The 25th Amendment

Part 1: A True Story

1

In 1981, I was privileged to work as a young lawyer in the Office of Legal Counsel in the Department of Justice. I started in 1980 under President Jimmy Carter, when his Administration was winding down.

I continued to work there when new excitement began under President Ronald Reagan, who was brimming with new plans and ideas, some of which raised novel legal issues.

Just a few weeks after Reagan’s inauguration, my terrific, energetic, amiable, and far-sighted new boss, Assistant Attorney General Ted Olson, brought me into his big office, on the 5th floor of the Department of Justice.

He said, “I need you to become the world’s leading expert on the 25th Amendment.”.

Ok, I guess. I prided myself on knowing something about the Constitution, but I had to stay quiet. The reason? I had no idea what that amendment was.

I didn’t confess my ignorance. Instead I told Ted that I would get right to work.

2

After I left his office, I immediately looked up the text, and here’s what I found:

Section 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, 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.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

3

Oh.

4

I was amazed by what I read, not only because the text was entirely unfamiliar, but also because that was what Ted wanted me to write about. The two provisions are interesting, and they have plenty of mysteries, but Ted’s request for a formal, detailed memorandum seemed bizarre.

The reason? Most of OLC’s work was (and is) focused on immediately pressing legal issues, even crises. The president wants to fire the air traffic controllers, who are going on strike. Can he? The president was to use military force overseas. Can he do that?

By contrast, sections 3 and 4 of the 25th Amendment seemed to deal with an entirely hypothetical problem. President Reagan was seventy years old, but he was the picture of good health.

Why on earth was I asked to write that memorandum? Why was I asked to become “the world’s leading expert” on this obscure constitutional provision?

It seemed like pretty academic work. As Ted explained it, my memorandum was for general background, in the most unlikely event that a relevant crisis emerged.

4

Almost exactly one month later, John Hinckley shot President Reagan. On the fifth floor of the Justice Department, about ten of OLC’s lawyers, including me, sat crowded around a television set, where the reporters solemnly explained that the President was fine.

It was dramatic and traumatic and riveting – but not tragic. We were all relieved. Crisis averted.

As I sat in the little group, I felt a tap on my shoulder. It was Ted, who needed to speak with me privately. He took me into a hallway, where his voice lowered to a whisper.

5

“The President is in worse shape than they’re saying,” he explained, in his cool, steady voice.

“We don’t know what will happen, but we need to be prepared. You remember the details of your 25th amendment memorandum, don’t you? You know exactly what to do, right? So what do we do?”

He explained that of the countless lawyers in the building, I was “the only 25th amendment expert” (at which point my heart felt into my stomach) - and I needed to get to work.

The top officials - everyone important, it seemed - at the Department left for the White House. I stayed (and felt very lonely).

For two hours or so, I was manning the fort, or so it felt, sitting alone not in my little office, but in Ted’s, in front of his huge desk. My hall looked empty, so it seemed as if no one else was there in the entire Justice Department.

Just three years out of law school, I was asked, in the strictest confidence, to figure out the next steps. Because of Ted’s direction, I knew what those steps were.

I had to write two memoranda, to remove the newly elected Reagan from the presidency.

I remember Alexander Haig, then Secretary of State, saying on tv (it was on in the office), “I’m in control here.” I could not believe it. My gosh. I almost shouted at the screen: “UNDER THE CONSTITUTION, YOU ARE NOT IN CONTROL HERE!”

6

The first memorandum, to be signed by President Reagan (if he was able), would comply with Section 2. It would be a written declaration that he was unable to discharge the powers and duties of his office.

The second, to be signed by Vice President Bush and the Cabinet, would make the same declaration.

On an old manual typewriter, I typed out the two memoranda. The need for secrecy was such that no secretary could be involved.

I left black lines for the relevant signatures (they seemed the most momentous parts), and I typed out all their names, letter by letter. As I recall, my hands did not tremble; it must have been the adrenaline. The task was mechanical, but I was pretty intensely focused.

I put the two memoranda in a tightly sealed yellow envelope, which a messenger hand-delivered to the White House.

7

Of course the press was constantly calling the Department, and no one was there to answer their questions. I told the secretaries that I would not speak to anyone. All the while, I was thinking, “who am I, to tell the secretaries anything?” (I had no idea what I could or should say to any reporter.)

But the New York Times was particularly insistent, and its reporter was put through to me. He had one question: “We have a report that the Department has just sent over two memoranda, by which the Vice President would assume the presidency. Can you confirm that?”

I was flabbergasted. How on earth did they know that?

I still have no idea. As he waited for an answer, time seemed to stand still. What to say? Instead of confessing, weeping, screaming, or falling apart, my mind seized upon two magic words, a kind of life raft, that I had learned from old television shows: “No comment.”

8

Thankfully, Reagan turned out to be okay. I didn’t know all the details, not close, and still don’t, but we didn’t need to invoke the 25th amendment. I wonder if the documents I typed are in some official records somewhere.

9

(More is likely to come, on the meaning of the 25th amendment. There are a few complications. Note: I am drawing here on a chapter of my book, Impeachment: A Citizen’s Guide.)