For much of President Trump’s tumultuous term, the 25th Amendment has loomed over him. While the amendment broadly deals with presidential succession, it contains one key section that outlines a formal process by which the vice-president and the majority of sitting Cabinet members could deem the president “unable to discharge the powers and duties of his office,” in which case, Vice-President Pence could become acting President Pence. Though this specific section has never before been invoked, the prospect has certainly been appealing to members of the public — and even, reportedly, some Trump officials — during particularly erratic periods of the president’s term.
Following the mayhem that unfolded yesterday at the U.S. Capitol, when belligerent Trump supporters violently forced their way into the government building, calls to invoke the 25th Amendment are yet again mounting. A growing chorus of elected officials, including Nancy Pelosi and Chuck Schumer, has publicly called on Vice-President Pence to take action, and some cabinet secretaries have reportedly been discussing the option. (Meanwhile, as an alternate method for ejecting Trump from office, Minnesota representative Ilhan Omar has drawn up new articles of impeachment.)
But, with less than two weeks remaining in the president’s term, and considering the loyalty of Vice-President Pence and his Cabinet members, who have remained by Trump’s side for nearly four years, will these calls amount to anything? To better understand the situation, we spoke with Loyola Law School professor Jessica Levinson, who focuses on election law and governance issues. This interview has been lightly condensed and edited.
To start: What does the 25th Amendment broadly deal with? What are the circumstances that lead to its ratification?
The 25th Amendment was partly created in the wake of John F. Kennedy Jr.’s assassination. It basically creates a succession plan and says, Don’t worry, America, somebody will be in charge. We have a plan for everything. The more common aspects of the 25th Amendment really deal with voluntary removal. For example, a president who says on his own, “I’m going under general anesthesia, so I need the vice-president to become acting president.”
And what about Section Four?
That’s the part of the 25th Amendment that we’ve never used in our country, which is about involuntary removal. Constitutionally, that is truly a nuclear option. It’s designed to recognize that there might be circumstances where the president is unable to discharge the powers and duties of his office. Now, there aren’t a lot of clear lines of guidance for when you meet the standard to take action. It’s a little bit messy in terms of which people get to make that determination. There’s not a doctor or a psychiatrist; it’s all political actors.
What would this process look like?
It starts with the vice-president, who needs the support of a majority of the 16-member Cabinet. Then, they tell the president pro tempore of the Senate and the Speaker of the House, “Hey, we have a president who’s unable to discharge the powers and duties of his office.” At this point, the vice-president would immediately assume the powers and duties of the presidency. But, as I think you already know, the president can say, “No, not so fast. I’m just fine.” Then, in this case, he would have to transmit this in writing to the president pro tem and to the Speaker of the House.
Then, Congress comes in. If they’re out of session, Congress has to assemble within 48 hours, or if they’re in session, they then have to take up the issue. And so then, within 21 days (or 23 days if they’re out of session), Congress has to vote by two thirds of both houses to remove the president from office. As you can see, even though we’ve never used it before, this process is terribly messy. We have no black-and-white standards, and it can continue on and on and on.
Once the then-removed president appeals, does he then become president again?
I think the best reading of the 25th Amendment is that once the vice-president gets the necessary support and goes to the House and Senate, they’re the acting president, even during the time of determination.
In the aftermath of the riot at the Capitol, many elected officials are demanding Pence to invoke the 25th Amendment. But then, we have some representatives who are talking about impeachment. This afternoon, Nancy Pelosi threatened Pence that if he didn’t listen to Democrats’ calls, Congress would move forward with impeachment. What do you think of these differing approaches?
Well, first of all, impeachment has different standards — it has to happen in a situation of a high crime or misdemeanor. Also, you can be impeached but still stay in office — which, of course, we’ve all seen. In a lot of ways, impeaching the president when he only has 13 days left in his term could be symbolic. Also, part of the consequences of impeachment can be that you’re prohibited from holding high office, so it could be more than symbolic — it could cut off any of Trump’s future attempts to either run for office or raise the money to run for office. But to get a supermajority vote from the Senate right now, which is necessary for impeachment, you would still need 17 GOP senators to support it.
Based on what we know of Pence and the remaining members of Trump’s Cabinet, do you think we’ll see Section Four the 25th Amendment be invoked for the very first time?
No, this is the proverbial red balloon. This is not lifting off. But I think it’s stunning that we’re having this discussion at all. There’ve been so many moments where many of us have wondered, Is this the tipping point? Will Republicans abandon the president? And the answer, over and over again, is no. If you looked at the vote last night, and the electoral college vote count, there are still Republicans who are staying with the president, who are peddling these lies and falsehoods and conspiracy theories.
I can’t see this getting off the ground for a couple of reasons: Trump has his loyalists, there’s not that much time left in his term, and that those whose support would be needed know that it’s just too late to try and wash the Trump stain off. You know, you don’t get to absolve yourself of four years at this point, which I think would probably be a part of the political calculation.
So what do you think about the elected officials calling for Pence to consider the 25th, or even the articles of impeachment that the House is drawing up? Is that political theater?
I think this is a totally appropriate time to talk about impeachment and the 25th Amendment. Again, I don’t think it’ll happen, but I think there’s something to be said for telling Americans about a constitutional provision when it’s applicable, even when the political will isn’t present. Maybe this is political theater for some, and clearly I think everyone knows this is an uphill climb, but they want to be able to say, “I did absolutely everything to get this man out of power.”
So what do you see happening over the new two or so weeks? For example, do you foresee Republicans instead directing their energy toward watching over Trump to ensure he doesn’t, say, incite violence?
I think that’s exactly what we’ll see. I think that they’ll exert enormous political pressure on the president to basically just go golfing and do no harm. Again, there have been so many moments where Republicans could have even lightly rebuked the president, and there was just deafening silence, so I’m not sure that they want to pull the cord.