While the physical examination President Trump undertook last Friday may not have included an evaluation of the President’s mental health, the discussions of Trump’s mental health and fitness have put freshman Congressman Jamie Raskin (D-8th District) in the spotlight to an extent rarely experienced by first-term House members.
Raskin, who voters elected to the House after nine years representing parts of Silver Spring and Takoma Park in the General Assembly, has become a regular on the cable news circuit in the wake of revelations made in “Fire and Fury,” the explosive tell-all book by Michael Wolff, which has shined a spotlight both on Trump’s potential unfitness for office, and on Raskin’s efforts to create a Constitutional process to evaluate the fitness for the office of President, now and in the future.
But despite the recent attention, Raskin has been talking about evaluating U.S. Presidents’ fitness to serve since last May, when he introduced the Oversight Commission on Presidential Capacity Act to establish a permanent body with authority to declare whether the President can discharge the powers and duties of his office.
His bill makes use of authority granted Congress by the 25th Amendment to the Constitution, which not only authorizes the Vice President and the Cabinet to declare a President unable to discharge the duties of his office if rendered mentally or physically incapacitated, but also includes language allowing another body “as Congress may by law provide” to make such a declaration.
It is at that point where Raskin’s bill attempts to pick up the constitutional baton with the establishment of a non-partisan, 11-member commission charged with evaluating a President’s mental and physical capacity when directed by a concurrent resolution passed by Congress. The commission would consist of four psychiatrists and four physicians, with one of each to be selected by each party’s House and Senate leadership, in addition to a “former statesperson” – former Presidents or Vice-Presidents, Attorneys or Surgeons General, or Secretaries of State, Defense, or Treasury – to be selected by each party. The 10 members would then select an 11th to serve as chairperson.
While discussions of Trump’s mental health have put Raskin’s efforts squarely in the spotlight, he is adamant that his decision to introduce the OCPCA – which has garnered more than 58 co-sponsors – is in no way a response to Trump’s behavior, and maintains his approach to the issue of Presidential fitness is the approach of an expert on the Constitution and not a would-be expert on Trump’s – or any President’s – mental health.
“I’m a professor of constitutional law, which is what I’ve done for 28 years now,” Raskin said during an interview with the Sentinel last week. I specialize in every nook and cranny of the Constitution.”
Raskin said he’s always been interested in the 25th Amendment because its genesis came during a time of “progressive creativity,” between the 24th, which abolished the poll tax, and the 26th, which lowered the voting age to 18 (the same age at which Americans can be conscripted into military service).
Congress passed the 25th Amendment in the wake of the assassination of President John F. Kennedy, Raskin, explained, after it was realized that had Kennedy not succumbed to his injuries, the traumatic head wound inflicted on him by Lee Harvey Oswald would have left him in a permanent vegetative state. Such a scenario posed difficult questions in the Cold War era because even in response to a Soviet nuclear first strike, the Vice President lacked authority to order the release of nuclear weapons when a President – even an incapacitated one – remained alive.
Raskin noted that in the pre-nuclear era, Presidents have been rendered physically incapacitated during their terms of office, and pointed to President Woodrow Wilson (D) as such an example. Wilson suffered a debilitating stroke halfway through his second term which rendered him paralyzed on his left side and nearly blind. Without a mechanism to allow the Vice President to take over short of a President’s death, Wilson spent the remainder of his term relying on his wife, Edith Wilson, to act as a gatekeeper to him by examining all Executive Branch correspondence and deciding what was important enough to be brought to her husband. While she maintained that she never made any decisions about affairs of state herself, One Republican senator labeled her "the Presidentress who had fulfilled the dream of the suffragettes by changing her title from First Lady to Acting First Man.”
But another aspect of the 25th Amendment’s history, he explained, is that the nuclear issue put not just the physical health of elected officials into the public discourse, but their behavior and mental capacity as well. The framers of the 25th Amendment – Sens. Birch Bayh (D-Ind.) and Robert Kennedy (D-N.Y) understood that while erratic behavior by a member of Congress could be absorbed and dealt with because of the size of the institution, but that the executive branch was different.
“[W]e only have one President of the United States, and in the nuclear age, that’s serious business if you have someone who becomes mentally or physically incapacitated,” Raskin said.
Records of Congressional floor debates leading up to the passage of the 25th Amendment reveal that its framers envisioned mental incapacity as a credible scenario, Raskin explained, pointing to records of a Senate floor colloquy between Bayh and Kennedy in which they noted that the amendment was meant to address a Commander-in-Chief suffering from mental problems, including dementia, psychosis, disorientation, or other forms of cognitive confusion and decline.
As to what the nature of the body envisioned by the Amendment’s framers would be, Raskin said they deliberately wrote it broadly to give Congress the maximum leeway, and that it was envisioned as a permanent body to avoid ad-hoc processes that could smack of politics.
“If we don’t have a permanent body that’s available, then it becomes a very political thing, as it is now,” he said. “[It’s] unfortunate that we have to rectify that in the middle of this big debate, but so be it.”
“We should have a standing body the way the cabinet is a standing body,” he added while again emphasizing that his bill is about finishing the unfinished work of implementing the 25th Amendment – not about Trump’s fitness for office.
“The legislation does not mention Donald Trump’s name and the body should be a permanent body that is available to deal with any kind of crisis that should come along in a future Presidency,” he said. “It is the constitutional design that such a body should exist in the event of a crisis and should have the power to act.”
Responding to anyone who might suggest that the commission his bill creates would possess some manner of extra-constitutional authority to prohibit candidates based on their words or behavior preemptively, Raskin cautioned that such an idea is “clearly not the constitutional design” of his legislation. Nor is the purpose of it to create a kind of backdoor impeachment process or allow political disagreements to devolve into accusations of mental instability he said, again emphasizing the purpose of the 25th Amendment and noting that it passed with overwhelming bipartisan majorities.
“This is a constitutional mechanism that should be non-partisan in nature and should attract bipartisan support,” he said. “We are not mental health professionals, we are not neurologists, we are not psychiatrists or psychologists, and it should not be up to members of Congress to pronounce upon the capacity of the President.”
On the subject of what would constitute a presidential incapacity, Raskin again made clear that he was speaking as a constitutional law professor and not a mental health professional, and said that questions over whether a President is fit to serve could arise over a failure to uphold his constitutional responsibilities.
“The Constitution set up an executive who would take care that the laws are faithfully executed so that the President would implement the laws of Congress. That’s the role of the President – to implement the legislative will,” he said. “The 25th Amendment reinforces that design by saying that the President must be able to execute the powers and duties of office, meaning the President must be able to understand the laws and take care that the laws are faithfully executed.”
As to whether Trump’s behavior might fit that description, Raskin first demurred, saying that “It’s not up to any individual Senator or Representative to determine the cognitive, mental, or emotional health of the President,” adding that the historical context presented by the Trump Presidency “has given us a lot to worry about” and wryly noting that Trump “promiscuously discusses other people’s mental health.”
“He’s exercised his First Amendment right to do that, and no one wants to get into a name-calling game with the President,” he said. “Having said that, there are a number of signs that I think are troubling.”
Specific signs Raskin highlighted were Trump’s episodes of slurred speech, an inability to complete sentences, and signs that the President “is having a difficult time distinguishing between fact and fiction,” in particular the President’s statements that the voice on the infamous “Access Hollywood” tape – in which Trump boasted of grabbing women by the genitals – was not his, despite his previous acknowledgement that it was indeed his voice on the tape.
“A number of newspapers are calling these lies…but I disagree with that,” Raskin said. “I don’t think that they are lies in the sense that he has the intent to deceive – I think he may believe it, which means he is partaking of delusions about what is true and what is not true, and that’s extremely worrisome.”
Trump also doesn’t appear to understand the laws he is charged with enforcing, Raskin said, recalling a section in Wolff’s book which quoted former campaign aide Sam Nunberg’s description of an attempt to explain the Constitution to an uninterested Trump, then a candidate for President.
"I got as far as the Fourth Amendment before his finger is pulling down on his lip, and his eyes are rolling back in his head," Wolff quoted Nunberg as saying.
When asked for his thoughts on Trump’s understanding of the laws of the land, Raskin opined: “I’m not aware that he understands any of them. Everybody says all around that his policy depth is completely wanting.”
“But again, I’m not here to sit as an armchair neurologist,” Raskin said, noting that he has never personally interacted with President Trump, and reiterating that his bill is not specifically about Trump. “What we do need is a process that’s called for under the 25th Amendment to be able to make these difficult determinations in the event of a crisis.”
When it was pointed out that anti-Trump activists in the self-described "resistance" have made his bill a favored cause, Raskin pushed back against the idea that his bill was meant to devise a way to remove Trump from office in spite of a Republican House that would be reluctant to impeach and a Republican Senate that would be unlikely to convict.
“I don’t see it that way,” Raskin said. There’s clearly an impeachment movement which is based on high crimes and misdemeanors. The 25h Amendment test is based on Presidential capacity, and I don’t see why that should be viewed as a political or partisan thing.”
In fact, he noted, one could be a rock-ribbed Republican who’d never consider impeachment and still have concerns that Trump is unable to discharge his duties because those are “two completely different questions.”
You could be opposed to both of them, be for one but not the other, or you could be for both of them,” he said.
But if there are Republican critics of his bill who might still consider it a backdoor to impeachment, Raskin was dismissive.
“There are people who’d like to read the 25h Amendment out of the Constitution, but every part of the Constitution is part of the Constitution,” he said. “The irony is that a lot of the people who are pretending that the 25th Amendment doesn’t exist are the same people who were happy to impeach Bill Clinton for telling a single lie about sex.”
Raskin’s leadership on this issue has made him a fixture on cable news, and his appearances have grown more frequent as discussions of Trump’s fitness for office have increased in intensity. However, he wouldn’t say whether his relative lack of seniority among House Democrats means someone else might be a better leader on the issue.
“I’ll let other people be the judge of that – “I’ve got 58 co-sponsors, a bunch of are discussing what we’re doing, and I view it as a collective activity,” he said. “I claim no special expertise about mental health or neurology – I’m dealing with this as a matter of constitutional structure and design.”
Asked about how he thought his constituents would react to the way his leadership on this issue has raised his profile among House Democrats and in the Progressive movement, Raskin said such things were old hat for him, pointing to his record in the House of Delegates, where he led the successful fight to abolish the death penalty, was a floor leader in debates over marriage equality, and spent years as a champion of gun safety legislation.
“I think people will see it in the context of my interest in constitutional law and making government effective,” he said.