00:05Gentlemen, I want to try to separate policy and politics for a second.
00:10I know it's hard to do around this place, but I thought Senator Cornyn made a very good point in his opening remarks.
00:19I think Senator Smith made the same point that the policy here is very important.
00:24And I want to ask you your opinion on the policy.
00:31Professor, tell me briefly, I know you can't talk about auto pens, but tell me briefly about the 25th Amendment.
00:40Senator, the 25th Amendment provides the process by which to implement a principle that's in the original Constitution,
00:47which is when the President's unable to exercise the powers and duties of the presidency,
00:52somebody else exercises them, starting with the Vice President.
00:57And the 25th Amendment sets up a process by which, if there's a question whether the President is able to do that,
01:05the Vice President and the heads of the executive departments can temporarily basically put the Vice President in his acting president.
01:15And then Congress ultimately decides the question.
01:17Well, the standard, is it not, Professor, the standard is disability of the President.
01:22Is that correct?
01:23Unable to exercise the powers and duties.
01:25Okay.
01:25Yes.
01:26Here's what I would like your opinion on and the opinion of these two gentlemen here.
01:32You have all been staffers.
01:35You've worked in government.
01:36You've had a boss.
01:37In Mr. Spicer's case, his boss was the President of the United States.
01:54Let's suppose the President, you were using your experience as a staffer.
01:59You were working for the President, any President.
02:01Let me, hypothetically a President.
02:03Unless, let's suppose the President started talking about, started talking like he was from outer space.
02:11Let's suppose the President became fatigued very easily.
02:20He couldn't finish a sentence without taking a nap.
02:23Let's suppose the President, I mean, he was just physically in bad shape, mentally and physically.
02:35Mentally, he may or may not have, you know, not a doctor, neurodegenerative disease.
02:41But physically, you can see, you could bake a Thanksgiving turkey in the time it takes him to walk across the stage.
02:53But what is, do you think, as a member of his staff, what do you think is your moral obligation to say,
03:01wait a minute, the President can't do the job anymore?
03:06I know you're loyal folks.
03:08You believe in your President, this President, whichever President, I'm speaking hypothetically.
03:14You're loyal.
03:15You want to be a good staffer.
03:17But you also have a moral obligation.
03:20How do you reach that decision, Professor?
03:22Professor, and I'll go to each of you.
03:26Senator, I think the first thing you would have to do in a situation like that is exercise your own judgment.
03:33Is this, how serious is this problem?
03:35Because everybody has moments when they lose focus, it happens.
03:38But if somebody thinks this is a really serious problem, I think the first thing to do is the most difficult, which is to say to the President, because the 25th Amendment also provides that the President can say, I'm unable to exercise the powers and duties of my office.
03:55And suppose the President says, look, trust me, I can't.
03:59And it's clear to you that he has neurodegenerative disease and he can't.
04:03What do you do?
04:04Do you have a moral obligation as a staff member to go to the American people and say, we've got a problem here, may cost me my career?
04:11Senator, I think at that point you have an obligation to talk to the Vice President, who is in charge of the Section 4 process under the 25th Amendment.
04:21What about you, Mr. Wald?
04:24You have a moral obligation.
04:25I understand you want it to go away, you want to work it out within, but you can't.
04:29When does a staffer have a moral obligation to stand up and say he can't be President anymore, she can't be?
04:39Well, Senator, the 25th Amendment only works if individual staffers or officers of the United States exercise that kind of moral judgment.
04:47That's what I'm asking you.
04:47Yeah, so, I mean, I think always, as the professor said, I mean, the presidency is an enormous burden, so it would be not one instance.
04:55It would have to be several instances of a failure to exercise judgment.
05:00How do you make that decision?
05:01You're the staffer.
05:02I get it.
05:03Yeah, well, I think it begins with prayer, of course.
05:05But after that, I think it's conversation with other staffers.
05:08And if you're unable to confront the president or to raise the issue with the vice president, you should resign.
05:13What about you, Mr. Spicer?
05:15Do you stand up and do it and tell the truth and run?
05:17Or do you have a greater obligation to your boss?
05:21Well, luckily, I didn't have that problem.
05:23But I would say that you have a moral obligation as an American, as a citizen, as a human being.
05:29If the leader of the free world cannot conduct themselves to make the decisions that are critical to this country and to the world,
05:36you absolutely have a moral obligation to follow the chain of command.
05:40And if they don't act, then you must.
05:43Do either of you gentlemen disagree with that?
05:47Professor?
05:54Senator, I think acting means talking to the people who have the responsibility or are in a position under the Constitution to do something.
06:01You don't agree with Mr. Spicer?
06:03Senator, I'm not sure exactly what he has in mind other than talking to the people who can make the decision.
06:09I'm just trying to ask.
06:11You've all been staffers.
06:12Suppose you go to everybody you're supposed to go to and they all say, my advice to you is to shut up.
06:19Do you have a moral obligation as a staffer to say, look, this person can't be President of the United States.
06:27He's in policy.
06:28He physically can't do it.
06:30Senator Kennedy, it's not a question of whether a staffer has that obligation.
06:34It's whether you as an American have that obligation.
06:36And I think each and every one of us does.
06:38Yeah, but you can see it.
06:39An American can.
06:41Professor, what do you think?
06:41Senator, I think there are situations under which someone in that position should speak publicly,
06:50but I also think that the views of a single individual who is not the person who is constitutionally responsible for taking measures
07:00should be considered by the public as just the views of one individual who has some information about the subject.