The 25th Amendment: If Not Now, When?
President Trump speaks at the “Stop the Steal” Rally on Wednesday. Source
Two days remain in President Donald J. Trump’s term before President-elect Joe Biden will become the 46th president of the United States. Some argue that after the month’s violent riots at the Capitol, the US cannot withstand this presidency any longer. Fears over Trump potentially escalating violence to hold on to power and continuing his effort to ‘stop the steal’ have raised immediate conversations over how to remove him from office. Many Democratic lawmakers and one Republican representative (Rep. Adam Kinzinger - IL) have publicly supported the removal of President Trump, through either impeachment or the invocation of the 25th amendment. Two Republican senators have called for Trump to resign, but have not publicly supported the use of the 25th.
For Trump to be impeached for a second time, it required an expedited vote on the floor of the House, bypassing the committee stage. The House has done it’s part: Articles of impeachment passed by a vote of 232-197. However, for him to be not just impeached but removed from office, the Republican-controlled Senate also has to convict him. Sen. Majority Leader Mitch McConnell has said that the Senate trial for Pres. Trump’s impeachment would not begin until after Trump’s term was over, effectively closing that option for removal.
A faster method to remove Trump from office would require his closest allies to turn against him. The fourth section of the 25th amendment allows for the Vice President as well as members of the President’s cabinet to declare the president “unable to discharge the powers and duties of his office.” If a majority of the cabinet agrees, the Vice President must notify Congress in writing. He would then immediately become acting president. President Trump would likely dispute this, but the matter is ultimately decided by Congress. A two-thirds vote of both the House and Senate is needed to keep the Vice President in charge. Thus, in the context of Trump having two days left in office, Congress would not return a decision in time to put him back in charge. If Pence invokes the 25th amendment, Trump does not have the time to overturn the process.
The united front between the president and VP has now broken over the events of last Wednesday. Trump is reportedly furious that Pence did not overturn the election results during the Joint Session of Congress on January 6th. Pence is upset that the President did not check on him during the riot and has not condemned death threats made against him, including chants of “Hang Mike Pence!” made by rioters in the Capitol. Pres. Trump and Pence allegedly have not spoken since January 6th.
According to a source close to the vice president, Pence is keeping the 25th amendment process in mind in case the president becomes “more unstable”, but is mainly focused on helping the transition move along smoothly. Pence has not discussed invoking the 25th Amendment with any Cabinet officials, according to an administration official speaking to CNN.
What would it take for Pence to classify Trump’s actions as “more unstable” and push him to invoke the 25th amendment? If inciting a violent riot to take over the Capitol and trying to overturn the electoral process doesn’t make the president unfit for office in Pence’s mind, what will? Pelosi and other Democratic lawmakers have voiced concern over Trump’s status as Commander-in-Chief — including control of nuclear weapons — as well as a potential second riot on January 20th. Waiting to see if Trump becomes “more unstable” could be a dangerous game for Pence to play.
With Mitch McConnell in charge of the Senate until the next session convenes - in which Democrats will hold the majority by the tie-breaking vote of Vice President Elect Kamala Harris - the 25th amendment remains on the table as a way to remove the president before he becomes more unstable. This is something that the Democrats seem well aware of. Democratic leader Chuck Schumer said that he and Pelosi tried to call Pence to invoke the Amendment to oust Trump from office, were put on hold for 25 minutes and then were finally told Pence would not come to the phone.
The fourth section of the 25th amendment has never been used before, and debate over if it should be used for various issues such as senility, dementia, or other health problems is contestesd and without precedent. Former Senator Evan Bayh (IN), who drafted the amendment, told his staff that the fourth clause should only be invoked “if the President was as nutty as a fruit cake.” Democrats from the House Judiciary Committee in a letter to Pence argued, “President Trump’s willingness to incite violence and social unrest to overturn the election results by force clearly meet this standard.”
Increasingly, members of both parties are agreeing with that letter. Maryland’s Republican Governor Larry Hogan said “I think there’s no question that America would be better off if the president would resign or be removed from office and if Mike Pence, the vice president of the United States, would conduct a peaceful transition of power over the next 13 days until President [Joe] Biden is sworn in,” earlier this month.
However, the ultimate decision comes down to Pence alone. If the Vice President won’t implement the fourth section of the 25th Amendment now, when would he consider it to be appropriate? The remainder for the Trump presidency — as well as precedent of how much a president can get away with in office - now relies on how much damage to our democratic institutions will be enough for Mike Pence.