Could the 25th Amendment really remove Trump from office?
Since the election of Donald Trump and the subsequent descent of our country into increasingly unmanageable political and constitutional chaos, Americans have become acquainted with a previously obscure article in the 25th Amendment to the Constitution that allows a president's own Cabinet to begin the process of removing him from office. Such a backdoor to removing an incapacitated or malevolent president from office never existed before 1967 — the Constitution's architects made it extraordinarily difficult to remove the chief executive through impeachment.
Trump has proven in myriad ways — most recently his inability to unequivocally condemn neo-Nazis for their role in deadly violence — that he is unfit for the presidency and incapable of carrying out his constitutional obligations to all citizens. Not only has he committed a litany of arguably impeachable offenses in his first seven months in office, his erratic, aggressive tweets, rambling public appearances and statements, lack of basic focus, and competence and inability to run a functioning executive branch, all call into question his baseline mental capacity. The president has not aides but babysitters and regents who constantly leak to the press that the president is an unhinged, undisciplined, tyrannical mess harboring racial and personal resentments against everyone from African-Americans to Mika Brzezinski.
Elected Republicans, to their eternal shame, first reluctantly capitulated to this monster and then, once he was in office, served as his gleeful office assistants as he took a cudgel to America's social and political norms. With his Gallup approval hitting an astonishing low of 34 percent this week and sure to plunge more after his disgusting neo-Nazi fiasco, and with a rising percentage of Americans favoring the president's immediate impeachment, it is long past time to start gaming out scenarios where Trump is removed. We cannot take three-and-a-half more years of this nonstop hell without experiencing a collective nervous breakdown. But congressional Republicans have given no indication that they are even considering impeachment. Could the 25th Amendment really save us?
The architects of the 25th Amendment sought to do several things. First, they wanted to remove the ambiguity about the Constitution's procedures should the president die or resign from office. When William Henry Harrison died just weeks into his first term in 1841, his vice president, John Tyler, claimed for himself the full powers of the office. Others thought that he was merely the "acting president" who should not get to serve a full term. Tyler obviously won that fight and set an important normative precedent. But while the mid-term transfer of power from multiple post-Tyler presidents to their respective vice presidents went smoothly, the legal order's lack of clarity left open the possibility of a serious crisis. The 25th Amendment made it clear that the vice president becomes the president, not the "acting president," and then gives that person the right to nominate a new VP, subject to majority approval from Congress.
The 25th Amendment also gave the president the ability to temporarily and voluntarily transfer power to the vice president, as both Ronald Reagan and George W. Bush did when they underwent surgeries that involved general anesthesia. And Section 4 of the amendment did something truly disruptive: It allowed the vice president, along with a majority of the "principal officers of the executive departments" to recommend the president's removal from office if he is "unable to discharge the powers and duties of his office." One inspiration for this was the situation that unfolded after Woodrow Wilson's stroke, when first lady Edith Wilson and the White House physician worked together to conceal the president's incapacity from the public.
As soon as this declaration is presented in written form to congressional leaders, the vice president assumes the full powers of the office as "acting president." In our case, that means Trump is gone. The people rejoice momentarily until they realize that Mike Pence will be moving into the Oval Office.
But wait! There's more. That is not actually where the process really ends.
As in a high school debate, the president gets to respond in writing by declaring that, in fact, he is able to carry out the obligations of his office. Confusingly, the amendment offers no guidance on what this declaration would look like. Would a hand-scratched note saying "I CAN DO IT" suffice? Does the president need to spell "water" backwards and forwards and say what today's date is? Does he need to walk through the Rose Garden touching his nose?
It's unclear. But once he responds, the president gets to be the president again (boo!), unless the vice president and a majority of the Cabinet submit another declaration that the president can't do the presidenting, within four days of the president's counter-claim. Then the vice president is once again the acting president, whereupon Congress has 48 hours to convene and then 21 days to vote and settle the issue. The president can then be removed, but only with a two-thirds majority in both houses, at which point, "the vice president shall continue to discharge the same as acting president," whatever that means. To be honest, the text of the 25th Amendment seems to create as many ambiguities and problems as it solves. Section 4 could be interpreted to see the presidency change hands four times in the span of a month. Who wrote this thing, anyway?
So, to recap, this is what would happen in Trump's case: Vice President Pence and a majority of Trump's Cabinet principles declare Trump to be unfit for the office and Trump would be temporarily removed from office. Trump, of course, would contest this. "My sad and failing Cabinet members are Enemies of the People who want to destroy this great movement and...... (minutes-long pause for Tweet #2) .....no one in history is more able to discharge anything than me. I am the king of discharging! #MAGA!" Trump is then president again unless Pence and co. submit a second declaration of incapacity. Then it is up to a vote in a Republican-held Congress that has thus far shown no inclination to take the drastic step of directly removing the president from office, preferring instead to surf the crest of his lunatic wave until they all crash together.
A president who encourages police officers to assault American citizens, who attacks judges and businesses using the imprimatur of his office, who recklessly conducts nuclear diplomacy from his Twitter account, and who refuses to condemn the greatest enemies this country has ever known after they committed a heinous murder, is someone who is mentally and ethically unfit to be the president. All Americans, including the leadership of both parties in Congress, should begin putting pressure on Trump's Cabinet, and on Vice President Pence, to do exactly that. Unlike an impeachment process that would require Congress to be the first mover in this crisis, the 25th Amendment route would provide congressional Republicans with plenty of political cover, by having the president's own closest confidantes and advisers declare him unfit for office.
It is often said that impeachment is a political process, rather than a legal one, and the same should be true of the 25th Amendment. While removing the president in this fashion sets a dangerous precedent, if leaders inside the White House don't act, all we may have left of this country is our 25th Amendment precedent and a smoldering radioactive crater inhabited by Nazis in a fallout shelter.
The sooner Trump's allies begin the process of ridding the republic of this scourge, the sooner we can return to the kind of normalcy and competent governance that America deserves.
Editor's note: An earlier version of this article mischaracterized how elements of the 25th Amendment would be enacted. It has since been corrected. We regret the error.