President Trump has created the situation the 25th Amendment tried to prevent

Successful use of the amendment requires transparency and truthfulness — and open sharing of information about the president's health and state of mind

Steven M. Gillon
Washington DC
Monday 05 October 2020 15:49
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The president spoke from hospital over the weekend
The president spoke from hospital over the weekend

President Donald Trump's hospitalization for an apparently serious case of the coronavirus has sparked discussion of the 25th Amendment to the Constitution, which clarified the rules of presidential succession. While some members of Congress began calling for changes following President Eisenhower's 1955 heart attack, it was the confusion and chaos surrounding the assassination of President John F. Kennedy on November 22, 1963, that inspired passage of the amendment in 1967.

Before 1963, seven presidents had died in office, leaving the vice president to assume the powers of office. The pattern was set in 1841, when Vice President John Tyler filled the vacancy created by the death of President William Henry Harrison. Harrison had contracted pneumonia after just a few weeks in office and died on April 4.

Tyler insisted that he take over both the title and the powers of the presidency, but many observers believed he should simply serve as "acting president," with limited authority. After spirited debate, Congress sided with Tyler, thus establishing the "Tyler precedent" in which a successor would inherit full presidential power.

Less than a decade later, the nation lost another commander in chief — Zachary Taylor, who became ill after eating milk and cherries at a celebration on July 4, 1850, and died after five days.

After the death of Taylor, assassins felled three presidents between 1865 and 1901, starting when John Wilkes Booth dashed into Abraham Lincoln's box at the Ford Theater on the evening of April 14, 1865. Lincoln died of a head wound the next morning.

In 1881, President James Garfield lingered for two and a half months after being shot before finally dying of blood poisoning. Similarly, William McKinley did not die for five days after Leon Czolgosz shot him in 1901.

After McKinley, the next two presidents to die in office passed from natural causes. Warren G. Harding had been sick for a week before a heart attack ended his life on August 2, 1923. When Franklin D. Roosevelt died on April 12, 1945, it had already been whispered in the White House that he would not survive a fourth term, so his death, while abrupt, was not unexpected.

In all seven cases, whether death resulted from natural causes or from an assassin's bullet, the vice president had a chance, however brief, to ponder the moment, consulting with friends and colleagues. "I walked the floor all night long feeling a responsibility greater than I had ever felt before," Andrew Johnson wrote a friend after learning that Lincoln had been shot.

However, things were quite different for Lyndon B. Johnson as the traumatic events unfolded on that tragic afternoon in Dallas. Never before had the transition of power been so sudden.

With little constitutional guidance or precedent, and hindered by intense confusion at Parkland Hospital, and the grief of Kennedy's close advisers and friends, the nation was without a functioning head of state for nearly 45 minutes after Lee Harvey Oswald shot Kennedy, leaving the president brain-dead. During this time, Johnson remained in the emergency room, isolated from the levers of power, having no contact with advisers in Washington or members of the Kennedy Cabinet — many of whom were aboard a plane flying to Japan.

Johnson's path to the presidency was clear if Kennedy died, but the Constitution was silent on the question of presidential disability. What if doctors managed to keep Kennedy's heart beating? The rules were so confusing that following President Woodrow Wilson's stroke in 1919, his wife Edith, and not the vice president, ran the country for the remaining 19 months of Wilson's term.

Some semblance of a precedent had been established in 1957, after Eisenhower suffered a mild stroke. He and Vice President Richard M. Nixon agreed that the president would, if possible, inform the vice president of his disability, and the vice president "would serve as Acting President, exercising the powers and duties of the office until the inability had ended." If such communication were impossible, "the Vice President, after such consultation as seems to him appropriate under the circumstances," would make the decision and "serve as Acting President until the inability had ended." In either case, the president "would determine" when he was able to "resume the full exercise of the powers and duties of the Office."

Kennedy and Johnson had assented in a memorandum of understanding to continue this practice. This document also established specific criteria about whom the vice president must consult before assuming the powers of the presidency — the Cabinet, and crucially from Johnson's perspective, the attorney general — Kennedy's brother Robert — who would provide legal advice that the circumstances justified a transfer of power.

This clause weighed heavily on Johnson. Given the animosity between him and Attorney General Kennedy, it must have crossed Johnson's mind that the president's brother might try to block his ascension, or at the very least conspire to limit his powers by attempting to disguise the seriousness of the president's injuries. Would Robert Kennedy assume the role of Edith Wilson, acting as de facto president while her stricken husband lay in seclusion? For that reason, Johnson refused to leave Parkland Hospital until he received definitive word from the Secret Service and Kennedy's de facto chief of staff that the president had died.

Once Johnson finally left the hospital and boarded Air Force One, he was confronted with a second question. Article II of the Constitution stipulated that before the president "enter on the execution of his Office," he needed to take an "oath or affirmation." But Johnson did not know whether taking the oath was a ceremonial act, designed to convey a sense of unity and symbolize the power of the presidency, or a constitutionally mandated requirement.

Even constitutional scholars were divided. Some argued that Johnson was president in title only until he took the oath. He could not initiate any action or sign any laws unless he did so. Others argued that it was unnecessary: He took an identical oath when he became vice president. There was no need to repeat it now.

Johnson may have believed that he automatically became president as soon as Kennedy was declared dead, but he did not want any lingering ambiguity or uncertainty about his presidential powers during the three-hour flight back to Washington. He knew that every vice president had taken the oath, usually within hours of the death of the president. Johnson had been a congressman when Roosevelt died suddenly in 1945. He remembered Truman rushing to the White House, where he took the oath of office two hours and 34 minutes after Roosevelt's death.

With these facts in mind, Johnson requested that Air Force One wait in sweltering Dallas heat for a federal judge to board the plane and administer the oath, a decision that infuriated Kennedy's loyal aides — who already had deep skepticism toward Johnson. But even the Kennedy aides weren't certain.

Top aide Kenneth O'Donnell believed the oath was unnecessary and that Johnson was being insensitive to a grief-stricken Jacqueline Kennedy's wishes to depart. "He is the president of the United States the minute they say, 'You're dead,' with all the powers of the presidency," he reflected. Back in Washington, however, the attorney general told friends that he opposed Johnson taking the oath in Dallas because he wanted his brother to return to Washington "one last time" as president.

And this wasn't some procedural nicety at the height of the Cold War. Undersecretary of state George Ball recalled everyone in Washington was asking the same question: "Was it a plot? The beginning of a Soviet move? The first step in a coup attempt?" The United States needed a chief executive to reassure the nation, comfort allies and deter adversaries.

That pushed Congress into action, hoping to avoid a repeat of the guesswork that had occurred in Dallas by passing the 25th amendment. The legislation, submitted in January 1965, sailed through Congress and was sent to the states for ratification in July of that year. The new amendment established clear procedures in the event the president becomes incapacitated or dies in office. The presidential disability provision of the amendment has been used only three times, and always when the president has undergone minor medical procedures that required anesthesia.

Those who crafted the amendment never anticipated having to deal with a president like Trump, or with a disease about which we know so little. Successful use of the amendment requires transparency and truthfulness — and open sharing of information about the president's health and state of mind. Conflicting accounts about Trump's health have only served to create confusion and uncertainty — the very things that the amendment was designed to prevent.

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Washington Post

Gillon is a senior faculty fellow at the Miller Center at the University of Virginia and scholar-in-residence at HISTORY. He teaches history at the University of Oklahoma and is author of "America's Reluctant Prince: The Life of John F. Kennedy, Jr."

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