Published by The Lawfare Institute
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The hours since Wednesday afternoon have seen a tidal wave of calls for Donald Trump to lose the powers and duties of the office of the presidency for his role in the historic storming of the U.S. Capitol. There is a new push for impeachment. And news reports suggest that members of Trump’s Cabinet are considering invoking the 25th Amendment to take from Trump, in the words of the amendment, “the powers and duties of the office” he holds. (We should note that this reporting is thinly sourced; Maggie Haberman of the New York Times reported last night that a source merely says “the 25th Amendment discussions are staff-based within the administration and with some Republicans on the Hill, and that they’re not particularly focused.”)
This comes on the heels of a very strange series of events from inside the executive branch, including a statement on Wednesday afternoon by the secretary of defense that after consulting with Vice President Pence and top congressional leaders—but seemingly not President Trump—he was “activating D.C. National Guard to assist federal and local law enforcement as they work to peacefully address the situation.”
Shortly before 4 a.m. this morning, a reconvened Congress finally confirmed President-elect Biden’s presidential victory. And then President Trump issued this statement: “Even though I totally disagree with the outcome of the election, and the facts bear me out, nevertheless there will be an orderly transition on January 20th.” But it is far from clear that Trump will stick by, or do what it takes to carry out, this pledge.
Talking of removing a president is easy. But getting rid of one is hard, as it should be in a constitutional republic with a well-established system for electing its leaders. Any decision to remove a president is also fraught with peril. This post reviews the basic law governing the questions about taking away a president’s powers.
1. What did the president do to trigger discussion of an urgent removal?
In brief, Trump summoned yesterday’s mob to Washington and incited it with pronouncements like “You’ll never take back our country with weakness.” The mob marched on the Capitol; breached, ransacked, and damaged the building; disrupted the constitutional process for counting electoral votes; and occupied the Senate chamber. Four people died. After seeing the destruction and terror that the mob wrought, Trump released a video and tweet justifying and effectively condoning its actions, while at the same time meekly calling for peace.
There is little controversy about Trump’s culpability in the day’s events. Liz Cheney of Wyoming, the third highest-ranking Republican in the House of Representatives, told Fox News, “We just had a violent mob assault the U.S. Capitol in an attempt to prevent us from carrying out our constitutional duty. There’s no question the president formed the mob, the president incited the mob, the president addressed the mob. He lit the flame.” Sen. Mitt Romney said, “What happened here today was an insurrection, incited by the president of the United States.” And momentum appears to be building for something dramatic to be done about it; even Vermont’s Republican Governor Phil Scott tweeted, “President Trump should resign or be removed from office by his Cabinet, or by the Congress.”
2. Can Trump be impeached and removed quickly enough to matter?
Yes, but Congress would have to roll back much of the pomp and circumstance it has developed around the process.
With his incitement of the attack on the Capitol building, Trump cleared the hurdle of “high crimes and misdemeanors,” which, along with treason and bribery, is a constitutional trigger for impeachment. Articles of impeachment could be finalized within minutes and voted on with minimal debate. The Senate could then immediately convene to try the president. The Constitution requires “the Concurrence of two thirds of the Members present” for conviction. It does not, however, require a lengthy trial or specific procedure, even though Congress has developed elaborate rules to govern—and elongate—the impeachment and trial process. The Senate played fast and loose with its own rules to facilitate Trump’s acquittal a year ago and could do the same in the other direction if its members had the will to secure a quick conviction.
But therein lies the main rub. The House and the Senate would need to meet to change their rules and allow an expedited process. Could it be done? Yes. Would it be easy? Not so much.
There’s a lot of machinery to move for that to happen in a timely fashion, and the president has only 13 days left in office. The president’s most rabid supporters in both chambers could still delay the rule changes needed to see this process through with due haste. And principles of justice would demand that President Trump, even in these circumstances, be afforded an adequate defense, necessarily prolonging any trial.
A second Trump impeachment, followed this time by conviction, would probably include the Senate’s disqualification of Trump from any future federal office, including the presidency—an option that only the impeachment and removal process offers. But the impeachment route takes a few days, even in a fastest-case scenario. In this intervening period an angry, vengeful Trump could do great additional damage.
3. What about using the 25th Amendment?
Section 4 of the amendment creates a process by which the chief executive can be declared “unable to discharge the powers and duties of his office.” The drafters of the 25th Amendment meant it to apply more to cases of true presidential incapacity—like a massive stroke or a coma—than to instances of very bad judgment. But because the relevant triggering criterion, the president’s inability “to discharge the powers and duties of his office,” is undefined in the amendment, a president who has proved himself persistently unable to perform the duties of the office can warrant Section 4’s application, even without obvious physical impairment. This is why entities from the Washington Post to the National Association of Manufacturers have called for a 25th Amendment solution right away. Law professor and 25th Amendment expert Brian Kalt explained in 2019 two scenarios in which activating Section 4 might be appropriate:
The first is a president whose impairment is severe enough that the helm is, effectively, unmanned, even if he is still somehow able to claim that he is able to discharge his powers and duties. This could arise for a number of reasons, such as a severe stroke, a psychotic break or moderate dementia. ...
Then there are cases in which the president might be not quite so incapacitated but, nevertheless, impaired to the point of teeing up a disaster. Consider, for example, an unhinged president who orders a capricious nuclear strike against another country—the problem here is not that the president is “unable” so much as all too able to wipe out millions of lives.
Neither of these scenarios quite fits the current situation, but the latter is now closer to reality than when Kalt wrote this for Lawfare. We believe that Trump’s unhinged postelection behavior, his manifest inability or unwillingness for weeks to distinguish reality from fiction about the results of the election, and his detachment from exercising the basic responsibilities of the office would meet the “unable to perform” standard of the 25th Amendment. (The definitional issue is almost certainly one on which the vice president and the principal executive officers would have the final say, with both houses of Congress playing a role in the event of a presidential challenge; the matter almost certainly cannot be reviewed in court.)
The 25th Amendment’s Section 4 puts the vice president up front in the decision to assess the president’s ability. Without the vice president’s assent, no declaration of disability can occur. If “a majority of ... the principal officers of the executive departments” (effectively the Cabinet) agrees with the vice president’s assertion of disability, then presidential powers would transfer to the vice president temporarily for the duration of the disability. When the vice president and the majority of the principal officers transmit to the Senate’s president pro tempore and the House’s speaker their determination, the vice president becomes acting president.
The president can challenge the declaration. If he does, the vice president and the majority of the principal officers of the executive departments can disagree with the president’s assertion of ability, and they have four days to again declare that he remains unable. The dominant understanding of the 25th Amendment is that the vice president continues as acting president during this four-day period. If the vice president and the majority of the principal officers resubmit their determination of disability, the vice president remains as acting president until Congress “decide[s] the issue.” If Congress within 21 days (measured in various ways) “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.”
For nearly four years, it has seemed exceedingly improbable that Vice President Mike Pence had it in him to work with Cabinet members to remove the man to whom he’s been fiercely loyal. But Wednesday’s terror—against the background of Trump’s incitement and his other untoward postelection behavior—goes beyond anything Pence has seen before (that we yet know of). Events could move him to put the country’s well-being before his subservience to the president. After all, unlike Trump’s actions in the Ukraine affair, his newest actions incited active insurrection.
4. What next?
Invocation of the 25th Amendment and the impeachment route are not mutually exclusive. The vice president and the majority of the principal officers could prevent the president from exercising the powers of his office by activating Section 4, giving Congress time to impeach, convict, and remove the president—and disqualify him from serving in federal office again.
The real benefit of the 25th amendment is its efficiency. The vice president and the principal officers of the executive departments can make their decision free from parliamentary rules and transmit the results to Capitol Hill within minutes—quickly enough (in theory) to stop Trump from trying to derail the proceedings by firing enough principal executive officers that it becomes practically impossible to know who the relevant executive officers are for 25th Amendment purposes, or whether they can exercise authority under the amendment.
This possibility of Trump attempting to preempt a 25th Amendment action against him highlights that the amendment was intended, as Kalt notes, primarily “to provide continuity of power” when a president is truly disabled. It was not intended as a mechanism to remove from power a physically functioning president who simply lacks the capacity of character to perform his oath and who is wielding the powers and platform of the office in historically destructive ways. This and related concerns are why Kalt counsels hesitation against using the 25th Amendment for all but the most extreme situations that do not involve physical impairment.
We are now in that extreme situation. Trump has the hard power to engage in vengeful, destructive acts against the Cabinet and the country that could make things much, much worse. These are uncharted and very dangerous waters.