DONALD J. TRUMP, ALLEGED INCAPACITATED PERSON

Mental Incapacity, the Electoral College, and the Twenty-Fifth Amendment

JAMES A. HERB, ESQ.

Donald J. Trump became an “alleged incapacitated person” on October 4, 2016, when I filed a petition to determine his mental incapacity in the Palm Beach County Circuit Court. I claim legal standing to commence such a proceeding as an adult and a resident of Florida, and based on the fact that Trump’s apparent lack of mental capacity to function could impact me and possibly the whole world, in addition to him.

Before the Election

I have a B.A. and M.A. in political science, and have always been a political junkie of sorts. I followed the televised Watergate hearings leading up to President Nixon’s resignation in 1974. I taught a course on the Constitution and politics after I received my law degree. I followed the impeachment proceedings of President Clinton. I lived through each day of Bush v. Gore, but nothing prepared me for Trump’s presidential campaign, which started with a ride down an escalator. Perhaps the symbolism was prophetic: instead of ascending to the heights, he was descending to the depths, and taking us all with him. How low could an escalator go? I never imagined that Trump’s style of campaigning could thrive in our society.

Like many, I assumed that Trump would not get the Republican nomination for president. Then, in July 2016, he did. I started to agonize over the possibility of a Trump presidency. It was true, of course, that two hurdles still stood between Trump’s nomination and what I believed might be the Apocalypse. One was the general election, to take place on November 8, 2016. The second (should Trump win) was the voting of the Electoral College, to take place on December 19, 2016. Was there anything that I, a simple probate attorney, an ordinary citizen, could do?

I started to review the public record regarding things Trump had said and done. I compiled a list of two hundred items that I believed reflected his mental disability to discharge the duties of a president. The list could have been substantially larger, but I stopped at two hundred.

There was a lot of commentary on the Internet about Trump’s mental state. There were also Internet petitions seeking a determination (by someone) that Trump lacked the mental capacity to be president. No one suggested a court proceeding. I reviewed the Goldwater rule (discussed in more detail in part 2 of this book) and its apparent prohibition of certain mental health professionals from diagnosing the mental health of a public official from afar. The irony of this is that I, not a mental health professional and perhaps less formally trained to make such a diagnosis, in no way come under the Goldwater rule prohibition. To the contrary, part of my job as a guardianship attorney is to come to a preliminary conclusion about the mental incapacity of a person before I file a petition to determine incapacity.

Once, when I tuned in to watch a Trump rally on TV, he was reciting lyrics from a song titled, “The Snake,” about a tenderhearted woman who rescues a half-frozen snake, only to be fatally bitten by it once it has revived. The snake says, “You knew damn well I was a snake before you took me in.” I thought Trump was speaking about himself, and the American people were the tenderhearted woman. It turned out he was speaking about immigrants as being vicious snakes.

This story is similar to other animal fables, perhaps best illustrated by the story of the scorpion and the frog, which is told in various forms. In one telling, a scorpion asks a frog to carry him on his back in a swim across a pond. The frog is reluctant, fearful of the scorpion’s sting. The scorpion argues that he obviously won’t sting the frog, because if he does, they will both drown. So, they start crossing the pond, and midway across, the scorpion stings the frog. Just before they sink below the surface of the water, the frog asks the scorpion why he has stung him. The scorpion replies, “I can’t control my nature.”

I was concerned that we might end up with a scorpion king in the White House, someone who was unable to control a dangerous part of his nature.

Having practiced guardianship law for almost forty years, I believed that it might be appropriate to start an “incapacity” proceeding in Palm Beach County (where Trump maintains a residence at Mar-a-Lago), and, ultimately, to have a three-person examining committee appointed to interview Trump and file reports as to whether he lacked the mental capacity to be president. While I have handled many incapacity proceedings, I would be dealing with someone who was clearly not a normal abnormal person.

If the court had proceeded and ultimately determined that Trump was incapacitated, it could not have prevented him from running—Trump met the age and other eligibility requirements to be president as set forth in the Constitution—but such a determination would have been an appropriate consideration for the electorate in going to the polls and deciding for whom to vote.

My petition was ready to go in mid-August 2016, but instead of filing it, I decided to speak to various people about it. These people were not part of any presidential campaign and were not political party officials. I spoke to lawyers, nonlawyers, and retired judges. I spoke to Republicans, Democrats, and Independents. To me, it wasn’t an issue of partisan politics; it was an issue of the survival of our democracy. I also thought long and hard about proceeding. Did I wish to antagonize someone who might become president? Did I want to antagonize someone so vindictive, so litigious? Might I be sued for defamation? Might my life, as I knew it, end?

I decided that the issue was so extremely important to everyone in our country, and possibly to everyone in the world, that I felt compelled to file the petition to determine incapacity, as a patriotic duty.

I filed the petition a little more than a month before the November 8, 2016, election. It alleged that Trump was or might be incapacitated to seek or retain employment, based on the following factual information: (1) that his actions/statements appeared to support a diagnosis of histrionic personality disorder, DSM-V 301.50, meeting diagnostic criteria 1 through 8; and (2) that his actions/statements appeared to support a diagnosis of narcissistic personality disorder, DSM-V 301.81, meeting diagnostic criteria 1 through 9. I attached my list of two hundred supporting statements made by Trump during the course of his campaign.

The first judge assigned to the case recused herself. The second assigned judge ordered that I explain why my petition ought not be dismissed, and to address whether a state court could restrict Trump from seeking the presidency, given that Trump met the sole eligibility requirements to be president as set forth in Article II, Section 1, Clause 5 (at least thirty-five years old, a U.S. resident for fourteen years, and a natural born citizen), of the Constitution.

The day before the election, the court dismissed my incapacity proceeding.

After Election Day: The Electoral College

After Election Day (and before the date for the Electoral College to meet and vote), I asked that the court reconsider its decision, arguing that the issue of whether Trump was mentally incapacitated was not moot, given that the president is selected by members of the Electoral College, and not by a direct vote of the electorate. Perhaps the Electoral College could save us.

I argued that it was the original intent of the Framers of the Constitution, as explained in Alexander Hamilton’s Federalist No. 68, March 12, 1788, that the electors were to provide wisdom and judgment (beyond that held by the general public) in making the selection of the president. The president is to be selected by the “sense of the people” operating through electors selected by the people for that particular purpose. The election of the president “should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation and to a judicious combination of all the reasons and inducements, which were proper to govern their choice.” Hamilton also wrote, “A small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.” The process of election through electors “affords a moral certainty, that the office of president, will seldom fall to the lot of any man, who is not in an eminent degree endowed with the requisite qualifications.”

I pointed out that Supreme Court Justice Robert H. Jackson (who was also the architect of the international war crimes trials of Nazi leaders as well as the lead American prosecutor at Nuremberg) said that the plan originally contemplated was “that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest office.” Justice Jackson went on: “This arrangement miscarried. Electors, although often personally eminent, independent, and respectable, officially became voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire:

They always voted at their Party’s call

And never thought of thinking for themselves at all.

“As an institution, the Electoral College suffered atrophy almost indistinguishable from rigor mortis” (Ray v. Blair, 343 U.S. 214, 232 [1952], Justice Robert H. Jackson dissenting).

I added that the Framers intended electors to be persons of “superior discernment, virtue, and information,” who would select the president “according to their own will” and without reference to the immediate wishes of the people (Ray v. Blair, 343 U.S. 214, 232 [1952], Justice Robert H. Jackson dissenting). That “Electors constitutionally remain free to cast their ballots for any person they wish and occasionally they have done so” (U.S. Senate 2013).

While a state court determination that Trump lacked “mental capacity” to be president would not automatically have disqualified him from serving, such a determination would have been vital information for members of the Electoral College to have. Having as much relevant information as possible is a prescription from the Founders to the members of the Electoral College, necessary for members to perform their function properly.

The court did not change its holding. Trump was selected by the Electoral College on December 19, 2016, and was inaugurated on January 20, 2017.

After Inauguration: The Twenty-Fifth Amendment

I saw no “presidential pivot” by Trump in his first ten days in office, so, on January 30, 2017, I filed a second petition to determine incapacity.

In those first ten days, Trump espoused at least two delusional beliefs. One was as to the size of the crowd at his inauguration; a second was that Secretary Clinton had won the popular vote in the presidential election only because between three million and five million illegal votes had been cast.

Also in those first ten days, Trump issued various executive orders that demonstrated his mental inability to comprehend the following: what is and is not legal (the immigration ban); what he can and cannot do without getting funding approval from Congress (building a border wall with Mexico); and what is and is not in the best interest of our country’s security (Steve Bannon is in, and certain Cabinet-level officers are out). Trump alienated Mexico; alienated nations across the world with his immigration ban; displayed an inability to vet issues and actions with appropriate parts of the U.S. government before taking action; and displayed a total inability to anticipate (or even consider) the impact of his statements and actions.

My petition asserted that in order for him to continue as president, he needed to have the mental capacity to:

• separate fact from fiction;

• think through an issue or matter before speaking or taking action;

• be able and willing to learn about issues;

• apply coherent decision making to fact;

• communicate coherently;

• be consistent (without vacillating or “flip-flopping”) with statements he makes;

• comprehend likely results from saying certain things or taking certain actions;

• differentiate between acceptable decisions and horrendous decisions;

• be willing to understand, protect, and defend the U.S. Constitution, including its provisions that relate to the functioning of the executive branch and the rights of citizens under the Bill of Rights;

• keep himself from committing high crimes and misdemeanors as that term appears in the U.S. Constitution, Art. II, Sec. 4, regarding impeachment;

• make agreements and keep those agreements;

• learn about and conduct foreign policy on behalf of the United States;

• deal reasonably and effectively with other people;

• not be delusional;

• understand basic democratic principles, including: the importance of a free and fair election (and the importance of not claiming it is “rigged” before it has occurred); the undemocratic nature of intending to jail his election rival; and the danger of propounding multiple conspiracy theories against him; and

• be stable (i.e., not having mental instability) in his thoughts and speech.

I asserted that the statements of Trump support a determination that he suffers from narcissistic personality disorder, which would make him mentally incapable of continuing as president, and that he:

• has a grandiose sense of self-importance;

• is preoccupied with fantasies of unlimited success, power, or brilliance;

• believes that he is special and unique;

• requires excessive admiration;

• has a sense of entitlement (i.e., has unreasonable expectations of especially favorable treatment or automatic compliance with his expectations);

• is interpersonally exploitive (i.e., takes advantage of others to achieve his own ends);

• lacks empathy, being unwilling or unable to recognize or identify with the feelings and needs of others; and

• shows arrogant, haughty behaviors or attitudes.

I asserted that the statements of Trump support a determination that he suffers from histrionic personality disorder, which would make him mentally incapable of continuing as president, and that he:

• has had interactions with others that are often characterized by inappropriate sexually seductive or provocative behavior;

• displays rapidly shifting and shallow expressions of emotions;

• has a style of speech that is excessively impressionistic and lacking in detail;

• shows self-dramatization, theatricality, and exaggerated expression of emotion; and

• is suggestible (i.e., easily influenced by others or circumstances).

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.