Allegations that President Trump asked fired FBI Director James Comey to quash an investigation into his former national security adviser Michael Flynn have caused some political analysts to resurrect a mechanism for the president’s removal from office: the 25th Amendment to the U.S. Constitution.
Conservative columnist Ross Douthat made waves Wednesday morning with a column in the New York Times advocating the use of Section 4 of the 25th Amendment — rather than impeachment — to remove Trump from office. And this isn’t the first time it’s been suggested. Washington Post columnist Richard Cohen made a similar argument in January.
As amendments go, the 25th is relatively exciting because it deals with the presidential line of succession. It has been referenced in Hollywood movies like “Air Force One” and popular television shows like “24.”
And though it’s been invoked as means for ousting Trump, it’s not entirely clear that this would be possible.
What is the 25th Amendment?
Briefly, the 25th Amendment is intended to clarify what happens in the event of the president or vice president’s death, resignation or removal from office. It also outlines how an Oval Office vacancy should be filled if the president becomes disabled and cannot fulfill his or her duties.
There are four separate sections to the amendment. Section 4, which concerns presidential disability, has gotten the most attention from Trump critics.
Why was it created?
In an interview with Yahoo News, Brian C. Kalt, a professor of law at Michigan State University, explained that the original U.S. Constitution had some small gaps concerning the presidential line of succession. Over the years, these concerns have been largely hypothetical and haven’t led to significant problems. But a consensus for the need to account for those problems intensified after the assassination of President John F. Kennedy.
Congress passed the 25th Amendment on July 6, 1965, and was ratified on February 10, 1967.
What is Section 1?
The amendment’s first part states that if the president dies, resigns or is removed from office, the vice president will then become president.
“That might seem obvious but it was actually a matter of quite a bit of controversy the first time it happened, when William Henry Harrison died in 1841,” Kalt said. “Vice President Tyler said that he was now president and other people looking at the Constitution said, ‘No, we think you’re just acting president.’”
What is Section 2?
Section 2 details the process for filling a vice presidential vacancy. If there is no vice president, the president shall nominate someone to fill that vacancy. He or she will take office following confirmation by a simple majority from the House of Representatives and the Senate.
This section has twice been used since the amendment passed. When Vice President Spiro Agnew resigned in 1973, then President Richard Nixon appointed Gerald Ford to be the new vice president. The following year, when Ford became president upon Nixon’s resignation, he appointed Nelson Rockefeller to take his place.
What is Section 3?
Section 3 states that should the president inform Congress that he is unable to “discharge the powers and duties of his office,” the vice president will become acting president until the president is once again capable.
This has been used most often in situations in which the president is under sedation for a colonoscopy or a similar medical procedure. Presidents Ronald Reagan and George W. Bush both invoked the amendment in this way.
What is Section 4?
This is where things get a bit more complicated.
Section 4 outlines what should happen in circumstances when the president is disabled but cannot or will not declare this fact. This might be the situation if the president is in a coma or his plane crashed, he is missing, the administration cannot communicate with him and no one knows whether he’s alive or dead.
“In a situation like that,” Kalt said, “they thought it was important to have a process.”
According to Section 4, if the vice president and a majority of his cabinet say that the president is disabled and cannot “discharge the powers and duties of his office,” then the vice president becomes president.
Could Section 4 be used to oust Trump?
In his New York Times column, Douthat argues that Trump’s situation is not what the “Cold War-era designers were envisioning” but that the president’s inability to “really govern” is testified to on a daily basis by his Cabinet.
“Read the things that these people, members of his inner circle, his personally selected appointees, say daily through anonymous quotations to the press. (And I assure you they say worse off the record.) They have no respect for him, indeed they seem to palpate with contempt for him, and to regard their mission as equivalent to being stewards for a syphilitic emperor,” Douthat wrote.
Kalt, who earned his juris doctor from Yale Law School and researches structural constitutional law and juries, argues, however, that using Section 4 in the case of Trump “would be a really bad idea.”
He believes that commentators like Douthat and Cohen might think Trump is nuts and unfit for the office, but says that the fact that he’s still lucid and able to communicate would make problematic the use of Section 4 as a means for removing him from office.
If Vice President Mike Pence and the majority of Trump’s Cabinet were to declare that Trump is disabled, Pence would temporarily assume the role of commander in chief, but then Trump could easily come back and declare that he is just fine. In this situation, Pence and the cabinet would then have four days to reiterate their declaration that he is disabled.
If they failed to do this, Trump would have his power back. If they did reiterate their claim, then Congress would assemble within 48 hours and vote on whether they think Trump is able to “discharge the powers and duties of his office.”
Pence would stay on as president if he could secure a two-thirds vote in both the House and the Senate that Trump is unable to be president.
“If the president loses that vote he can always keep coming back and say, ‘Well, now I’m OK,’ and again Congress would have to vote,” Kalt said.
Section 4, it bears pointing out, has never been used.
The importance of the four-day period
Kalt discusses the 25th Amendment in great detail in Chapter 3 of his book “Constitutional Cliffhangers.”
He said that commentators often get a very important aspect of Section 4 wrong. According to his reading of the amendment, if the president were to say he is not disabled, he would not retake power immediately — because of the four-day waiting period.
The law scholar said it would be very dangerous if the president were to regain his power right away.
“If he took power back immediately, he would fire the Cabinet and they wouldn’t be able to say that he was disabled, and that’s not the right reading. They would say, ‘Well, you can’t fire us.’ The acting president would say that he’s president and the president would say he’s in charge. There would be two sets of people saying they are the Cabinet.”
Here is the complete text of Section 4 of the 25th Amendment
“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.”
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