Using the 25th Amendment or impeaching Trump: Could they happen? | PolitiFact

Impeachment would face some practical challenges.
Speaker of the House Nancy Pelosi, D-Calif., and Vice President Mike Pence officiate as a joint session of the House and Senate convenes to confirm the Electoral College votes cast in November's election, at the Capitol in Washington on Wednesday.
Speaker of the House Nancy Pelosi, D-Calif., and Vice President Mike Pence officiate as a joint session of the House and Senate convenes to confirm the Electoral College votes cast in November's election, at the Capitol in Washington on Wednesday. [ J. SCOTT APPLEWHITE | AP ]
Published Jan. 8, 2021|Updated Jan. 11, 2021

Editor’s note: On Jan. 11, Democrats were set to introduce impeachment legislation on a single charge of “incitement of insurrection.” Here’s the latest.

President Donald Trump has only a dozen days left in office. But after his supporters stormed the Capitol on Wednesday calls to oust him prior to Joe Biden’s inauguration have multiplied — and reached the top levels of government.

Sen. Chuck Schumer, the New York Democrat who is poised to become the chamber’s majority leader after Biden’s inauguration, released a statement the day after the Capitol was breached. “This president should not hold office one day longer,” he said. “The quickest and most effective way — it can be done today — to remove this president from office would be for the vice president to immediately invoke the 25th Amendment. If the vice president and the Cabinet refuse to stand up, Congress should reconvene to impeach the president.”

Within hours, House Speaker Nancy Pelosi, D-Calif., joined Schumer’s call.

“I join the Senate Democratic leader in calling on the vice president to remove this president by immediately invoking the 25th Amendment,” she said. “If the vice president and Cabinet do not act, the Congress may be prepared to move forward with impeachment. That is the overwhelming sentiment of my caucus, and the American people, by the way.”

But how realistic would it be to remove Trump from office either by invoking the 25th Amendment — a constitutional process for ousting a president deemed unfit to serve — or through the impeachment process?

Legal experts told PolitiFact that implementing the 25th Amendment process would be feasible, even in the short window of time left in Trump’s term. However, it would require cooperation from Trump administration officials, which may not be forthcoming.

Impeachment (it would be Trump’s second impeachment) would be the opposite. Impeachment would face some practical challenges, but it could be done without the consent of anyone in Trump’s administration.

Here’s a rundown of each method and what obstacles would make their implementation challenging.

What is the 25th amendment?

The 25th Amendment was established in 1967 after the assassination of President John F. Kennedy. It spelled out general procedures to guide the replacement of a president or vice president in the event of death, incapacitation, resignation or removal from office.

A portion of the amendment authorizes the vice president and a majority of the Cabinet to declare a president “unable to discharge the powers and duties of his office.” (It also allows this power to be delegated by Congress to an outside body, but Congress has never created such a body.)

Specifically, the amendment says that if the vice president and a majority of the Cabinet declare that the president can no longer carry out his duties, the vice president would become the acting president.

The president could seek to restore his or her powers by declaring that no inability exists, but that can be blocked by a reassertion, within four days, of the initial claim by the vice president and a majority of the cabinet.

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At that point, Congress would have 21 days to decide who should exercise presidential powers — the president or the vice president. Because it’s so late in the presidential term, Congress wouldn’t have to do anything beyond running out the clock. The vice president would continue to serve as acting president through Jan. 20, at which point Biden would be sworn in.

Here’s a flowchart explaining the amendment, from “Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment,” by Brian Kalt, a law professor at Michigan State University.

Is invoking the 25th Amendment plausible?

Several experts on the provision agreed that invoking the 25th is plausible before Inauguration Day.

Michael J. Gerhardt, a University of North Carolina law professor, said that “it requires no more than a meeting of the vice president and the Cabinet, and that meeting could be long or short, depending on what they discuss.”

Hugh Spitzer, a law professor at the University of Washington, agreed. “All it takes is about eight or nine signatures,” he said. “That declaration could probably take just 24 hours to put together.”

In fact, due to the ability of Congress to run out the clock without acting, “too little time is not a disadvantage here,” Kalt told PolitiFact. “If anything, it makes it easier to pull it off.”

The challenges would come in persuading Vice President Mike Pence and a majority of the Cabinet to actually sign on. (Joel K. Goldstein, a professor of law emeritus at Saint Louis University, said that the heads of the 15 executive departments listed in 5 U.S.C. 101 comprise the Cabinet, though there is some haziness about whether acting heads count.)

“The primary obstacle is the willingness of Trump’s friends and fellow Republicans to take an action they think might hurt them with the party and undermine their chances to return to power,” Gerhardt said.

So why would Pence agree to this course? James Robenalt, a lawyer with expertise in political crises, and John Dean, President Richard Nixon’s former White House counsel, told PolitiFact that the most important reason would be “if they perceive that Trump intends to continue to incite insurrection, which could become armed insurrection. That threat, or the threat he might use military force at home or abroad as a pretext to stay in power, could cause them to act.”

The second possible reason, they said, “would be if there is serious concern that Trump might pardon those who engaged in insurrection yesterday, or himself, or both.”

“Those kinds of pardons would be unacceptable to the American people, but difficult to litigate in the courts because the pardon power is so broad and unlimited,” they said by email. “They might see the need to take power from him to avoid deep damage such pardons would cause the Republican party in the future.”

Neither chamber is scheduled to be in regular session until just before Inauguration Day. However, they could call themselves back into session quickly to consider impeachment.

Would impeachment be a feasible alternative?

There is not enough time left in Trump’s term to do a traditional impeachment process like the nation saw in 2019 and 2020.

“The window is too narrow at this point, no matter how straight-forward the facts may seem,” said Donald R. Wolfensberger, director of the Congress Project at the Woodrow Wilson International Center for Scholars.

However, there’s a way around this: a supercharged process.

Frank O. Bowman III, law professor at the University of Missouri, said “it’s constitutionally and procedurally possible.” There’s precedent: The House impeached President Andrew Johnson after the Civil War three days after his firing of the Secretary of War, which spurred the impeachment.

“Everything could happen in hours and days,” said Stephen M. Griffin, a Tulane University law professor. “The House of Representatives is built to act quickly.”

On the Senate side, the rules currently prescribe a more formal process for removal following an impeachment. “But a determined supermajority could change that in a morning,” Bowman said. In other words, if two-thirds of the senators were ready to convict Trump and remove him from office, they could overcome other procedural obstacles quickly.

The key factor holding the chambers back might be political.

For starters, “it seems it would be nearly impossible to get two-thirds for removal, given the deep political divides and the practical argument that this is unnecessary given how soon the president’s term will end,” Robenalt and Dean said.

While Senate Majority Leader Mitch McConnell, R-Ky., spoke forcefully against members of his own conference who objected to counting Biden’s electoral votes for Arizona and Pennsylvania, forcing his fellow Republicans to take another tough vote could carry costs. “He’s not going to force his members to take an excruciating vote on impeachment,” Bowman said.

Trump’s reaction could also make impeachment a limited victory.

“It could just play into Trump’s portraying himself as a victim, and most Americans might just want to move on,” Gerhardt said. In addition, he said, “deviating from the process used last year would raise questions about the legitimacy of what the House is doing.”

Finally, a feeding frenzy over impeachment could overshadow the peaceful transfer of power to Biden.

“It would be a media circus and another sure-fire mob-magnet,” Wolfensberger said.

• • •

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