What is the 25th Amendment and how could it work in removing Donald Trump from office?
It's been the talk of the town in Washington this week
Washington was abuzz this week with guessing and accusations about who penned the anonymous letter claiming there’s a secret anti-Trump faction inside the White House who are working to undermine the presidency.
Wild and ridiculous allegations were made against pretty much everyone, including Vice President Mike Pence.
And one of the most incendiary sections of the New York Times op-ed concerned the “early whispers” that have supposedly been heard in the White House about using the 25th Amendment of the Constitution to remove Trump from office.
But what is it and how does it work? Don’t worry; we’ve got you legal eagles covered.
25th Amendment: What is it and what does it say?
Section 4 of the 25th Amendment to the United States Constitution, ratified and adopted by the states 51 years ago, provides a legal process for the removal of a sitting president.
It came about in the aftermath of JFK’s assassination in 1963, when there was some confusion about presidential and vice-presidential succession.
The text reads, in full:
Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
25th Amendment: How does it actually work?
If Trump was to be removed from office using this procedure, the vice president (Mike Pence) and a majority of the cabinet would have to write to the president pro tempore of the Senate (currently Senator Orrin G. Hatch) and the speaker of the House (currently Paul Ryan) that Trump “is unable to discharge the powers and duties of his office”.
This would strip Trump of his presidential powers and make Pence the acting president.
Pence and his anti-Trump allies, in this scenario, would then have 21 days to convince two-thirds of both the House and the Senate that Trump was unable to continue as president, so that Pence could take his place.
If the votes in Congress failed, Trump would immediately resume his powers and duties.
In reality, the deep divisions between the Republicans and Democrats would make any such votes extremely difficult to predict - would the Democrats actually vote to remove Trump from office, given that Pence could arguably be more effective in terms of actually putting through right-wing legislation than Trump has been so far? Meanwhile, would the Republicans really be the first party to vote out their own president?
25th Amendment: When has it been used in the past?
While the sections of the amendment related to presidential and vice-presidential succession have been used many times, section 4 has never been invoked. In truth, such an invocation would mark a volatile and explosive change in American politics.
However, in the final years and months of Ronald Reagan’s presidency (1981 to 1989) there were concerns about the president’s mental state, in part because of his advanced age, and there were similar whispers about invoking the amendment.
According to the Washington Post, “most high-level White House aides believed that President Reagan was so depressed, inept and inattentive… that the possibility of invoking the 25th Amendment to remove him from office was raised in a memo to Howard H. Baker Jr., who was just taking office as Reagan’s chief of staff.”
“He was lazy; he wasn’t interested in the job,” according to one aide. “They said he wouldn’t read the papers they gave him – even short position papers and documents. They said he wouldn’t come over to work – all he wanted to do was to watch movies and television at the residence.”
In the end, however, Reagan served a full time and was formally diagnosed with Alzheimer’s in 1994, five years after he left office.
25th Amendment: What are people saying about removing Trump from office?
Left-wing Senator, Trump critic and possible 2020 presidential contender Elizabeth Warren has publicly called on the Cabinet to remove the president from office.
“If senior officials believe the president is unfit, they should stop hiding behind anonymous op-eds and leaking info to Bob Woodward, and do what the Constitution demands they do: invoke the 25th Amendment and remove this president from office,” she said on Twitter.
Berkeley professor Robert Reich, who served as Bill Clinton’s Secretary of Labor, added: “This is precisely the time to invoke the 25th amendment. Now. Before it’s too late.”
Not everyone agrees, however. CNN political analyst Brian J. Karem said: “With respect to everyone who is speculating “who” wrote the letter - “why” is more important. It is a soft coup and is an unconstitutional way to eliminate an unfit president. 25th amendment and impeachment are the only legit ways-and not enough votes for either.”
It’s safe to say we’re in a wild time and nothing – NOTHING – is off the table any more.