Former Trump Administration White House Communications Director Anthony Scaramucci and The Nation’s justice correspondent Elie Mystal talk to Zerlina Maxwell about the Trump campaign’s attempt to overturn election results and why it won’t work.
joining me now is former white house communications director for the trump administration anthony scaramucci and justice correspondent for the nation ali mastal uh the mooch let me start with you uh to to the extent that you can happy birthday take us inside oh thank you thank you so much i appreciate that um you know take us inside the trump orbit what is the president’s end game here i mean obviously he’s throwing everything at the wall but what ultimately is his goal does he actually believe any of these efforts will make a difference well i think the end game is a non-prosecutorial agreement and so that’s different from a pardon remember a pardon you have to be accused of the crime indicted of the crime and then you get pardoned he wants a non-prosecutorial agreement in new york state new york city and the federal government and so he’s going to wreak havoc on our society in an effort to do that so he’s going to act like the tasmanian devil trapped inside that non-scalable wall around the white house uh i don’t think he’s leaving that white house by the way watch he won’t go to mar-a-lago for thanksgiving he likely will not leave the white house for christmas because he’s afraid they’re not going to let him back in the white house and he knows if he has the white house he has some leverage over other people so that’s what i think is going on right now i think he wants that for his family and for himself uh and that’s why he’s stirring the power spot excuse me the pot so vigorously so we do have some breaking news nbc news can confirm that donald trump jr uh just tested positive for covid19 anthony i can’t even believe that people in trump’s orbit are still testing positive like they did not take the hint from the first person in their orbit and then start wearing masks what the heck is going on here what’s your reaction to donald trump’s junior testing positive if you if you if you poll them they think it’s a hoax and they were saying repeatedly that on november 4th no one would be talking about the covet 19 crisis or the pandemic so it’s no surprise to me that every day you’re going to read about more people i understand and i like andrew giuliani a lot and i wish him well i like don jr i don’t agree with his politics of course but i i wish these people good health it’s just it’s unfortunate that nobody would listen to the epidemiology behind this and it was ultimately the president’s undoing that they took this path uh somebody told me today that he had a bad october i’m like what he had a bad march through october he mishandled the pandemic he lied about everything and that’s why we are where we are and that’s why everybody’s getting sick and i feel like if he had handled the pandemic just at all i mean like i feel like he’s done so little that if he had just you know been like wear a mask and i’m gonna you know make sure that we have rapid testing the the election could have gone a lot differently ellie a lot of people are looking at what’s happening in michigan um also in pennsylvania where the trump campaign is fighting in the courts today georgia obviously certified uh their election results and their recount um but trump says there’s a major lawsuit on the way and so i i’m i feel like people are getting nervous um you know they hear legal experts say you know joe biden will be the president trump cannot overturn the results of this election um make me feel confident about the fact that that is true there’s nothing that donald trump can do to stop this from happening legally we are now well into the illegal phase um of his attempting to run you know it’s it’s it’s it’s a coup d’etat brought to you by four seasons landscaping i mean that’s that’s kind of where we are right now um look there there’s no there’s no legitimate argument for for trump to be doing any of this does anybody remember i just want your viewers to think does anybody actually remember the legal argument that they’re making in michigan no nobody that’s not a legal argument they’re just straight up saying we should throw out votes of black people that’s the only argument that’s not legal um uh uh a congressman um bill parcell jr today filed bar complaints ethics complaints against rudy giuliani that’s what needs to happen now because donald trump literally admitted on twitter that the entire point of his michigan lawsuit was to delay certification of the vote that is an extra legal means that is using the court to get an extra legal um outcome that is textbook unethical there is a rule it is called rule 11 that is supposed to be used to sanction lawyers who bring frivolous unethical lawsuits and it should be used against all of trump attorneys it likely won’t be because people are cowards but like that’s where we are now okay so when i when people want to feel safe and feel and feel better about where things are going make no mistake there’s no legal grounds anywhere they are one for 32 one for 31 in court and the one that they won was whether their poll walkers watchers have to be 15 feet away or six feet away that’s their win so there’s no legal argument anywhere to be found here but trump doesn’t care and so and that’s what we’re trying to so i think that leads me to my next question anthony in terms of who is advising the president obviously ellie points out that none of these arguments are legal arguments so likely donald trump who is not a lawyer you know isn’t coming up with sort of some of these theories but do you think he’s listening to anyone who is giving him advice or is this just all coming from him no this is 100 coming from him and i would tell you that the last six weeks of that campaign 100 coming from him his movements the strategy what he was preparing to do after he got him himself kovac 19 all of that is coming from him and so he’s hunkered down uh you’ve got people inside the white house that i’m still close to that have said okay we got to begin the transition process we have to release the funding we have to start the process i mean he lost by six million plus votes five states flipped but i do think uh that he did something very cunning he delayed the absentee ballot counting and so what ended up happening was if we got every single vote counted by 11 pm on election night it was a route he had five states flip on them lost by six million votes it was a total repudiation of trumpism but by switching up the mail servers taking away the post office boxes delaying the count delaying the ballots uh he’s trying to convince and he’s got 50 60 million people convinced of this uh that those ballots that came in afterwards totally legitimate totally legal were false and there’s a problem with the election so he believes that 50 or 60 million of his followers believe that but ellie knows the court system doesn’t believe that america doesn’t believe that by december 1st all of the battleground states will be certified and then my question to the gop is then what what are you going to do after that you know the the the you know the thing is is over as it could be yeah it feels to me like you know they’re accepting the wins and losses in their congressional races i say it every day like mitch mcconnell accepted the win in his race but somehow the election was fraudulent it doesn’t make sense to me ellie and with the president refusing to concede um you know there’s a question about short-term damage to the biden transition team as we try to prepare for a vaccine hopefully and the long-term damage it does to just the whole democracy um we know joe biden will become the president but what worries you about the long-term damage trump is doing to the democracy right now well this is how i understand your breaking news about don jr who i don’t know and don’t wish well um these people are the ones who are leading to additional unnecessary deaths in this country that’s the cost it’s not to me i’m pouring down i’m hunkered down and quarantined i basically have a moat around my house right it is to it is to the people um who are being led astray by this administration um and the people who cannot get the help and the services they need and the delay that there’s going to be in distributing a vaccine that we apparently are on the verge of having a proof these that’s the hurt that’s the harm it’s the harm is death and biden said it directly more people will die because of the charade that the republican party led by mitch mcconnell um sorry led by donald trump endorsed by mitch mcconnell and republicans up and down their entire ticket that’s that’s what the cost is of this anthony to that point do you think that the president cares about the death happening um and additionally do you think he will ever admit that he lost this election we saw him for the first time in public today uh in many days and you know he couldn’t he he basically stood there like i won and and walked out yeah talking about prescription drug prices as an aside uh do you think he’s ever going to you know get it through his head yeah well the short answer is no and no but just remember one thing about him when he’s doing a news surge he’s searching trump he is not searching usa and he’s definitely not searching y-o-u he could care less about y-o-u so when ellie says he doesn’t care about donald trump jr uh donald trump jr and donald trump senior don’t care about us so i i hear you and i will say this i thought i had good hair until i met you ellie i mean that thing is absolutely terrific i’ve never seen it like it so i mean i have hair envy tonight but uh but what that’s because you got a moat around the house a barber can’t get in there with like actually but but i gotta i gotta tell you though you know we gotta move past these people and i’m going to make a prediction on the peacock that once we move past these people the half-life of power of trumpism is going to decelerate very very quickly uh because you’ve got all these ambitious geopeers they’re going to be throwing the trumps into the prairie fire as quickly as they possibly can and then they’re going to have to have a reckoning in that party because you’re going to have a reconciliation with the truth and where were you when we needed you related to life and safety and principle so if they’re not careful the republican party is heading for the ash heap as well it’ll be an aging group of white people that are buying my pillows and catheters from fox news commercial interruptions there’s definitely weird commercials on fox news i just have to say that as an aside ellie and john they can’t get any real responses that’s true i remember when it was very very strange commercials at what during one of the boycotts um ellie it seems to me that the president uh to anthony’s point is not going to accept the results of this election he’s obviously doing at you know to your point extra legal things in order to muck up the works here um are there laws being broken like are there additional things he’s doing in order to make pay over this election result which we all know is one where joe biden won are there any additional laws he’s breaking i mean i i assume that the presidential records act is being shredded every night uh um um who knows uh uh what access to information we are being denied um by this holdup but again i don’t think that this is a i don’t think right now he’s breaking laws he’s still the president until january 20th at noon right at 1201 um he becomes potentially a trespasser in the white house but until noon on the 20th he’s still the president um so i don’t think that their laws being broken by his shenanigans again their their ethics and and i i say ethics not not as a dodge as a thing that used to be important as a thing that we used to expect lawyers to uphold the ethical violations of this administration that we’ve all just kind of gotten used to because it’s just every day is a violation right we’ve gotten used to them like we shouldn’t be because that that that that is the ethics are the guard real and that’s what we don’t have right now so again these this attempt by by this congress person um the attempt to hold trump lawyers accountable like jenna ellis needs to needs to fill the the sting of a rebuke right like at some point these people who help him these people who enable him have to feel like they themselves will be rebuked in some way um to warn them off of doing it like that that’s actually at least as important um as you know at some point obama joke the other day like at some point the navy seals will get into the white house and and deal with trump if he’s if he’s still there right but i need something to happen to jenna ellis i need something to happen to rudy giuliani i need them i need i need the the legal structures yeah because there are there actually are to your point about the ethics of it you know lawyer lawyers get a bad rap while i’ve never practiced i’m gonna defend lawyers like you can’t just straight up lie like you can finagle uh and and spin but you can’t just straight up live that’s actually unethical and a lot of these folks are getting up in front of microphones on tv just straight up lying about the law and the fact and it’s not because trump is the bad guy like i think that one of the best things that lawyers do is defend the indefensible like i i i am proud of lawyers who will defend terrorists and criminals and this guy right but you can’t lie you can’t stand up in court and make purposefully frivolous arguments that actually breaks the whole system down so again we need we need these people to be held accountable for their misdeeds i agree anthony scaramucci and ali mestal thank you as always for being on the show tonight
Frankly, Trump doesn’t give a damn.
It’s funny that Donald Trump doesn’t like a movie about con artists who invade an elegant house and wreak chaos.
He should empathize with parasites.
No doubt the president is a movie buff. He has been known to call advisers in the wee hours to plan movie nights at the White House for films he wants to see, like “Joker.” And, in an early sign of his affinity for tyrants, he told Playboy in 1990 that his role model was Louis B. Mayer running MGM in the ’30s.
Trump interrupted his usual rally rant Thursday night to bash the Oscars, saying: “And the winner is a movie from South Korea. What the hell was that all about? We got enough problems with South Korea with trade. On top of it, they give them the best movie of the year?”
He added: “Can we get ‘Gone With the Wind’ back, please? ‘Sunset Boulevard.’ So many great movies. The winner is from South Korea. I thought it was best foreign film, right? Best foreign movie. No. Did this ever happen before? And then you have Brad Pitt. I was never a big fan of his. He got upset. A little wise guy statement. A little wise guy. He’s a little wise guy.” (When he accepted his Oscar, Pitt complained that the Senate did not let John Bolton testify.)
Our president is nostalgic for a movie romanticizing slavery and a movie about an aging diva swanning maniacally around a mansion, living in a vanished past. (I am big. It’s the party that got small.)
Trump’s xenophobic movie criticism, combined with his mocking pronunciation of the name “Buttigieg,” harked back to the days when George H.W. Bush ran in 1988 wrapped in the flag, saying he was on “the American side,” while his celebrity endorser Loretta Lynn complained that she couldn’t even pronounce the name Dukakis. Too foreign-sounding.
It also echoed a segment on Laura Ingraham’s show, in which it was suggested that Lt. Col. Alexander Vindman, an American war hero who immigrated from Ukraine, might be guilty of espionage.
And in his Vegas rally on Friday, Trump was again calling his predecessor “Barack Hussein Obama.”
This was another bad, crazy week trapped in Trump’s psychopathology. No sooner was the president acquitted than he put scare quotes around the words justice and Justice Department and sought to rewrite the narrative of the Mueller report, whose author warned that Russia was going to try to meddle in the U.S. election again.
Philip Rucker wrote in The Washington Post: “As his re-election campaign intensifies, Trump is using the powers of his office to manipulate the facts and settle the score. Advisers say the president is determined to protect his associates ensnared in the expansive Russia investigation, punish the prosecutors and investigators he believes betrayed him, and convince the public that the probe was exactly as he sees it: an illegal witch hunt.”
Trump, who moved from a Fifth Avenue penthouse to the White House, is sinking deeper into his poor-little-me complex, convinced that he is being persecuted.
His darker sense of grievance converges with a neon grandiosity. Trump is totally uncontrolled now. Most presidents worry about the seaminess of pardons and wait until the end. Trump is going full throttle on pardoning his pals and pals of his pals in an election year.
The Republicans have shown they are too scared to stop him and won’t. The Democrats want to stop him but can’t. (Although if they win the Senate back, Democrats will probably end up impeaching him again and this time have plenty of witnesses.)
Now, in a frightening new twist, the president is angry at his own intelligence team for trying to protect the national interest. He would rather hide actual intelligence from Congress than have Adam Schiff know something that Trump thinks would make him look bad politically.
As The Times reported, the president’s intelligence officials warned House lawmakers in a briefing that Russia was once more intent on trespassing on our election to help Trump, intent on interfering in both the Democratic primaries and the general. (They also told Bernie Sanders that the Russians were trying to help his campaign.)
News of the House briefing caused another Vesuvian eruption from the mercurial president, who is hypersensitive to any suggestion that he isn’t winning all on his own.
The Times story said that “the president berated Joseph Maguire, the outgoing acting director of national intelligence, for allowing it to take place,” especially because his nemesis Schiff was present.
A few days ago, the president replaced Maguire as acting director with Richard Grenell, the sycophantic ambassador to Germany whose qualifications for overseeing the nation’s 17 spy agencies include being a former Fox News commentator and Trump superfan who boasts a gold-level card with the Trump Organization.
As the Democrats sputter and spat and fight over federal giveaways and N.D.A.s, the unfettered president is overturning the rule of law and stuffing the agencies with toadies.
Nothing is in the national interest or public good. Everything is in the greater service of the Trump cult of personality.
In “Gone With the Wind,” Atlanta burned to the ground. In Trump’s version, Washington is aflame.
The president also pardoned or commuted the sentences of eight others on Tuesday, including Edward DeBartolo, a former owner of the San Francisco 49ers.
WASHINGTON — President Trump, citing what he said was advice from friends and business associates, granted clemency on Tuesday to a who’s who of white-collar criminals from politics, sports and business who were convicted on charges involving
- corruption and
— including the financier Michael R. Milken.
The president pardoned Mr. Milken, the so-called junk bond king of the 1980s, as well as the former New York City police commissioner Bernard B. Kerik and Edward J. DeBartolo Jr., a former owner of the San Francisco 49ers. He also commuted the sentence of Rod R. Blagojevich, a former Democratic governor of Illinois.
Their political and finance schemes made them household names, and three received prison terms while Mr. DeBartolo paid a $1 million fine.
Mr. Trump also pardoned David Safavian, the top federal procurement official under President George W. Bush, who had been sentenced in 2009 to a year in prison for lying about his ties to the lobbyist Jack Abramoff and obstructing the sprawling investigation into Mr. Abramoff’s efforts to win federal business. The president also granted clemency to six other people.Mr. Trump has repeatedly stated his commitment to prison reform and addressing the excessive sentences given to minorities. At the urging of Kim Kardashian West in 2018, he pardoned Alice Marie Johnson, a 63-year-old African-American woman serving a life sentence for a nonviolent drug conviction. Ms. Johnson was the centerpiece of a TV ad the Trump campaign ran this month during the Super Bowl.
But the president’s announcements on Tuesday were mostly aimed at wiping clean the slates of rich, powerful and well-connected white men. And they came after years of sophisticated public relations campaigns aimed at persuading Mr. Trump to exercise the authority given to him under the Constitution.
Patti Blagojevich, the wife of the former Illinois governor, frequently appeared on Fox News calling for Mr. Trump to commute her husband’s sentence. Mr. Kerik, a regular on Fox News, appeared on the network as recently as Monday night. Mr. Milken has sought to rebrand himself as a philanthropist in recent years as allies campaigned on his behalf for a pardon.
In conversations with his advisers, Mr. Trump has also raised the prospect of commuting the sentence of Roger J. Stone Jr., his longtime adviser, who was convicted in November of seven felony charges, including tampering with a witness and lying under oath in order to obstruct a congressional inquiry into whether the Trump campaign conspired with Russia to influence the 2016 election.
Asked about a pardon for Mr. Stone on Tuesday, Mr. Trump insisted that “I haven’t given it any thought.”
Democrats pounced on the president’s announcements.
“Today, Trump granted clemency to tax cheats, Wall Street crooks, billionaires and corrupt government officials,” said Senator Bernie Sanders, independent of Vermont, the leading Democratic candidate for president. “Meanwhile, thousands of poor and working-class kids sit in jail for nonviolent drug convictions. This is what a broken and racist criminal justice system looks like.”
Representative Bill Pascrell Jr., Democrat of New Jersey, said in a statement that the president abused the pardon power by using it to reward friends and repair the reputations of felons who do not deserve it.
“The pardoning of these disgraced figures should be treated as another national scandal by a lawless executive,” he said.
But Mr. Trump defended his grants of clemency on Tuesday.
He was particularly critical of the 14-year prison sentence for Mr. Blagojevich, who was convicted of trying when he was governor of Illinois to essentially sell the Senate seat vacated by Barack Obama when he became president. Mr. Blagojevich also once appeared on the reality series “The Celebrity Apprentice,” which Mr. Trump hosted.
“That was a tremendously powerful, ridiculous sentence, in my opinion,” Mr. Trump said after announcing that Mr. Blagojevich would go free after serving eight years in prison. The president alleged that the former governor was a victim of the same forces that investigated him for years, citing James B. Comey, the former F.B.I. director, and Patrick Fitzgerald, the U.S. attorney in Chicago who prosecuted Mr. Blagojevich.
“It was a prosecution by the same people — Comey, Fitzpatrick, the same group,” Mr. Trump told reporters, misstating Mr. Fitzgerald’s name.
Mr. Trump gave no indication that he relied on the usual vetting process that guides presidents making use of their constitutional authority to wipe away criminal convictions or commute prison sentences.
Traditionally, the Justice Department’s pardons office would make recommendations about pardons and commutations to the deputy attorney general, who would weigh in and then pass the Justice Department’s final determinations to the White House. Instead, Mr. Trump told reporters that he followed “recommendations” in making his decisions.
Those recommendations, according to a White House statement, came from the president’s longtime friends, business executives, celebrities, campaign donors, sports figures and political allies.
In pardoning Mr. Kerik, who pleaded guilty of tax fraud and lying to the government, Mr. Trump said he heard from more than a dozen people, including Rudolph W. Giuliani, the former New York mayor and Mr. Trump’s personal lawyer; Geraldo Rivera, a Fox TV personality; and Eddie Gallagher, a former Navy SEAL and accused war criminal whose demotion was overturned by Mr. Trump last year.
Mr. Kerik had a pardon application pending and Mr. Blagojevich had a commutation application pending; but a source close to the pardons office did not believe that the pardon attorney had given either of those applications full-throated support.
Mr. Milken, whose dealings contributed to the collapse of the savings-and-loan industry, fought for decades to reverse his conviction for securities fraud. Richard LeFrak, a billionaire real-estate magnate and long time friend, Sheldon G. Adelson, a prominent Republican donor, and Nelson Peltz, a billionaire investor who hosted a $10 million fund-raiser for the president’s 2020 campaign on Saturday, were among those who suggested that the president pardon him.
Mr. Milken did not have a pardon or commutation applications pending at the Justice Department’s pardons office, meaning that Mr. Trump made that decision entirely without official Justice Department input. Two previous applications had been denied and closed.
Football greats Jerry Rice and Joe Montana — but also the singer-songwriter Paul Anka — urged him to pardon Mr. DeBartolo, who pleaded guilty in 1998 to concealing an extortion attempt. Mr. DeBartolo avoided prison but was fined $1 million and suspended for a year by the National Football League. He later handed over the 49ers to his sister Denise DeBartolo York.
Previous presidents have often waited until the final moments of their presidency to wield the pardon power on behalf of their friends. Former President Bill Clinton pardoned Marc Rich, a hedge fund manager and financier who was convicted of tax evasion and other crimes, on January 20, 2001, Mr. Clinton’s last day in office.
Others, including former presidents Bush and Obama, largely reserved their clemency authority for people convicted of nonviolent, low-level drug crimes and other offenses who were identified as part of a rigorous process run by a team of government lawyers in the Justice Department.
Mr. Trump, however, has shrugged off those traditions and the controversy that sometimes comes with the use of the pardon power. He issued a “full and unconditional pardon” to Joseph M. Arpaio, the Arizona sheriff and immigration hard-liner convicted of contempt of court, in August of 2017.
Less than a year later, he did the same for I. Lewis Libby Jr., a former aide to Mr. Bush who was convicted of obstructing justice and perjury.
In addition to helping erase the convictions of the well-connected and powerful, Mr. Trump on Tuesday also pardoned a tech executive who pleaded guilty to conspiracy, the owner of a construction company who underpaid his taxes and a woman convicted of stealing cars. He also commuted the sentences of a woman convicted of drug distribution, another woman who was part of a marijuana smuggling ring, and a minority owner of a health care company who was sentenced to 35 years for a scheme to defraud the government.
Their relative anonymity was a sharp contrast to the prominence of the four men highlighted by the president.
Mr. Milken, was credited in the 1980s with using junk bonds to finance big debt-laden corporate buyouts an, pleaded guilty to securities reporting violations and tax offenses and the Securities and Exchange Commission banned him for life. The investigation came to highlight the corporate excesses on Wall Street in the 1980s.
In the years since his conviction, Mr. Milken has emerged as a major cancer philanthropist and is the founder of the Milken Institute, a nonpartisan think tank that holds a popular conference in Los Angeles, which convenes the world’s most powerful people in government, industry and finance.
Mr. Kerik, a police detective, served as Mr. Giuliani’s bodyguard and chauffeur during the 1993 mayoral race and later served in a series of high-ranking positions in the city’s Department of Correction. Eventually, Mr. Giuliani named Mr. Kerik correction commissioner in 1997 and police commissioner in 2000.
In 2004, his bid to become Homeland Security secretary in the Bush cabinet collapsed amid scandals. In June 2006, he pleaded guilty in State Supreme Court in the Bronx to two misdemeanors tied to renovations done on his apartment. Four years later, Mr. Kerik pleaded guilty to tax fraud and making false statements.
Mr. DeBartolo presided over the golden era of the 49ers when the team won five Super Bowl championships under coach Bill Walsh with legendary players like Joe Montana, Steve Young, Ronnie Lott and Jerry Rice. He was elected to the National Football League Hall of Fame in 2014 despite his conviction.
But in the late 1990s, Mr. DeBartolo was an investor in the Hollywood Casino Corp., a Dallas company seeking permission for a riverboat casino in Louisiana. On March 12, 1997, he met Edwin W. Edwards, the influential former governor of Louisiana, for lunch in California and handed over $400,000 that Mr. Edwards had demanded for his help in securing a license. The next day, the Gaming Board granted the license. A month later, federal agents raided Mr. Edwards’s house and office, seizing the $400,000.
“Why do it? It actually was just plain stupidity, and I should have just walked away from it,” Mr. DeBartolo told NFL Films for a biographical documentary in 2012. “I was as much to blame because I was old enough to know better and too stupid to do anything about it.”
Dan Rather and Sam Donaldson tell CNN’s Don Lemon that they think that President Donald Trump is dangerous for the country because Trump is only interested in protecting himself.
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 a 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 spelling, doesn’t know the difference between a hyphen and an apostrophe, doesn’t appear to understand fractions, needs basic geography lessons, speaks 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:
- campaign finance,
- work visas,
- the Islamic State,
- “things” generally,
- environmental-impact statements,
- renewable energy,
- nuclear weapons,
- tax law,
- currency devaluation,
- “the system,”
- debt, and
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 died … His 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
- his net worth,
- the size of the crowd at his inauguration, and
- 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
- placed restrictions on disaster aid to Puerto Rico in apparent response to criticism of him and his administration;
- directed the Pentagon to reconsider whether to award a $10 billion contract to Amazon because its CEO owns The Washington Post, whose coverage he doesn’t like;
- threatened to take “regulatory and legislative” action against Facebook, Google, and Twitter, because of their supposed “terrible bias” against him;
- tried to get White House staff to tell the Justice Department to try to block the merger between AT&T and Time Warner in order to punish CNN for its coverage;
- attacked his first attorney general for allowing the indictment of two Republican congressmen who had supported him; and
- ordered the revocation of the security clearance of a former CIA director who had criticized him.
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.”
Profit? Self-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 place—in 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.