World

Last week, in The New York Times, Ross Douthat became the latest and perhaps most prominent advocate of using the Twenty-Fifth Amendment to remove President Donald Trump from office. Section 4 of the Twenty-Fifth Amendment allows the vice president and a majority of the Cabinet to recommend the removal of the president in cases where he is unable to discharge the powers and duties of his office, and allows the House and Senate to confirm the recommendation over the presidents objection by two-thirds vote. Douthat argued that the Amendment should be invoked to stop what he calls a childish president who is unfit for office and who is unlikely to be impeached.

The response to Douthats suggestion was mixed. Jamal Greene argued for a broad reading of the amendment to remove a compulsively lying President would be unable to discharge the powers and duties of his office. On the other hand, Jonathan Bernstein at Bloomberg, Ian Tuttle in National Review, and John Daniel Davidson at The Federalist concluded, in different ways, that for elites to invoke a contested interpretation of the Twenty-fifth Amendment to remove the president would trigger a political crisis. Slates Dahlia Lithwick, in her summary of the Twenty-fifth Amendment commentary, argued that the most practical problem with the Twenty-fifth Amendment option is that it wont happen. The selfsame Cabinet and vice president tasked with assessing the president are still enabling him.

Who Is Marc Kasowitz?

Its true that the use of Section 4s involuntary-removal mechanism for the first time in American historyespecially for a president who is not ill and who still has public supportcould trigger a political crisis. Still, the constitutional test of the presidents being unable to discharge the powers and duties of the office was intended to be vague and open-ended. In 1995, Senator Birch Bayh, the father of the Twenty-fifth Amendment, quoted President Dwight Eisenhower, whose illness had helped to precipitate the drafting of the amendment, in support of the proposition that the determination of the presidents disability is really a political question.

In other words, both the president whose disability inspired the Twenty-fifth Amendment and the senator who helped to draft it viewed the definition of disability under the Amendment not as a medical decision, left to doctors, but a political decision, left to the vice president, the Cabinet, and ultimately Congress. If, at some point in the future, those officers decide it is more politically advantageous for the Republican Party to remove Trump under the Twenty-fifth Amendment than to allow him to be impeached for obstruction of justice, nothing in the text or original understanding of the Amendment would prevent them from doing so.

Because predicting the political future is impossible, lets take a deep dive into the history and original understanding of the Twenty-fifth Amendment. That history suggests that Section 4 of the Amendment was intended involuntarily to remove presidents who were clearly and unequivocally incapacitated to the point of being unable to discharge their dutiesin other words, terminally ill, in a coma, near death, or severely mentally incapacitated. But the precise definition of disability was left to the political process.

As Scott Bomboy has reported in a series of posts on the National Constitution Centers Constitution Daily, a presidential succession amendment was first contemplated after President Dwight Eisenhowers illness in the 1950s and became a reality after the Kennedy Assassination in 1963:

By 1963, Congress was debating an attempt to amend the Constitution to clear up all succession matters and add a procedure for dealing with a leader who became unable to perform the offices duties temporarily or permanently. This became a bigger issue with the realities of the Cold War and with President Dwight Eisenhowers illnesses in the 1950s.

The influential Senator Estes Kefauver had started the amendment effort during the Eisenhower era, and he renewed it in 1963. Kefauver died in August 1963 after suffering a heart attack on the Senate floor.

With Kennedys unexpected death, the need for a clear way to determine presidential succession, especially with the new reality of the Cold War and its frightening technologies, forced Congress into action.

The new President, Lyndon Johnson, had known health issues, and the next two people in line for the presidency were 71-year-old John McCormack (the Speaker of the House) and Senate Pro Tempore Carl Hayden, who was 86 years old.

The principal sponsor of the Twenty-fifth Amendment was Bayh, chair of the Senate Judiciary Subcommittee on the Constitution and Civil Justice, responsible for proposing constitutional amendments. Bayh served as the subcommittees chair for nearly two decades and he drove the process that resulted in the Twenty-fifth and 26th Amendments to the Constitution. (A third amendment championed by Bayh, the Equal Rights Amendment, was approved by the House and Senate, but it fell three states short of full ratification. But Bayh is still the only non-founding father to draft two enacted amendments to the U.S. Constitution.) Bayh proposed what became the Twenty-fifth Amendment on January 6, 1965, and it was ratified on February 10, 1967, 50 years ago.

Section 3 of the Amendment enables a president to declare himself temporarily disabled by sending a written declaration to the president pro tempore of the Senate and the speaker of the House stating that he is unable to discharge the powers and duties of his office. In this case, the powers and duties of the president are transferred to the vice president, who becomes acting president, until the president sends another a written declaration that he can resume his duties. Section 3 procedures have arguably been invoked three timesonce by Ronald Reagan and twice by George W. Bushduring medical procedures.

Section 4 of the Amendment, by contrast, enables the vice president and either the principal officers of the executive departments (the Cabinet) or another body as Congress may by law provide (a disability review body) to declare the president disabled by sending their own written declaration to the Senate president pro tempore and the House speaker. The president can respond in writing that he is not in fact disabled; the vice president and Cabinet (or disability review body) then have four days to respond. Congress then has 48 hours to decide the question (or 21 days if Congress is not in session.) If two-thirds of both houses of Congress decide that the president is indeed disabled, the vice president becomes acting president; otherwise, the president remains in office.

Section 4 procedures, involuntarily declaring the president disabled, have never been invoked. But there have been historical instances in which presidents became disabled, both physically and mentally. For example, Franklin Pierce and Calvin Coolidge experienced psychological breakdowns and debilitating depressions after the sudden and tragic deaths of their children. Woodrow Wilson had two strokes; the second was so severe it completely paralyzed him on his left side and left him unable to fulfill basic duties as he served out his last term in seclusion. And in the most relevant precedent, as George Packer reports in The New Yorker:

In 1987, when Ronald Reagan appointed Howard Baker to be his new chief of staff, the members of the outgoing chiefs team warned their replacements that Reagans mental ineptitude might require them to attempt the removal of the President under Section 4. Baker and his staff, at their first official meeting with Reagan, watched him carefully for signs of incapacitybut the President, apparently cheered by the arrival of newcomers, was alert and lively, and he served out the rest of his second term.

In proposing the Twenty-fifth Amendment, Bayh worked closely with John D. Feerick, who went on to serve as dean of Fordham Law School and is now a professor there. Feerick worked with Bayhs subcommittee to draft the language that eventually became the Twenty-fifth Amendment. He recounted the arduous process in a 1995 law journal article. As Feerick writes, the question of presidential succession was first addressed at the Constitution Convention in 1787. And the initial language about who would have executive authority if there were no president read as follows:

[I]n case of his [the President's] removal as aforesaid, death, absence, resignation or inability to discharge the powers or duties of his office, the Vice President shall exercise those powers and duties until another President be chosen, or until the inability of the President be removed.

Incorporating an initial proposal by Hugh Williamson of North Carolina, Edmund Randolph of Virginia suggested that the succession provision be modified to read:

The legislature may declare by law what officer of the U.S.-shall act as Vice President in case of the death, resignation, or disability of the President and Vice President; and such officer shall act accordingly until the time of electing a President shall arrive.

James Madison objected that these words would prevent the filling of a vacancy by means of a special election of the President and suggested as an alternative the expression "until such disability be removed, or a President shall be elected. At least one member of the Convention, John Dickinson of Delaware, immediately recognized the difficulties inherent in Madison's wording. Dickinson remarked on the proposal: "What is the extent of the term 'disability' and who is to be the judge of it?""' His observations foreshadowed the difficulties that would later prove to be so perplexing.

In a 2011 article, Feerick adds that cabinet officials and scholars between the founding and the passage of the Twenty-fifth Amendment debated who should judge what counts as a presidential disability:

During President James Garfields illness in 1881, a number of well-known legal authorities were of the opinion that inability in the Succession Clause referred solely to mental incapacity. For example, Professor Theodore W. Dwight of Columbia Law School, one of the leading constitutional authorities of that time, held this view.22 Similarly, former Senator William Eaton of Connecticut stated, There can be no disability that the President can be conscious of, and It must be a disability, as, for example, if he were insane, which is patent to everybody except himself.

Others at the time were of the view that inability was not restricted solely to mental incapacity. Rather, a case . . . exists whenever the public interest suffers because the President is unable to exercise his powers . . . .Indeed, proponents of this view believed that the inability provision of the Succession Clause should be construed broadly, covering all circumstances that might cause a President to be unable to discharge the powers and duties of his Office. For example, it was written at the time in the New York Herald that, The word inability . . . means an inability of any kind . . . of the body or mind . . . temporary or permanent, . . . [which] disables [the President] from discharging the powers and duties of his office. Massachusetts Representative Benjamin Butler, when writing of President Garfields illness, said inability includes everything in the condition of a President which precludes him from the full discharge of the powers and duties of his office in which case the discharge of these powers and duties becomes immediately the duty of the Vice-president. Other distinguished authorities reasoned that whether or not an inability exists often depends on the surrounding circumstances.

In drafting the Twenty-fifth Amendment, Feerick and Bayh left open the question of what counts as a presidential disability. As Feerick notes, The terms unable and inability are undefined in either Section 3 or 4 of the Amendment, not as the result of an oversight, but rather a judgment that a rigid constitutional definition was undesirable, since cases of inability could take various forms not neatly fitting into such a definition.

Section 4 deals with the scenario when a president is unable or unwilling to communicate a disability. According to a Congressional Research Service analysis by Thomas Neale, Section 4s wording makes it clear that the Vice President is the indispensable actor in section 4: it cannot be invoked without his agreement. Under Section 4, the vice president, either acting with the Cabinet or a group designated by Congress, can declare the president disabled. If the president is able to disagree with that decision, the vice president then can start a procedure where two-thirds of the House and Senate must agree that the president cant perform his or her duties, and the vice president remains as acting president. In the CRS report, Neale also noted: It can be further suggested that Section 4, like the impeachment process, is so powerful, and so fraught with constitutional and political implications, that it would never be used, except in the most compelling circumstances, since its invocation might well precipitate, ipso facto, a constitutional crisis.

Evan Osnoss comprehensive article in The New Yorker, How Trump Could Get Fired, agrees that the question of what constitutes a Presidents fitness for officewhether physical or mentalhas been deliberately left open and hasnt yet been answered:

[T] he definition of what would constitute an inability to discharge the duties of office was left deliberately vague. Senator Birch Bayh, of Indiana, and others who drafted the clause wanted to insure that the final decision was not left to doctors. The fate of a President, Bayh wrote later, is really a political question that should rest on the professional judgment of the political circumstances existing at the time. The Twenty-fifth Amendment could therefore be employed in the case of a President who is not incapacitated but is considered mentally impaired.

The article goes on to examine the challenging question of how to define and diagnose any purported disability manifest in a president, including President Donald Trump, and how the Twenty-fifth Amendment procedures might apply. In practice, Osnos notes, unless the President were unconscious, the public could see the use of the amendment as a constitutional coup. Measuring deterioration over time would be difficult in Trumps case, given that his judgment and ability to communicate clearly were, in the view of many Americans, impaired before he took office. For this reason, Osnos concludes: The power of impeachment is a more promising tool for curtailing a defective Presidency.

The presidential health specialist Robert Gilbert agrees. In The Mortal Presidency: Illness and Anguish in the White House, Gilbert argues that Section 4 is clearly the most controversial and potentially the most nightmarish part of the Twenty-fifth Amendment. Gilbert adds that Except in instances of obvious and severe mental impairment (such as advanced senility or dementia), the Twenty-fifth Amendment is unlikely to be of much help in dealing with psychological illness. He writes: One can only imagine the public reaction if Vice President Charles Dawes had declared that President Coolidge was psychologically impaired because of his severe depression, that he (Dawes) was initiating the process of removing Coolidge from office.

All of this is true. And yet, in his 1995 New York Times op-ed, Bayh explained why it should not be up to a panel of doctors to determine presidential illness or disability for purposes of the Twenty-fifth Amendment:

Yes, the best medical minds should be available to the President, but the White House physician has primary responsibility for the President's health and can advise the Vice President and Cabinet quickly in an emergency. He or she can observe the President every day; an outside panel of experts wouldn't have that experience. And many doctors agree that it is impossible to diagnose by committee.

Besides, as Dwight D. Eisenhower said, the determination of Presidential disability is really a political question. The Vice President and Cabinet are uniquely able to determine when it is in the nation's best interests for the Vice President to take the reins.

Because the Twenty-fifth Amendment was intended to leave the determination of presidential disability to politicians, rather than to doctors, nothing in the text or history of the Amendment would preclude the vice president, Cabinet, and Congress from determining the president is unable to discharge the powers and duties of his office if they deemed it in their political interest to do so. Whether or not that unprecedented and, at the moment, improbable conclusion materializes, of course, remains to be seen.

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The 25th Amendment Makes Presidential Disability a Political ... - The Atlantic