Unfit for Office

Donald Trump’s narcissism makes it impossible for him to carry out the duties of the presidency in the way the Constitution requires.

On a third-down play last season, the Washington Redskins quarterback Alex Smith stood in shotgun formation, five yards behind the line of scrimmage. As he called his signals, a Houston Texans cornerback, Kareem Jackson, suddenly sprinted forward from a position four yards behind the defensive line.

Jackson’s timing was perfect. The ball was snapped. The Texans’ left defensive end, J.J. Watt, sprinted to the outside, taking the Redskins’ right tackle with him. The defensive tackle on Watt’s right rushed to the inside, taking the offensive right guard with him. The result was a huge gap in the Redskins’ line, through which Jackson could run unblocked. He quickly sacked Smith, for a loss of 13 yards.

Special-teams players began taking the field for the punt. But Smith didn’t get up. He rolled flat onto his back, pulled off his helmet, and covered his face with his hands. He was clearly in excruciating pain. The slow-motion replay immediately showed the television audience why: As Smith was tackled, his right leg had buckled sharply above the ankle, with his foot rotating significantly away from any direction in which a human foot ought to point. The play-by-play announcer Greg Gumbel said grimly, “We’ll be back,” and the network abruptly cut to a break. There was nothing more to say.

Even without the benefit of medical training, and even without conducting a physical examination, viewers knew what had happened. They may not have known what the bones were called or what treatment would be required, but they knew more than enough, and they knew what really mattered: Smith had broken his leg, very badly. They knew that even if they were not orthopedists, did not have a medical degree, and had never cracked open a copy of Gray’s Anatomy. They could tell—they were certain—something was seriously wrong.

And so it is, or ought to be, with Donald Trump. You don’t need to be a weatherman to know which way the wind blows, and you don’t need to be a mental-health professional to see that something’s very seriously off with Trump—particularly after nearly three years of watching his erratic and abnormal behavior in the White House. Questions about Trump’s psychological stability have mounted throughout his presidency. But those questions have been coming even more frequently amid a recent escalation in Trump’s bizarre behavior, as the pressures of his upcoming reelection campaign, a possibly deteriorating economy, and now a full-blown impeachment inquiry have mounted. And the questioners have included those who have worked most closely with him.

No president in recent memory—and likely no president ever—has prompted more discussion about his mental stability and connection with reality. Trump’s former chief of staff John Kelly is said to have described him as “unhinged,” and “off the rails,” and to have called the White House Crazytown because of Trump’s unbalanced state. Trump’s former deputy attorney general, Rod Rosenstein, once reportedly discussed recruiting Cabinet members to invoke the Twenty-Fifth Amendment, the Constitution’s provision addressing presidential disability, including mental disability.

Rosenstein denies that claim, but it is not the only such account. A senior administration official, writing anonymously in The New York Times last September, described how, “given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment”—but “no one wanted to precipitate a constitutional crisis.” And NBC News last week quoted someone familiar with current discussions in the White House warning that there is “increasing wariness that, as this impeachment inquiry drags out, the likelihood increases that the president could respond erratically and become ‘unmanageable.’” In September, a former White House official offered a similar assessment to Business Insider reporter: “No one knows what to expect from him anymore,” because “his mood changes from one minute to the next based on some headline or tweet, and the next thing you know his entire schedule gets tossed out the window. He’s losing his shit.”Even a major investment bank has gotten into the mix, albeit in a roundabout way: JPMorgan Chase has created a “Volfefe Index—named after Trump’s bizarre May 2017 “covfefe” tweet—designed to quantify the effect that Trump’s impulsive tweets have on interest-rate volatility. The bank’s press release understatedly observed that its “volatility fair value model” shows that “the president’s remarks on this social media platform [have] played a statistically significant role in elevating implied volatility.”
The president isn’t simply volatile and erratic, however—he’s also incapable of consistently telling the truth. Those who work closely with him, and who aren’t in denial, must deal with Trump’s lying about serious matters virtually every day. But as one former official put it, they “are used to the president saying things that aren’t true,” and have inured themselves to it. Trump’s own former communications director Anthony Scaramucci has on multiple occasions described Trump as a liar, once saying, “We … know he’s telling lies,” so “if you want me to say he’s a liar, I’m happy to say he’s a liar.” He went on to address Trump directly: “You should probably dial down the lying because you don’t need to … So dial that down, and you’ll be doing a lot better.”That was good advice, but clearly wishful thinking. Trump simply can’t dial down the lying, or turn it off—even, his own attorneys suggest, when false statements may be punished as crimes. A lawyer who has represented him in business disputes once told me that Trump couldn’t sensibly be allowed to speak with Special Counsel Robert Mueller, because Trump would “lie his ass off”—in effect, that Trump simply wasn’t capable of telling the truth, about anything, and that if he ever spoke to a prosecutor, he’d talk himself into jail.Trump’s lawyers in the Russia investigation clearly agreed: As Bob Woodward recounts at length in his book Fear, members of Trump’s criminal-defense team fought both Trump and Mueller tooth and nail to keep Trump from being interviewed by the Office of Special Counsel. A practice testimonial session ended with Trump spouting wild, baseless assertions in a rage. Woodward quotes Trump’s outside counsel John Dowd as saying that Trump “just made something up” in response to one question. “That’s his nature.” Woodward also recounts Dowd’s thinking when he argued to Trump that the president was “not really capable” of answering Mueller’s questions face to face. Dowd had “to dress it up as much as possible, to say, it’s not your fault … He could not say what he knew was true: ‘You’re a fucking liar.’ That was the problem.” (Dowd disputes this account.) Which raises the question: If Trump can’t tell the truth even when it counts most, with legal jeopardy on the line and lawyers there to help prepare him, is he able to apprehend the truth at all?
Behavior like this is unusual, a point that journalists across the political spectrum have made. “This is not normal,” Megan McArdle wrote in late August. “And I don’t mean that as in, ‘Trump is violating the shibboleths of the Washington establishment.’ I mean that as in, ‘This is not normal for a functioning adult.’” James Fallows observed, also in August, that Trump is having “episodes of what would be called outright lunacy, if they occurred in any other setting,” and that if he “were in virtually any other position of responsibility, action would already be under way to remove him from that role.”

Trump’s erratic behavior has long been the subject of political criticism, late-night-television jokes, and even speculation about whether it’s part of some incomprehensible, multidimensional strategic game. But it’s relevant to whether he’s fit for the office he holds. Simply put, Trump’s ingrained and extreme behavioral characteristics make it impossible for him to carry out the duties of the presidency in the way the Constitution requires. To see why first requires a look at what the Constitution demands of a president, and then an examination of how Trump’s behavioral characteristics preclude his ability to fulfill those demands.

The Framers of the Constitution expected the presidency to be occupied by special individuals, selfless people of the highest character and ability. They intended the Electoral College to be a truly deliberative body, not the largely ceremonial institution it has become today. Because the Electoral College, unlike Congress and the state legislatures, wouldn’t be a permanent body, and because it involved diffuse selections made in the various states, they hoped it would help avoid “cabal, intrigue and corruption,” as Alexander Hamilton put it in “Federalist No. 68,” and deter interference from “these most deadly adversaries of republican government,” especially “from the desire in foreign powers to gain an improper ascendant in our councils.”

Though the Constitution’s drafters could hardly have foreseen how the system would evolve, they certainly knew the kind of person they wanted it to produce. “The process of election affords a moral certainty,” Hamilton wrote, “that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” “Talents for low intrigue, and the little arts of popularity,” might suffice for someone to be elected to the governorship of a state, but not the presidency. Election would “require other talents, and a different kind of merit,” to gain “the esteem and confidence of the whole Union,” or enough of it to win the presidency. As a result, there would be “a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.” This was the Framers’ goal in designing the system that would make “the choice of the person to whom so important a trust was to be confided.”Hamilton’s use of the word trust in The Federalist Papers to describe the presidency was no accident. The Framers intended that the president “be like a fiduciary, who must pursue the public interest in good faith republican fashion rather than pursuing his self-interest, and who must diligently and steadily execute Congress’s commands,” as a recent Harvard Law Review article puts it. The concept is akin to the law of private fiduciaries, which governs trustees of trusts and directors and officers of corporations, an area that has been central to my legal practice as a corporate litigator. “Indeed,” as the Harvard Law Review article explains, “one might argue that what presents to us as private fiduciary law today had some of its genesis in the law of public officeholding.” The overarching principle is that a fiduciary—say, the CEO of a corporation—when acting on behalf of a corporation, has to act in the corporation’s best interests. Likewise, a trustee of a trust must use the assets for the benefit of the beneficiary, and not himself (a fundamental rule, incidentally, that Trump apparently couldn’t adhere to with his own charitable foundation).
In providing for a national chief executive, the Framers incorporated the very similar law of public officeholding into his duties in two places in the Constitution—in Article II, Section 3 (the president “shall take Care that the Laws be faithfully executed”), and in Article II, Section 1, Clause 8, which requires the president to “solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States.” That language—particularly the words faithfully execute—was in 1787 “very commonly associated with the performance of public and private offices,” the Harvard Law Review article points out, and “anyone experienced in law or government” at that time would have recognized what it meant, “because it was so basic to … the law of executive officeholding.” In a nutshell, while carrying out his official duties, a president has to put the country, not himself, first; he must faithfully follow and enforce the law; and he must act with the utmost care in doing all that.

But can trump do all that? Does his personality allow him to? Answering those questions doesn’t require mental-health expertise, nor does it really require a diagnosis. You can make the argument for Trump’s unfitness without assessing his mental health: Like James Fallows, for example, you could just ask whether Trump would have been allowed to retain any other job in light of his bizarre conduct. At the same time, the presence of a mental disorder or disturbance doesn’t necessarily translate to incapacity; to suggest otherwise would unfairly stigmatize tens of millions of Americans. Someone battling a serious psychological ailment can unquestionably function well, and even nobly, in high public office—including as president. The country, in fact, has seen it: Abraham Lincoln endured “no mere case of the blues”; he suffered such “terrible melancholly,” said one of his contemporaries, that “he never dare[d] carry a knife in his pocket.” Many historians speculate that he suffered from what we would now diagnose as clinical depression. Yet Lincoln’s mechanisms for coping with his lifelong affliction may have supplied him with the vision, the creativity, and the moral fortitude to save the nation, to achieve for it a new birth of freedom. As a writer in this magazine once put it: Lincoln’s “political vision drew power from personal experience … Prepared for defeat, and even for humiliation, he insisted on seeing the truth of both his personal circumstances and the national condition. And where the optimists of his time would fail, he would succeed, envisioning and articulating a durable idea of free society.”

More than a diagnosis, what truly matters, as Lincoln’s case shows, is the president’s behavioral characteristics and personality traits. And understanding how people behave and think is not the sole province of professionals; we all do it every day, with family members, co-workers, and others. Nevertheless, how the mental-health community goes about categorizing those characteristics and traits can provide helpful guidance to laypeople by structuring our thinking about them.And that’s where the Diagnostic and Statistical Manual of Mental Disorders comes into play. The DSM, now in its fifth edition, “contains descriptions, symptoms, and other criteria for diagnosing mental disorders,” and serves as the country’s “authoritative guide to the diagnosis of mental disorders.” What’s useful for nonprofessionals is that, for the most part, it’s written in plain English, and its criteria consist largely of observable behaviors—words and actions.That’s especially true of its criteria for personality disorders—they don’t require a person to lie on a couch and confess his or her innermost thoughts. They turn on how a person behaves in the wild, so to speak. If anything, a patient’s confessions in an office may disadvantage a clinician, because patients can and do conceal from clinicians central aspects of their true selves. If you can observe people going about their everyday business, you’ll know a lot more about how they act and behave.
And Donald Trump, as president of the United States, is probably the most observable and observed person in the world. I’ve personally met and spoken with him only a few times, but anyone who knows him will tell you that Trump, in a way, has no facade: What you see of him publicly is what you get all the time, although you may get more of it in private. Any intelligent person who watches Trump closely on television, and pays careful attention to his words on Twitter and in the press, should be able to tell you as much about his behavior as a mental-health professional could.One scholarly paper has suggested that accounts of a person’s behavior from laypeople who observe him might be more accurate than information from a clinical interview, and that this is especially true when considering two personality disorders in particular—what the DSM calls narcissistic personality disorder and antisocial personality disorder. These two disorders just happen to be the ones that have most commonly been ascribed to Trump by mental-health professionals over the past four years. Of these two disorders, the more commonly discussed when it comes to Trump is narcissistic personality disorder, or NPD—pathological narcissism. It’s also more important in considering Trump’s fitness for office, because it touches directly upon whether Trump has the capacity to put anyone’s interests—including the country’s and the Constitution’s—above his own.

Narcissus, the greek mythological figure, was a boy who fell so in love with his own reflection in a pool of water that, according to one version of the story, he jumped in and drowned. Psychiatrists and psychologists now use the term narcissism to describe feelings of self-importance and self-love. As Craig Malkin, a clinical psychologist who has written extensively on the subject, has explained, narcissism is a trait that, to some extent, all human beings have: “the drive to feel special, to stand out from … other[s] … to feel exceptional or unique.”

A certain amount of narcissism is healthy, and helpful—it brings with it confidence, optimism, and boldness. Someone with more than an average amount of narcissism may be called a narcissist. Many politicians, and many celebrities, could be considered narcissists; presidents seem especially likely to “rank high in extroverted narcissism,” Malkin writes, although they have varied greatly in the degree of their narcissism. But extreme narcissism can be pathological, an illness—and potentially a danger, as it was for Narcissus. “Pathological narcissism begins when people become so addicted to feeling special that, just like with any drug, they’ll do anything to get their ‘high,’ including lie, steal, cheat, betray, and even hurt those closest to them,” Malkin says.

The “fundamental life goal” of an extreme narcissist “is to promote the greatness of the self, for all to see,” the psychologist Dan P. McAdams wrote in The Atlantic. To many mental-health professionals, Donald Trump provides a perfect example of such extreme, pathological narcissism: One clinical psychologist told Vanity Fair that he considers Trump such a “classic” pathological narcissist that he is actually “archiving video clips of him to use in workshops because there’s no better example” of the characteristics of the disorder he displays. “Otherwise,” this clinician explained, “I would have had to hire actors and write vignettes. He’s like a dream come true.” Another clinical psychologist said that Trump displays “textbook narcissistic personality disorder.”

Not everyone agrees that Trump meets the diagnostic criteria for NPD. Allen Frances, a psychiatrist who helped write the disorder’s entry in the DSM, has argued that a mental “disturbance” becomes a “disorder” only when, as the DSMputs it, the affliction “causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.” The idea behind this threshold is to separate “mild forms” of problems from pathological ones, “in the absence of clear biological markers or clinically useful measurements of severity for many mental disorders.”In Frances’s view, that dividing line disqualifies Trump from having a disorder, particularly NPD. Trump “may be a world-class narcissist,” he has written, “but this doesn’t make him mentally ill, because he does not suffer from the distress and impairment required to diagnose mental disorder. Mr. Trump causes severe distress rather than experiencing it and has been richly rewarded, rather than punished, for his grandiosity, self-absorption and lack of empathy.”But from the perspective of the public at large, the debate over whether Trump meets the clinical diagnostic criteria for NPD—or whether psychiatrists can and should answer that question without directly examining him—is beside the point. The goal of a diagnosis is to help a clinician guide treatment. The question facing the public is very different: Does the president of the United States exhibit a consistent pattern of behavior that suggests he is incapable of properly discharging the duties of his office?
Even Trump’s own allies recognize the degree of his narcissism. When he launched racist attacks on four congresswomen of color, Senator Lindsey Graham explained, “That’s just the way he is. It’s more narcissism than anything else.” So, too, do skeptics of assigning a clinical diagnosis. “No one is denying,” Frances told Rolling Stone, “that he is as narcissistic an individual as one is ever likely to encounter.” The president’s exceptional narcissism is his defining characteristic—and understanding that is crucial to evaluating his fitness for office.The DSM-5 describes its conception of pathological narcissism this way: “The essential feature of narcissistic personality disorder is a pervasive pattern of grandiosity, need for admiration, and lack of empathy that begins by early adulthood and is present in a variety of contexts.” The manual sets out nine diagnostic criteria that are indicative of the disorder, but only five of the nine need be present for a diagnosis of NPD to be made. Here are the nine:

1. Has a grandiose sense of self-importance (e.g., exaggerates achievements and talents, expects to be recognized as superior without commensurate achievements).

2. Is preoccupied with fantasies of unlimited success, power, brilliance, beauty, or ideal love.

3. Believes that he or she is “special” and unique and can only be understood by, or should associate with, other special or high-status people (or institutions).

4. Requires excessive admiration.

5. Has a sense of entitlement (i.e., unreasonable expectations of especially favorable treatment or automatic compliance with his or her expectations).

6. Is interpersonally exploitative (i.e., takes advantage of others to achieve his or her own ends)

7. Lacks empathy: is unwilling to recognize or identify with the feelings or needs of others.

8. Is often envious of others or believes that others are envious of him or her.

9. Shows arrogant, haughty behaviors or attitudes.

These criteria are accompanied by explanatory notes that seem relevant here: “Vulnerability in self-esteem makes individuals with narcissistic personality disorder very sensitive to ‘injury’ from criticism or defeat.” And “criticism may haunt these individuals and may leave them feeling humiliated, degraded, hollow and empty. They may react with disdain, rage, or defiant counterattack.” The manual warns, moreover, that “interpersonal relations are typically impaired because of problems derived from entitlement, the need for admiration, and the relative disregard for the sensitivities of others.” And, the DSM-5 adds, “though overweening ambition and confidence may lead to high achievement, performance may be disrupted because of intolerance of criticism or defeat.”

The diagnostic criteria offer a useful framework for understanding the most remarkable features of Donald Trump’s personality, and of his presidency. 
(1) Exaggerates achievements and talents, expects to be recognized as superior without commensurate achievements?
(2) Preoccupied with fantasies of unlimited success, power, brilliance
(3) Believes that he or she is “special” and unique and should only associate with other special or high-status people? 
That’s Trump, to a T. As Trump himself might put it, he exaggerates accomplishments better than anyone. In July, he described himself in a tweet as “so great looking and smart, a true Stable Genius!” (Exclamation point his, of course.) That “stable genius” self-description is one that Trump has repeated over and over again—even though he has trouble with spellingdoesn’t know the difference between a hyphen and an apostrophe, doesn’t appear to understand fractions, needs basic geography lessonsspeaks at the level of a fourth grader, and engages in “serial misuse of public language” and “cannot write sentences,” and even though members of his own administration have variously considered him to be a “moron,” an “idiot,” a “dope,” “dumb as shit,” and a person with the intelligence of a “kindergartener” or a “fifth or sixth grader” or an “11-year-old child.” Trump wants everyone to know: He’s “the super genius of all time,” one of “the smartest people anywhere in the world.” Not only that, but he considers himself a hero of sorts. He avoided military service, yet claims he would have run, unarmed, into a school during a mass shooting. Speaking to a group of emergency medical workers who had lost friends and colleagues on 9/11, he claimed, falsely, to have “spent a lot of time down there with you,” while generously allowing that “I’m not considering myself a first responder.” He has spoken, perhaps jokingly, perhaps not, about awarding himself the Medal of Honor.
Trump claims to be an expert—the world’s greatest—in anything and everything. As one video mash-up shows, Trump has at various times claimed—in all seriousness—that no one knows more than he does about:
  • taxes,
  • income,
  • construction,
  • campaign finance,
  • drones,
  • technology,
  • infrastructure,
  • work visas,
  • the Islamic State,
  • “things” generally,
  • environmental-impact statements,
  • Facebook,
  • renewable energy,
  • polls,
  • courts,
  • steelworkers,
  • golf,
  • banks,
  • trade,
  • nuclear weapons,
  • tax law,
  • lawsuits,
  • currency devaluation,
  • money,
  • “the system,”
  • debt, and
  • politicians.

Trump described his admission as a transfer student into Wharton’s undergraduate program as “super genius stuff,” even though he didn’t strike the admissions officer who approved his candidacy as a “genius,” let alone a “super genius”; Trump claimed to have “heard I was first in my class” at Wharton, despite the fact that his name didn’t appear on the dean’s list there, or in the commencement program’s list of graduates receiving honors. And Trump, through an invented spokesman, even lied his way onto the Forbes 400.

(4) Requires excessive admiration? Last Thanksgiving, Trump was asked what he was most thankful for. His answer: himself, of course. A number of years ago, he made a video for Forbes in which he interviewed two of his children. The interview topic: how great they thought Donald Trump was. When his own father died, in 1999, Trump gave one of the eulogies. As Alan Marcus, a former Trump adviser, recounted the story to Timothy O’Brien, he began “more or less like this: ‘I was in my Trump Tower apartment reading about how I was having the greatest year in my career in The New York Times when the security desk called to say my brother Robert was coming upstairs’”—an introductory line that provoked “‘an audible gasp’ from mourners stunned by Trump’s self-regard.” According to a Rolling Stone article, other eulogists spoke about the deceased, but Trump “used the time to talk about his own accomplishments and to make it clear that, in his mind, his father’s best achievement was producing him, Donald.” The author of a book about the Trump family described the funeral as one that “wasn’t about Fred Trump,” but rather “was an opportunity to do some brand burnishing by Donald, for Donald. Throughout his remarks, the first-person singular pronouns—I and me and mine—far outnumbered he and his. Even at his own father’s funeral, Donald Trump couldn’t cede the limelight.”

And he still can’t. Here’s a man who holds rallies with no elections in sight, so that he can bask in his supporters’ cheers; even when elections are near, and he’s supposed to be helping other candidates, he consistently keeps the focus on himself. He loves to watch replays of himself at the rallies, and “luxuriates in the moments he believes are evidence of his brilliance.” In July, after his controversial, publicly funded, campaign-style Independence Day celebration, Trump tweeted, “Our Country is the envy of the World. Thank you, Mr. President!” In February 2017, Trump was given a private tour of the newly opened National Museum of African American History and Culture, and paused in front of an exhibit on the Dutch role in the slave trade. He turned to the museum’s director and said, “You know, they love me in the Netherlands.”(5) A sense of entitlement(9) Arrogant, haughty behaviors? Trump is the man who, on the infamous Access Hollywood tape, said, “When you’re a star, they let you do it. You can do anything you want”—including grabbing women by their genitals. He’s the man who also once said, “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters.”(8) Envious of others? Here’s a man so unable to stand the praise received by a respected war hero and statesman, Senator John McCain, that he has continued to attack McCain months after McCain’s death; his jealousy led White House staff to direct the Pentagon to keep a destroyer called the USS John S. McCain out of Trump’s line of sight during a presidential visit to an American naval base in Japan. And Trump, despite being president, still seems envious of President Barack Obama(6) Interpersonally exploitative? Just watch the Access Hollywood tape, or ask any of the hundreds of contractors and employees Trump the businessman allegedly stiffed, or speak with any of the two dozen women who have accused Trump of sexual misconduct, sexual assault, or rape. (Trump has denied all their claims.)
Finally, (7) Lacks empathy: is unwilling to recognize or identify with the feelings or needs of others? One of the most striking aspects of Trump’s personality is his utter and complete lack of empathy. By empathy, psychologists and psychiatrists mean the ability to understand or relate to what someone else is experiencing—the capacity to envision someone else’s feelings, perceptions, and thoughts.The notorious lawyer and fixer Roy Cohn, who once counseled Trump, said that “Donald pisses ice water,” and indeed, examples of Trump’s utter lack of normal human empathy abound. Trump himself has told the story of a charity ball—an “incredible ball”—he once held at Mar-a-Lago for the Red Cross. “So what happens is, this guy falls off right on his face, hits his head, and I thought he diedHis wife is screaming—she’s sitting right next to him, and she’s screaming.” By his own account, Trump’s concern wasn’t the poor man’s well-being or his wife’s. It was the bloody mess on his expensive floor. “You know, beautiful marble floor, didn’t look like it. It changed color. Became very red … I said, ‘Oh, my God, that’s disgusting,’ and I turned away. I couldn’t, you know, he was right in front of me and I turned away.” Trump describes himself as saying, after the injured man was hauled away on a makeshift stretcher, “‘Get that blood cleaned up! It’s disgusting!’ The next day, I forgot to call [the man] to say is he okay … It’s just not my thing.”
And then there was 9/11. Trump gave an extraordinary call-in interview to a metropolitan–New York television station just hours after the Twin Towers collapsed. He was asked whether one of his downtown buildings, 40 Wall Street, had suffered any damage. Trump’s immediate response was to brag about the building’s brand-new ranking among New York skyscrapers: “40 Wall Street actually was the second-tallest building in downtown Manhattan, and it was actually, before the World Trade Center, was the tallest—and then when they built the World Trade Center, it became known as the second-tallest. And now it’s the tallest.” (This wasn’t even true—a building a block away from Trump’s, 70 Pine Street, was a little taller.)That human empathy isn’t Trump’s thing has been demonstrated time and again during his presidency as well. In October 2017, he reportedly told the widow of a serviceman killed in action “something to the effect that ‘he knew what he was getting into when he signed up, but I guess it hurts anyway.’” (Trump later claimed that this account was “fabricated … Sad!” and that “I have proof,” but of course he never produced any.) On a less macabre note, on Christmas Eve last year, Trump took calls on NORAD’s Santa Tracker phone line, which children call to find out where Santa Claus is as he makes his rounds. Trump asked a 7-year-old girl from South Carolina: “Are you still a believer in Santa? Because at 7, it’s marginal, right?”
According to Woodward’s Fear, when Trump’s first chief of staff, Reince Priebus, resigned, he found out about his replacement when he saw a tweet from Trump saying that he had appointed John Kelly as the new chief of staff—moments after Priebus and Trump had spoken about waiting to announce the news. Kelly was appalled, and that night apologetically told Priebus, “I’d never do this to you. I’d never been offered this job until the tweet came out. I would have told you.” His predecessor, though, wasn’t surprised. “It made no sense, Priebus realized, unless you understood … ‘The president has zero psychological ability to recognize empathy or pity in any way.’”Priebus apparently isn’t the only White House staffer to have learned this; in February 2018, when Trump met with survivors of the Parkland, Florida, school shooting and their loved ones, his communications aide actually gave him a note card that made clear that “the president needed to be reminded to show compassion and understanding to traumatized survivors,” as The New York Times put it. The empathy cheat sheet contained a reminder to say such things as “I hear you.” One aide to President Obama told the Times that had she and her colleagues given their boss such a reminder card, “he would have looked at us like we were crazy people.”Most recently, in July of this year, in a stunning scene captured on video, Trump met in the Oval Office with the human-rights activist Nadia Murad, a Yazidi Iraqi who had been captured, raped, and tortured by the Islamic State, and had won the Nobel Peace Prize in 2018 for speaking out about the plight of the Yazidis and other victims of genocide and religious persecution. Her voice breaking, she implored the president of the United States to help her people return safely to Iraq. Trump could barely look her in the eye. She told him that ISIS had murdered her mother and six brothers. Trump, apparently not paying much attention, asked, “Where are they now?” “They killed them,” she said once again. “They are in the mass grave in Sinjar, and I’m still fighting just to live in safety.” Trump, who has publicly said that he deserves the Nobel Peace Prize, seemed interested in the conversation only at the end, when he asked Murad about why she won the prize.
Another equally unforgettable video documents Trump visiting Puerto Rico shortly after Hurricane Maria, tossing rolls of paper towels into a crowd of victims. He later responded vindictively to charges that his administration hadn’t done enough to help the island, prompting the mayor of San Juan to observe that Trump had “augmented” Puerto Rico’s “devastating human crisis … because he made it about himself, not about saving our lives,” and because “when expected to show empathy he showed disdain and lack of respect.”In October 2018, a gunman burst into Shabbat morning services at a Jewish synagogue in Pittsburgh and sprayed worshippers with semiautomatic-rifle and pistol fire. Eleven people died. Three days later, the president and first lady visited the community, and the day after that, the first thing Trump tweeted about the visit was this: “Melania and I were treated very nicely yesterday in Pittsburgh. The Office of the President was shown great respect on a very sad & solemn day. We were treated so warmly. Small protest was not seen by us, staged far away. The Fake News stories were just the opposite—Disgraceful!” Similarly, after gunmen killed dozens in the span of a single August weekend in Dayton, Ohio, and El Paso, Texas, Trump went on a one-day sympathy tour that was marked by attacks on his hosts and on political enemies, and an obsessive focus on himself.

Yet pathological narcissism is not the only personality disorder that Trump’s behavior clearly indicates. A second disorder also frequently ascribed to Trump by professionals is sociopathy—what the DSM-5calls antisocial personality disorder. As described by Lance Dodes, a former assistant clinical professor of psychiatry at Harvard Medical School, “sociopathy is among the most severe mental disturbances.” Central to sociopathy is a complete lack of empathy—along with “an absence of guilt.” Sociopaths engage in “intentional manipulation, and controlling or even sadistically harming others for personal power or gratification. People with sociopathic traits have a flaw in the basic nature of human beings … They are lacking an essential part of being human.” For its part, the DSM-5 states that the “essential feature of antisocial personality disorder is a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood.”

The question of whether Trump can serve as a national fiduciary turns more on his narcissistic tendencies than his sociopathic ones, but Trump’s sociopathic characteristics sufficiently intertwine with his narcissistic ones that they deserve mention here. These include, to quote the DSM-5, “deceitfulness, as indicated by repeated lying, use of aliases, or conning others.” Trump’s deceitfulness—his lying—has become the stuff of legend; journalists track his “false and misleading claims” as president by the thousands upon thousands. Aliases? For years, Trump would call journalists while posing as imaginary PR men, “John Barron” and “John Miller,” so that he could plant false stories about being wealthy, brilliant, and sexually accomplished. Trump was, and remains, a con artist: Think of Trump University, which even Trump’s own employees described as a scam (and which sparked a lawsuit that resulted in a $25 million settlement, although with no admission of wrongdoing). There’s ACN, an alleged Ponzi scheme Trump promoted, and from which he made millions (he, his company, and his family deny the allegations of fraud); and the border wall that hasn’t been built and that Mexico’s never going to pay for. Trump is a pathological liar if ever there was one.
Other criteria for antisocial personality disorder include
  • “failure to conform to social norms with respect to lawful behaviors, as indicated by repeatedly performing acts that are grounds for arrest”;
  • impulsivity or failure to plan ahead”; and
  • lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another.” Check, check, and check:

As for social norms and lawful behaviors, there are all the accusations of sexual misconduct. Also relevant is what the Mueller report says about Trump’s efforts to derail the Justice Department’s investigation into Russian interference in the last presidential election. And given what federal prosecutors in New York said about his role in directing hush money to be paid to the porn star Stormy Daniels, a strong case can be made that Trump has committed multiple acts of obstruction of justice and criminal violations of campaign-finance laws. Were he not president, and were it not for two Justice Department opinions holding that a sitting president cannot be indicted, he might well be facing criminal charges now.

As for impulsivity, that essentially describes what gets him into trouble most: It was his “impulsiveness—actually, total recklessness”—that came close to destroying him in the 1980s. In “response to his surging celebrity,” Trump, “acquisitive to the point of recklessness,” engaged in “a series of manic, ill-advised ventures” that “nearly did him in,” Politico reported. His impulsiveness has buffeted his presidency as well: Think of his first ordering, then calling off, the bombing of Iran in June, and his aborted meeting with the Taliban at Camp David just last month. And remember the racist tweets he sent in mid-July in which he told four nonwhite representatives—three of whom were born in the United States—to “go back” to the “countries” they “originally came from.” Those tweets were apparently triggered by something he saw on TV.

Or consider his impetuous, unvetted personnel decisions, such as his failed selection of Rear Admiral Ronny Jackson, the former White House physician, as Veterans Affairs secretary, and his choice of Representative John Ratcliffe as director of national intelligence. It was just so on The Apprentice, where editors and producers found that “Trump was frequently unprepared” for tapings, and frequently fired strong contestants “on a whim,” which required them “to ‘reverse engineer’ the episode, scouring hundreds of hours of footage … in an attempt to assemble an artificial version of history in which Trump’s shoot-from-the-hip decision made sense.” One editor remarked that he found “it strangely validating that they’re doing the same thing in the White House.” Trump sees none of this as a problem; to the contrary, he prides himself on following his instincts, once telling an interviewer: “I have a gut, and my gut tells me more sometimes than anybody’s brain can ever tell me.”

And lack of remorse? That’s a hallmark of sociopathy, and goes hand in hand with a lack of human conscience. In a narcissistic sociopath, it’s intertwined with a lack of empathy. Trump hardly ever shows remorse, or apologizes, for anything. The one exception: With his presidential candidacy on the line in early October 2016, Trump expressed regret for the Access Hollywood video. But within weeks, almost as soon as the campaign was over, Trump began claiming, to multiple people, that the video may have been doctored—a preposterous lie, especially since he had acknowledged that the voice was his, others had confirmed this as well, and there was no evidence of tampering. “We don’t think that was my voice,” he said to a senator. The “we,” no doubt, was a lie as well.

Again, as with his narcissism, all this evidence of Trump’s sociopathy only begins to tell the tale. The bottom line is that this is a man who, over and over and over again, has indifferently mused about the possibility of killing 10 million or so people in Afghanistan to end the war there, while allowing that “I’m not looking to kill 10 million people”—as though this were a realistic but merely less preferred option than, say, raising import tariffs on chewing gum. As a 1997 profile of Trump in The New Yorker put it, Trump has “an existence unmolested by the rumbling of a soul.”

In a way, Trump’s sociopathic tendencies are simply an extension of his extreme narcissism. Take the pathological lying. Extreme narcissists aren’t necessarily pathological liars, but they can be, and when they are, the lying supports the narcissism. As Lance Dodes has put it, “People like Donald Trump who have severe narcissistic disturbances can’t tolerate being criticized, so the more they are challenged in this essential way, the more out of control they become.” In particular, “They change reality to suit themselves in their own mind.” Although Trump “lies because of his sociopathic tendencies,” telling falsehoods to fool others, Dodes argues, he also lies to himself, to protect himself from narcissistic injury. And so Donald Trump has lied about

  1.  his net worth,
  2. the size of the crowd at his inauguration, and
  3. supposed voter fraud in the 2016 election.

The latter kind of lying, Dodes says, “is in a way more serious,” because it can indicate “a loose grip on reality”—and it may well tell us where Trump is headed in the face of impeachment hearings. Lying to prevent narcissistic injury can metastasize to a more significant loss of touch with reality. As Craig Malkin puts it, when pathological narcissists “can’t let go of their need to be admired or recognized, they have to bend or invent a reality in which they remain special,” and they “can lose touch with reality in subtle ways that become extremely dangerous over time.” They can become “dangerously psychotic,” and “it’s just not always obvious until it’s too late.”

Experts haven’t suggested that Trump is psychotic, but many have contended that his narcissism and sociopathy are so inordinate that he fits the bill for “malignant narcissism.” Malignant narcissism isn’t recognized as an official diagnosis; it’s a descriptive term coined by the psychoanalyst Erich Fromm, and expanded upon by another psychoanalyst, Otto Kernberg, to refer to an extreme mix of narcissism and sociopathy, with a degree of paranoia and sadism mixed in. One psychoanalyst explains that “the malignant narcissist is pathologically grandiose, lacking in conscience and behavioural regulation with characteristic demonstrations of joyful cruelty and sadism.” In the view of some in the mental-health community, such as John Gartner, Trump “exhibits all four” components of malignant narcissism: “narcissism, paranoia, antisocial personality and sadism.”

Mental-health professionals have raised a variety of other concerns about Trump’s mental state; the last worth specifically mentioning here is the possibility that, apart from any personality disorder, he may be suffering cognitive decline. This is a serious matter: Trump seems to be continually slurring words, and recently misread teleprompters to say that the Continental Army secured airports during the American Revolutionary War, and to say that the shooting in Dayton had occurred in Toledo. His overall level of articulateness today doesn’t come close to what he exhibits in decades-old television clips. But that could be caused by ordinary age-related decline, stress, or other factors; to know whether something else is going on, according to experts, would require a full neuropsychological work-up, of the kind that Trump hasn’t yet had and, one supposes, isn’t about to agree to.

But even that doesn’t exhaust all the mental-health issues possibly indicated by Trump’s behavior. His “mental state,” according to Justin A. Frank, a former clinical professor of psychiatry and physician who wrote a book about Trump’s psychology, “include[s] so many psychic afflictions” that a “working knowledge of psychiatric disorders is essential to understanding Trump.” Indeed, as Gartner puts it: “There are a lot of things wrong with him—and, together, they are a scary witch’s brew.”

This is a lot to digest. It would take entire books to catalog all of Trump’s behavioral abnormalities and try to explain them—some of which have already been written. But when you line up what the Framers expected of a president with all that we know about Donald Trump, his unfitness becomes obvious. The question is whether he can possibly act as a public fiduciary for the nation’s highest public trust. To borrow from the Harvard Law Review article, can he follow the “proscriptions against profit, bad faith, and self-dealing,” manifest “a strong concern about avoiding ultra vires action” (that is, action exceeding the president’s legal authority), and maintain “a duty of diligence and carefulness”? Given that Trump displays the extreme behavioral characteristics of a pathological narcissist, a sociopath, or a malignant narcissist—take your pick—it’s clear that he can’t.

To act as a fiduciary requires you to put someone else’s interests above your own, and Trump’s personality makes it impossible for him to do that. No president before him, at least in recent memory, has ever displayed such obsessive self-regard. For Trump, Trump always comes first. He places his interests over everyone else’s—including those of the nation whose laws he swore to faithfully execute. That’s not consistent with the duties of the president, whether considered from the standpoint of constitutional law or psychology.

Indeed, Trump’s view of his presidential powers can only be described as profoundly narcissistic, and his narcissism has compelled him to disregard the Framers’ vision of his constitutional duties in every respect. Bad faith? Trump has repeatedly used executive powers, threatened to use executive powers, or expressed the view that executive powers should be used to advance his personal interests and punish his political opponents. Thus, for example, he has

And now, in just the past two weeks, we’ve seen the pièce de résistance of bad faith, the one that’s brought Trump to the verge of impeachment: Trump’s efforts to use his presidential authority to strong-arm a foreign nation, Ukraine, into digging up or concocting evidence in support of a preposterous conspiracy theory about one of his principal challengers for the presidency, former Vice President Joe Biden. As one political historian has put it, Trump’s use of his Article II authority to pursue vendettas is “both a sign of deep insecurity … and also just a litany of abuse of power,” and something no president has done “as consistently or as viciously as Trump has.”

ProfitSelf-dealing? Look at the way Trump is using the presidency to advertise his real-estate holdings—most notably and recently, his apparent determination to hold the next G7 summit at the Trump Doral resort in Florida. Ultra vires? Trump has made the outrageous claim that the Constitution gives him “the right to do whatever I want as president.” Consistent with that view, he has repeatedlysuggested that, by executive order, he can overturn the Fourteenth Amendment’s guarantee of birthright citizenship—an utterly lawless assertion. His core constitutional obligations flow from Article II’s command that he faithfully execute the laws, yet he has told subordinates not to worry about violating the laws. According to one former senior administration official quoted in The New York Times, Trump’s “constant instinct all the time was: Just do it, and if we get sued, we get sued … Almost as if the first step is a lawsuit. I guess he thinks that because that’s how business worked for him in the private sector. But federal law is different, and there really isn’t a settling step when you break federal law.” Federal law is also different, one might add, because he’s in charge of upholding it.

Facing the approach of the 2020 election with not a single new mile of his border wall having been built, Trump, as reported in The Washington Post, has urged his aides to violate all manner of laws to expedite construction—environmental laws, contracting laws, constitutional limitations on the taking of private property—and “has told worried subordinates that he will pardon them of any potential wrongdoing” they commit along the way.

A duty of diligence and carefulness? Trump is purely impulsive, and incapable of planning or serious forethought, and his compulsion for lying has enervated any capacity for thoughtful analysis he may have ever had. He apparently won’t read anything; he himself has said, in regard to briefings, that he prefers to read “as little as possible”—despite occupying what David A. Graham calls “one of the most demanding jobs in the world” precisely because its “holder is expected to consume, digest, and absorb prodigious amounts of information via reading.”

And then there’s the question of honesty. Fiduciaries must be honest. The Framers understood, based upon the law of public officeholding in their time, that “faithful execution” of the laws requires “the absence of bad faith through honesty.” In the private realm, fiduciaries owe a duty of candor, of truth-telling; the standard of behavior was once memorably described by the renowned jurist Benjamin Cardozo as “not honesty alone, but the punctilio of an honor the most sensitive.” Today, in my own practice area of corporate litigation, corporate officers and directors, as fiduciaries, owe duties that include a duty to disclose material information truthfully and completely. Trump, whose lawyers wouldn’t dare allow him to speak to the special counsel lest he make a prosecutable false statement, couldn’t pass this standard to save his life.

Trump’s incapacity affects all manner of subjects addressed by the presidency, but can be seen most acutely in foreign affairs and national security. Presidential narcissism and personal ego have frequently displaced the national interest. Today, the most obvious—and stunning—example is his conduct toward Ukraine: While trying to pressure the Ukrainian president to restart an investigation against Biden, Trump ordered the withholding of vital military aid to that country, thus weakening its ability to withstand Russian aggression and undermining the interests of the United States. But the list goes on: Last summer, in a narcissistic effort at self-aggrandizement, Trump told the Pakistani prime minister about a conversation he had with the Indian prime minister—leading India to deny, indignantly, that any such conversation had ever taken place. Trump reportedly even lied about trade talks with China—announcing that phone calls had occurred that never occurred and that the Chinese denied took placein an apparent attempt to pump up the stock market and take credit for it.

Trump’s penchant for vendettas also doesn’t stop at the water’s edge—American interests be damned. When confidential cables sent by the United Kingdom’s ambassador to his government were leaked, and were revealed to contain uncomplimentary (but obvious) observations about Trump’s ineptitude and emotional insecurity, and the dysfunction of his administration, Trump went on an extended Twitter tirade against the ambassador, calling him “wacky” and “a very stupid guy,” “a pompous fool,” and ultimately declared: “We will no longer deal with him.” When reports surfaced that Trump was interested in having the United States purchase Greenland from Denmark, and the Danish prime minister understandably described talk about such a purchase as “an absurd discussion” in light of Greenland’s position on the matter, Trump canceled a visit to Denmark, and then attacked the prime minister, calling her comments “nasty”; for good measure, he also attacked some of America’s NATO allies.

At the same time, Trump happily succumbs to flattery from America’s enemies; he received “beautiful … great letters” from North Korea’s dictator, Kim Jong Un, and therefore “fell in love” with him, and rewards him with kind words and meetings even as North Korea continues to develop new nuclear weapons and delivery systems. Of Russia’s president, Vladimir Putin, Trump once said on television: “If he says great things about me, I’m going to say great things about him.”

Putin, of course, did more than say great things about Trump, which brings up what was, until the Ukraine scandal surfaced, the most significant way in which Trump’s extraordinary narcissism influenced his presidency—the Russia investigation. Trump made that investigation about himself, and in the course of doing so, committed what appear to be unmistakably criminal acts. At the outset, the Mueller investigation wasn’t about what Donald Trump had done during the 2016 U.S. presidential campaign. It was primarily an investigation about what the Russians had done to interfere with that election and to help the Trump campaign. At its core, it was a counterintelligence investigation—an effort to protect the country, to defend our democracy. An effort to find out exactly what a hostile foreign power had done to attack the United States, so that our nation could fight back, and so that it could take measures to ensure that such an attack never happened again.

But Trump didn’t see it that way. The Mueller report repeatedly describes Trump’s self-obsession, and his disregard for the national interest. Trump viewed “the intelligence community assessment of Russian interference as a threat to the legitimacy of his electoral victory.” He is said to have “viewed the Russia investigation as an attack on the legitimacy of his win.” He thought it would “tak[e] away from what he had accomplished.” The Washington Post has now reported, moreover, that in the Oval Office in May 2017, Trump told the Russian foreign minister and ambassador that he was unconcerned with Russia’s interference in the 2016 election.

And so, contrary to his obligation to act in the nation’s interests rather than his own, and contrary to the criminal code, he repeatedly tried to obstruct the investigation—and therefore, ironically, put himself in the crosshairs of the investigation. Thanks to Trump’s narcissism, the special counsel was forced to devote an entire volume of his report—some 182 pages of single-spaced text—to Trump’s repeated and persistent efforts to derail the investigation. And persistent, Trump was. He tried to get Attorney General Jeff Sessions, who had recused himself from the investigation, to violate ethics rules and unrecuse himself, so that he could get rid of the special counsel and limit the investigation to future election interference only. Trump tried to get his White House counsel to have the acting attorney general remove Mueller on a ridiculous pretext, prompting the counsel to threaten to resign. Trump tried to encourage witnesses to refuse to cooperate with the very government that Trump himself heads. As I’ve argued elsewhere, in his efforts to derail the Mueller investigation, Trump “did much more than this, but all of this is more than enough: He committed the crime of obstructing justice—multiple times.” Trump even obstructed justice about obstructing justice when he tried to get the White House counsel to write a false account of Trump’s efforts to remove Mueller.

All in all, Trump sought to impede and end a significant counterintelligence and criminal investigation—one of crucial importance to the nation—and did so for his own personal reasons. He did precisely the opposite of what his duties require. Indeed, he has shown utter contempt for his duties to the nation. How else could one describe the attitude Trump expressed when, sitting next to Vladimir Putin in late June, he was asked whether he would tell Putin not to interfere in the 2020 U.S. presidential election? Trump smirked, wagged his finger playfully at Putin, and said, “Don’t meddle in the election.” Putin smirked too. The Russian president was in on the joke—the punch line being how Trump treats America’s interests versus his own.

What constitutional mechanisms exist for dealing with a president who cannot or does not comply with his duties, and how should they take the president’s mental and behavioral characteristics into account? One mechanism discussed with great frequency during the past three years, including within the Trump administration, is Section 4 of the Twenty-Fifth Amendment. That provision allows the vice president to become “Acting President” when the president is “unable to discharge the powers and duties of his office.” But it doesn’t define what such an inability entails; essentially, it lets the vice president and the Cabinet, the president himself, and ultimately two-thirds of both houses of Congress decide.

Certainly it would cover a coma. Had the amendment been in effect in 1919 through 1921, it presumably could have been used to deal with President Woodrow Wilson. A severe stroke had rendered Wilson paralyzed on the left side, but he could still speak, and he could still sign documents with his right hand. Nevertheless, although Wilson had “relatively well preserved intellectual function,” the stroke rendered him “subject to ‘disorders of emotion, impaired impulse control, and defective judgment.’”

Sound judgment, of course, is what a president’s job is all about. And as Jeffrey Rosen has explained, “nothing in the text or original understanding of the amendment” would prevent the vice president, the Cabinet, or Congress from deciding that Trump has disorders of emotion, impaired impulse control, defective judgment, or other behavioral or psychological issues that keep him from carrying out his constitutional duties the way they were meant to be carried out.

The problem is one of mechanics. Section 4, quite understandably, was designed to be extremely difficult to implement. The vice president and a majority of the Cabinet can determine that the president isn’t able to carry out his duties; if so, the vice president immediately becomes acting president. But if the president doesn’t agree—and you know what Trump’s view will be, no matter what—then a constitutional game of ping-pong starts: The president can certify that he is capable, and he can reassume his authority after a four-day waiting period, unless the vice president and the Cabinet, within that period, recertify that the president can’t function. (As a new book on Section 4 explains, this waiting period exists in part because “a deranged President could do a lot of damage if he could retake power immediately,” and, in particular, he “would also be able to fire the Cabinet, which would prevent it from contesting his declaration of ability.”) If that happens, the vice president continues as acting president, and the whole matter gets kicked to Congress, which must assemble within 48 hours and decide within 21 days: If two-thirds of both houses agree that the president can’t function, then the vice president continues as acting president; if not, the president gets his authority back.

No matter how psychologically incapable of meeting his constitutional obligations Trump may be, that route is virtually certain not to work in this case. Would a vice president and department heads who have shamelessly slaked Trump’s narcissistic thirst at Cabinet meetings by praising his supposed greatness, and who of course owe their jobs to Trump, dare incur his wrath by sparking a constitutional crisis on the basis of what they must surely know about his unprecedented faults? Doubtful, to say the least. They would know full well that, if their decision weren’t sustained by Congress, the first thing that Trump would do after reassuming power would be to fire every department head who sought to have him sidelined. (He can’t fire Vice President Mike Pence, of course.) Which brings up the ultimate question upon which successful invocation of Section 4 would turn: whether two-thirds of both houses of Congress would vote to remove Trump. That’s harder than impeachment, which requires only a simple majority of the House in order to bring charges of impeachment to a trial in the Senate (which in turn can convict on a two-thirds vote).

And so it turns out that impeachment is a more practical mechanism for addressing the fact that Trump’s narcissism and sociopathy render him unable to comply with the obligations of his office. It’s also an appropriate mechanism, because the constitutional magic words (other than Treason and Bribery) that form the basis of an impeachment charge—high Crimes and Misdemeanors, found in Article II, Section 4 of the Constitution—mean something other than, and more than, offenses in the criminal-statute books. High Crimes and Misdemeanors is a legal term of art, one that historically referred to breaches of duties—fiduciary duties—by public officeholders. In other words, the question of what constitutes an impeachable offense for a president coincides precisely with whether the president can execute his office in the faithful manner that the Constitution requires.

The phrase high Crimes and Misdemeanors was dropped into the draft Constitution on September 8, 1787, during the waning days of the Constitutional Convention. The discussion before the Convention’s Committee of Eleven was extremely brief. The extant version of what became Article II, Section 4 provided for impeachment merely for treason and bribery. George Mason objected, and proposed adding “maladministration.” Elbridge Gerry seconded Mason’s proposal, but James Madison objected that it was too vague. Gouverneur Morris chimed in, arguing that having a presidential election “every four years will prevent maladministration.” Mason moved to add, according to Madison’s notes, “other high crimes & misdemeanors (against the State).” The motion passed, eight to three. And so, as a result of that brief exchange, Article II of the Constitution of the United States provides that “the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

As Yoni Appelbaum has observed in this magazine, “constitutional lawyers have been arguing about what counts as a ‘high crime’ or ‘misdemeanor’ ever since.” One of the most compelling arguments about the meaning of those words is that the Framers, in Article II’s command that a president faithfully execute his office, imposed upon him fiduciary obligations. As the constitutional historian Robert Natelson explained in the Federalist Society Review, the “founding generation [understood] ‘high … Misdemeanors’ to mean ‘breach of fiduciary duty.’” Eighteenth-century lawyers instead used terms such as breach of trust—which describes the same thing. “Parliamentary articles of impeachment explicitly and repetitively described the accused conduct as a breach of trust,” Natelson argues, and 18th-century British legal commentators explained how impeachment for “high Crimes and Misdemeanors” was warranted for all sorts of noncriminal violations that were, in essence, fiduciary breaches.

Just as the Framers viewed the presidency as fiduciary, they understood the offenses that might disqualify the incumbent as breaches of that fiduciary duty. And that may well be why the discussion of Morris’s suggestion was so brief—the drafters knew what the words historically meant, because, as a House Judiciary Committee report noted in 1974, “at the time of the Constitutional Convention the phrase ‘high Crimes and Misdemeanors’ had been in use for over 400 years in impeachment proceedings in Parliament.” Certainly Alexander Hamilton knew by the time he penned “Federalist No. 65,” in which he explained that impeachment was for “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

What constitutes such an abuse or violation of trust is up to Congress to decide: First the House decides to bring impeachment charges, and then the Senate decides whether to convict on those charges. The process of impeachment by the House and removal by trial in the Senate is thus, in some ways, akin to indictment by a grand jury and trial by a petit jury. In other ways, it is quite different. As Laurence Tribe and Joshua Matz explain in their recent book on impeachment, “the Constitution explicitly states that Congress may not end a presidency unless the president has committed an impeachable offense. But nowhere does the Constitution state or otherwise imply that Congress must remove a president whenever that standard is met … In other words, it allows Congress to exercise judgment.” As Tribe and Matz argue, that judgment presents a “heavy burden,” and demands that Congress be “context-sensitive,” and achieve “an understanding of all relevant facts.” A president might breach his trust to the nation once in some small, inconsequential way and never repeat the misbehavior, and Congress could reasonably decide that the game is not worth the candle.

So the congressional judgment in the impeachment process necessarily includes the number and seriousness of offenses, and even extends well beyond those calculations. Congress must also, in particular, weigh the chances of recidivism; that possibility is precisely why the Constitution provides for removal as the principal sanction upon conviction on impeachment charges. As Charles Black Jr. explained in his classic 1974 book on impeachment, “We remove him principally because we fear he will do it again.” Or as George Mason put it during the Constitutional Convention, “Shall the man who has practised corruption … be suffered to escape punishment, by repeating his guilt?

In short, now that the House of Representatives has embarked on an impeachment inquiry, one of the most important judgments it must make is whether any identified breaches of duty are likely to be repeated. And if a Senate trial comes to pass, that issue would become central as well to the decision to remove the president from office. That’s when Trump’s behavioral and psychological characteristics should—must—come into play. From the evidence, it appears that he simply can’t stop himself from putting his own interests above the nation’s. Any serious impeachment proceedings should consider not only the evidence and the substance of all impeachable offenses, but also the psychological factors that may be relevant to the motivations underlying those offenses. Congress should make extensive use of experts—psychologists and psychiatrists.

  • Is Trump so narcissistic that he can’t help but use his office for his own personal ends?
  • Is he so sociopathic that he can’t be trusted to follow, let alone faithfully execute, the law?

Congress should consider all this because that’s what the question of impeachment demands. But there’s another reason as well. The people have a right to know, and a need to see. Many people have watched all of Trump’s behavior, and they’ve drawn the obvious conclusion. They know something’s wrong, just as football fans knew that the downed quarterback had shattered his leg. Others have changed the channel, or looked away, or chosen to deny what they’ve seen. But if Congress does its job and presents the evidence, those who are in denial won’t be able to ignore the problem any longer. Not only because of the evidence itself, but because Donald Trump will respond in pathological ways—and in doing so, he’ll prove the points against him in ways almost no one will be able to ignore.

It’s Not Nice to Lie to the Supreme Court

The decision in the census case suggests President Trump can no longer take the court for granted.

A cynic might say that with his two major decisions on the last day of the Supreme Court term a week ago, Chief Justice John Roberts saved both the Republican Party and the court — first by shutting the federal courts’ door to claims of partisan gerrymandering, a practice in which both political parties indulge but that Republicans have perfected to a high art, and then by refusing to swallow the Trump administration’s dishonest rationale for adding a citizenship question to the 2020 census.

President Trump, having placed two justices on the Supreme Court, had taken to treating the court as a wholly owned subsidiary, and not without some justification. It was the court, after all, in an opinion by Chief Justice Roberts, joined by the other four Republican-appointed justices, that saved the president’s Muslim travel ban a year ago. But the chief justice’s opinion in the census case last week blew a hole in what appeared to be a protective firewall that the president can no longer take for granted.

I’m not joining the cynics, especially now that the citizenship question is dead — or so it seemed on Tuesday, based on the Justice Department’s assertion to the federal district judge handling a companion case in Maryland that the census forms were being printed without the citizenship question. On Wednesday, a furious President Trump ordered the Justice Department to reverse course; what followed was a telephone colloquy between that federal judge, George Hazel, and the lawyers for which the word bizarre is a breathtaking understatement. “I can’t possibly predict at this juncture what exactly is going to happen,” Joshua Gardner, a Justice Department lawyer, told the judge, who gave the administration until Friday afternoon to get its story straight.

It would take a heart of stone not to feel sorry for the administration’s lawyers, faced with defending the indefensible. As they recognized 24 hours earlier, the chief justice’s opinion in fact left no wiggle room. Once the behavior of Wilbur Ross, the secretary of commerce, was called out by the Supreme Court of the United States, the president was trapped — and now his lawyers are caught in his net. Maybe they can find a way around the chief justice’s decision, but I don’t think so.

Here’s why: Once the court rejected the administration’s stated rationale as phony — or “contrived,” as Chief Justice Roberts put it more politely in agreeing with Federal District Judge Jesse Furman that improved enforcement of the Voting Rights Act was not Secretary Ross’s real motive — the administration might have tried to come up with some other politically palatable explanation. That would almost certainly have failed, because courts generally will not accept what they call “post hoc rationalizations,” explanations cooked up under pressure and after the fact. But even if such a ploy had succeeded, its very success would have proved Secretary Ross to have been a liar all along.

The citizenship question is now history, fortunately, but this whole episode is too fascinating, too important for the country and the court, to put behind us just yet. So in this column, I want to probe the census decision itself, both for what it tells us about the court and for what it might suggest about the next test of the relationship between the president and the court that he has so recently regarded as his very own. That is the question of the validity of the president’s rescission of the program known as Deferred Action for Childhood Arrivals, or DACA, the Obama-era policy that now protects the “dreamers,” some 700,000 young undocumented people brought to this country as children, from being thrown out of the only country they have ever known. The court will hear that case in its next term, and there are some striking parallels with the census case that just might leave the Trump administration empty-handed again.

But first, the census case. I’ve been obsessed with imagining whatever dark night of the soul preceded the chief justice’s last-minute decision to shift course and reject the administration’s position.

I readily admit that I have no sources for the claim I just made. I have no proof that Chief Justice Roberts initially voted with the administration and talked himself out of that position sometime during the two months that elapsed between the April argument and the June decision. But I’ve been reading Supreme Court decisions for a very long time, and the opinions that provide the holding — the chief justice’s plus the partially concurring opinion of Justice Stephen Breyer for the court’s four liberals — have all the hallmarks of judicial tectonic plates that shifted late in the day to produce an outcome that none of the players anticipated at the start.

To begin with the chief justice’s opinion: The first 22 of its 28 pages are an argument for why the decision by Secretary Ross to add the citizenship question to the census was a reasonable one that fell squarely within his authority. Noting that Mr. Ross rejected the advice of Census Bureau experts and decided to proceed despite the risk of depressing the response rate, Chief Justice Roberts writes, “That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”

Then suddenly, on page 23, the opinion’s tone changes as the chief justice reviews the finding by Federal District Judge Furman that Secretary Ross’s explanation for why he wanted the citizenship question in the first place was a pretext. The official story was that it would help the Department of Justice — which was said to have requested the addition of the question — to better enforce the Voting Rights Act on behalf of members of minority groups. In fact, as Judge Furman determined from the evidence, it was Secretary Ross who solicited the Justice Department’s request, and whatever the secretary’s motivation, the reason he gave wasn’t the real one.

“We are presented,” Chief Justice Roberts observes dryly, “with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision making process.” He continues:

“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

Justice Breyer’s opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, is almost as long as the chief justice’s. Nearly all of it reads like a dissent, arguing that Secretary Ross’s rejection of his own experts’ advice made the addition of the citizenship question unreasonable as a matter of law, “arbitrary and capricious” in the language of the Administrative Procedure Act. Only in Justice Breyer’s concluding paragraphs is there anything that reads like a concurrence: “I agree that the pretextual nature of the secretary’s decision provides a sufficient basis to affirm the District Court’s decision to send the matter back to the agency.” It’s hard to read these few paragraphs as anything other than a last-minute addition to a carefully crafted dissenting opinion, one that had rather suddenly become superfluous.

There were two other opinions filed in the case, one by Justice Clarence Thomas that was joined by Justices Neil Gorsuch and Brett Kavanaugh, and another by Justice Samuel Alito. Both disagreed vigorously with the chief justice’s bottom line. All four opinions scrupulously avoided any mention of what everybody knew: that documents brought to light in the weeks following the April 23 argument showed that the citizenship question was part of a plan not to help minority groups vote, but the opposite. The plan was to create and entrench Republican majorities in state legislatures by providing data for use if the Supreme Court gives the green light to counting only eligible voters in legislative redistricting. Conservative groups are poised to send such a case to the Supreme Court in the near future, part of a strategy to keep rapidly diversifying red states like Texas from turning blue.

There is no doubt that the justices were aware of this late-breaking development; during the days leading up to the decision, one of the plaintiff groups challenging the citizenship question had filed a brief with the court detailing the findings from the computer files of a recently deceased Republican redistricting specialist. If I’m right about the chief justice’s late-in-the-day change of heart, did these revelations play a part, even a subconscious one? That’s more speculation than even I am willing to engage in. Suffice it to say that it’s hard to imagine the administration’s litigating position undermined in a more devastating fashion.

It’s that observation that brings me to the DACA case. The court will actually hear three DACA cases, consolidated for a single argument and decision. All three are appeals by the administration of rulings that have barred it from carrying out its decision, announced in September 2017, to “unwind” the program. At issue are two Federal District Court opinions and a decision by the United States Court of Appeals for the Ninth Circuit that upheld a ruling by a federal district judge in San Francisco, William Alsup. The opinions differ slightly, but all found that the administration’s termination of DACA for the reason the administration has provided would violate the Administrative Procedure Act.

Here’s where the administration is caught. Its stated reason, as expressed by the acting secretary of homeland security on orders from the attorney general at the time, Jeff Sessions, was that DACA lacked statutory authority and was unconstitutional. At the heart of the administration’s appeal is the assertion that the federal courts lack jurisdiction to interfere with the “Executive Branch’s authority to revoke a discretionary policy of nonenforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens.”

That is a very difficult position for the administration to maintain because it presents to the courts a question not of policy but of law. The administration would have a strong case for judicial deference if it described its rejection of DACA as a matter of enforcement priorities that differ from those of the previous administration. But by claiming that “the law is making us do it,” the administration is serving up the federal judges a question at the heart of their jurisdiction: What does the law require?

As Judge John D. Bates of the Federal District Court in Washington observed in his opinion, the administration provided only a few sentences of legal analysis to back up its claim. “This scant legal reasoning was insufficient to satisfy the department’s obligation to explain its departure from its prior stated view that DACA was lawful,” Judge Bates explained.

So the question is why the administration failed to offer a policy-based explanation, one that might well have persuaded the lower courts and eased its path to the Supreme Court. One reason might have been to protect the president, who declared shortly after his inauguration that “we are not after the dreamers, we are after the criminals” and that “the dreamers should rest easy.” The reason for going after the dreamers had therefore to be based on a claim of pure law, not a change of heart.

A more cynical explanation — and here I’ll indulge in the cynicism from which I refrained at the beginning of this column — is that in claiming that revoking the policy is required by law and not preference, the administration seeks to avoid accountability for a position that, if it were to prevail, would predictably cause economic disruption and public dismay.

Many policy positions predictably affect hundreds of thousands or millions of people; had Republicans succeeded in gutting the Affordable Care Act, for example, millions of people would have been thrown back into the health care jungle. But we don’t know their names. The DACA recipients, by contrast, have names that are known, not only to the Department of Homeland Security but to their schools, their employers, their communities. One dreamer recently received a Rhodes Scholarship and will not be able to return to the United States from Oxford if the administration wins its case. Others with less exalted achievements are simply getting their degrees, holding down jobs, paying their taxes, raising some 200,000 American-born children and going about their lives in the country they regard as their own.

The dreamers will still be here next April, when the census takers come around; the Supreme Court decision will almost certainly not be issued by then. They will be counted along with the rest of us in the grand decennial enumeration that the Constitution’s framers decreed. And a year from now, we’ll know whether the court that could see through one Trump administration strategy is willing and able to do it a second time.

Donald Trump’s origin story suffers another severe blow

The myth of Donald Trump, as written by Donald Trump, took yet another blow Monday.

The Washington Post’s Michael Kranish reported that Trump’s admission to the University of Pennsylvania’s Wharton School of Finance — one of Trump’s go-to brags to play up his credentials — was hardly the feat he has claimed. In fact, Trump leaned on his older brother’s friendship with an admissions officer to get into the school. And even then, he was clearing a much lower bar than exists for acceptance to the prestigious school today.

Here are the key parts:

James Nolan was working in the University of Pennsylvania’s admissions office in 1966 when he got a phone call from one of his closest friends, Fred Trump Jr. It was a plea to help Fred’s younger brother, Donald Trump, get into Penn’s Wharton School.

“He called me and said, ‘You remember my brother Donald?’ Which I didn’t,” Nolan, 81, said in an interview with The Washington Post. “He said, ‘He’s at Fordham and he would like to transfer to Wharton. Will you interview him?’ I was happy to do that.”

Soon, Donald Trump arrived at Penn for the interview, accompanied by his father, Fred Trump Sr., who sought to “ingratiate” himself, Nolan said.

Nolan, who said he was the only admissions official to talk to Trump, was required to give Trump a rating, and he recalled, “It must have been decent enough to support his candidacy.”

At the time, Nolan said, more than half of applicants to Penn were accepted, and transfer students such as Trump had an even higher acceptance based on their college experience. A Penn official said the acceptance rate for 1966 was not available but noted that the school says on its website that the 1980 rate was “slightly greater than 40%.” Today, by comparison, the admissions rate for the incoming Penn class is 7.4 percent, the school recently announced.

Trump has said he went to “the hardest school to get into, the best school in the world,” calling it “super genius stuff.” Nolan counters that “it was not very difficult” to get into Wharton in 1966 and added of his interview with Trump: “I certainly was not struck by any sense that I’m sitting before a genius. Certainly not a super genius.”

It’s hardly a surprise that Trump’s academic record isn’t as stellar as he has made it out to be. We have already seen reporting establish that he wasn’t nearly as successful at Wharton as he has occasionally suggested or led reporters to believe.

But this new report feeds into a fast-emerging trend when it comes to President Trump’s telling of his biography. While he often plays up the singularity of his intellect and achievements, reporting shows he routinely relied on family or other connections at key junctures and has inflated the early successes that resulted.

The most direct parallel seems to be Trump’s medical deferment from the Vietnam War. After getting four educational deferments, he got a fifth thanks to a diagnosis of bone spurs. The New York Times reported last year that the children of the doctor who provided that diagnosis told them it was done as a favor to Trump’s father, Fred Trump Sr. — the successful real estate businessman who also accompanied his son to the Penn interview. (The elder Trump was the podiatrist’s landlord.)

The new report by Kranish also recalls perhaps the biggest revelation undercutting Trump’s self-published origin story: how he became wealthy in the first place. While Trump has claimed he got only a $1 million loan to start out with, the Times detailed how the younger Trump “received at least $413 million in today’s dollars from his father’s real estate empire, much of it through tax dodges in the 1990s.” The paper said these tax dodges included “instances of outright fraud.”

And when it comes to Trump’s education, he has apparently gone to great lengths to obscure the record and seems to have tapped powerful connections in the process, as The Post’s Marc Fisher detailed in March. The New York Military Academy, which Trump attended before college, moved its Trump files to a more secure location amid pressure from wealthy Trump allies. Around the same time that was revealed, former Trump attorney Michael Cohen, who flipped on Trump and pleaded guilty to several crimes, released a 2015 letter he wrote threatening Fordham University with legal action if Trump’s records were released.

The combined picture is one of a president who may not have been able to attend Penn or assemble anywhere close to such a fortune without familial connections. Without those, he also may have instead been serving in Vietnam around this same time.

That’s hardly the story of a self-made, brilliant budding real estate tycoon. It’s a story that apparently could have gone much differently if its protagonist were not born a Trump.