Impeachment requires an investigation by a House committee
There's no requirement of a crime to be committed to invoke the 25th Amendment
Let’s start out with the caveat that President Donald Trump’s Republicans control the entire federal government, so none of this is going to happen short of a mass rebellion against the President by his own party. Until that happens, the following is a purely academic discussion. But it is completely fascinating.
With that out of the way…
The fabulous Googlers of the Washington press corps and political class were searching for the 25th Amendment this week after reading an anonymously sourced piece by Gabe Sherman in Vanity Fair that was sensationally headlined: “‘I hate everyone in the White House!’ Trump seethes as advisers fear the President is ‘unraveling’”.
The piece begins with mention of Tennessee Republican Sen. Bob Corker’s broadside warning of his fear that Trump could march the country into World War III, comments he made to The New York Times, and that some of the members of Trump’s national security team were essentially “adult day care.” Sherman’s piece ends with the anonymously sourced description of an exchange between Trump and strategist Steve Bannon, who has since been fired from the White House, although the two are thought to remain politically simpatico. Here’s that portion:
“Even before Corker’s remarks, some West Wing advisers were worried that Trump’s behavior could cause the Cabinet to take extraordinary Constitutional measures to remove him from office. Several months ago, according to two sources with knowledge of the conversation, former chief strategist Steve Bannon told Trump that the risk to his presidency wasn’t impeachment, but the 25th Amendment – the provision by which a majority of the Cabinet can vote to remove the president. When Bannon mentioned the 25th Amendment, Trump said, “What’s that?” According to a source, Bannon has told people he thinks Trump has only a 30 percent chance of making it the full term.”
Again, that’s anonymously sourced material and it hasn’t been verified by CNN.
But how intriguing! For either people who are worried about efforts to remove the President from office or those who’d love to see him leave, it’s worth knowing the facts. There are plenty of scholarly articles on the 25th Amendment. This one from Brookings describes the process as “more difficult” than impeachment.
Impeachment requires an investigation by a House committee of “high crimes and misdemeanors,” a vote in the House, a trial in the Senate and a super majority vote there in order to remove a President from office.
There’s no requirement of a crime to be committed to invoke the 25th Amendment. Rather, the President’s colleagues must simply deem him unable to do his job with a simple vote by the Cabinet and vice president. The Vanity Fair story, by the way, was released on the same day that Rep. Al Green introduced an impeachment resolution in the House (which has zero chance of passing). Regardless, the story sparked an immediate discussion of the 25th Amendment, which was enacted in 1967 in the years after the Kennedy assassination and clarifies presidential and vice presidential succession.
Three of its sections have been invoked. Section 1, in 1973 when Richard Nixon left office and Gerald Ford became President. Section 2, when Gerald Ford used it to bring Nelson Rockefeller on as his Vice President. Section 3, periodically when the President undergoes a medical procedure.
But the final section, Section IV, contains provisions for a dire emergency. Here’s that portion in full:
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.
Putting that into plainer English, the Vice President and a majority of the Cabinet (or some other body determined by Congress), can tell the leaders of the House and Senate the President is unfit for duty and the vice president – in this case Mike Pence – takes over. The President can disagree with them, sure, and try to get his powers back.
But if a majority of the Cabinet (or some other body determined by Congress) stays strong and says he’s unfit to do the job, then it’s up to Congress. Super majorities would have to ratify the suggestion of the Cabinet and vice president, who at that point would be acting president, or else the President would take back over.
It seems hard to believe that two-thirds of both chambers, which are controlled by Republicans, would vote to depose the Republican President, but by even considering this 25th Amendment option we’re so far into a maze of hypotheticals, why not just go with it?
Imagine the US being in such straits that Pence, in the role of Brutus here, organizes this mutiny and that all these people Trump appointed join forces against him. Anti-Trump Republican super majorities don’t seem so crazy in that very unlikely light.
The 25th Amendment option is a paranoid conspiracy theory extraordinaire that puts the notion of a deep state – a favorite of Bannon’s – to shame. In this case, the Deep State is Trump’s own Cabinet.
On the other hand, Trump has used some very tough love on some of his Cabinet secretaries of late. He said he regretted picking Attorney General Jeff Sessions, challenged Secretary of State Rex Tillerson to an IQ test after reports that Tillerson called him a moron. Then said he was kidding!
Just for kicks, here’s the full list of 24 Cabinet officials, with two acting heads at HHS (Tom Price was pushed out) and DHS (John Kelly became his chief of staff after Reince Priebus was fired):
Vice President Michael R. Pence
Secretary of State Rex W. Tillerson
Secretary of the Treasury Steven T. Mnuchin
Secretary of Defense James Mattis
Attorney General Jeff Sessions
Secretary of the Interior Ryan Zinke
Secretary of Agriculture Sonny Perdue
Secretary of Commerce Wilbur L. Ross, Jr.
Secretary of Labor Alexander Acosta
Secretary of Housing and Urban Development Benjamin S. Carson, Sr.
Secretary of Transportation Elaine L. Chao
Secretary of Energy James Richard Perry
Secretary of Education Elisabeth Prince DeVos
Secretary of Veterans Affairs David J. Shulkin
Acting Secretary of Homeland Security Elaine Duke
Acting Secretary of Health and Human Services Don J. Wright
White House Chief of Staff John F. Kelly
US Trade Representative Robert Lighthizer
Director of National Intelligence Daniel Coats
Representative of the United States to the United Nations Nikki Haley
Director of the Office of Management and Budget Mick Mulvaney
Director of the Central Intelligence Agency Mike Pompeo
Administrator of the Environmental Protection Agency Scott Pruitt
Administrator of the Small Business Administration Linda E. McMahon
There are plenty of organizations and lawmakers on both sides of the aisle who have raised questions about Trump’s fitness to perform his duties.
The New York Times editorial board, as one example, called on Congress Thursday to pass legislation that would denude him of the ability to launch a unilateral nuclear strike. And it’s on this issue – a nuclear strike, perhaps – that you could see the Cabinet actually moving to remove Trump from office, even if only temporarily.