Update: Although the House approved the resolution to move forward with the 25th amendment, Vice President Mike Pence has dismissed the idea. Pence was given 24 hours to decide whether or not to invoke the amendment to remove Trump from office before impeachment proceedings began. In a letter to House Speaker Nancy Pelosi responding to the suggestion, Pence said that he did not "believe that such a course of action is in the best interest of our Nation or consistent with our Constitution."
This story was originally published on January 7, 2021.
On Wednesday, Trump supporters mobbed the U.S. Capitol in an attempted coup. During the insurrection, members of far-right groups and right-wing extremists breached the building, destroyed property, broke into Speaker Pelosi’s office and stole mail — and mostly walked out free and unscathed. One woman was shot and killed, though very few details around the shooting are currently available. And the mob was incited and egged on by the president himself, both prior to their march to the Capitol and in a video posted to Twitter during the act of terror.
By the end of the night, Congress members had been released from the undisclosed locations where they had been sheltering after an armed standoff at the front door of the House floor earlier in the day. In eerie fashion, Congress returned to session, certifying the election for Joe Biden.
But among the “business as usual” feel of the proceedings, discussions online and on cable news channels began to turn to the 25th Amendment and whether Vice President Mike Pence should invoke it. Nearly 100 members of Congress have now called for Trump's removal, whether through impeachment or the invocation of the 25th Amendment, including Rep. Lucy McBath (D-GA-06), Rep. Barbara Lee (D-CA-13), and Sen. Mazie Hirono (D-HI).
”Let me be very clear: if all we do is accept the certified Electoral College results and go home, we would have failed our country. We must impeach Trump, or have the 25th Amendment execute, or have @realDonaldTrump resign,” tweeted Rep. Ted Lieu (D-CA-33). “Congress cannot just go home like nothing happened.” So what happens if the 25th Amendment is actually invoked?
The 25th Amendment mostly exists to clarify the order of succession, should something happen to the president. For example, if the president dies, resigns, or is otherwise unable to carry out their duties, the 25th Amendment makes clear that the vice president becomes president immediately. It also says that the president can be removed from office if the vice president and the majority of the cabinet determines they are “unable to discharge the powers and duties” of the office. In the case that the president contests this conclusion, Congress can order the president’s removal from office with a two-thirds vote in both the House and the Senate.
But let's be clear: this is probably not what's going to happen next. The invocation and execution of the 25th Amendment is a more difficult process than impeachment. Vice President Pence and a majority of the cabinet would first have to provide a written declaration to the president pro tempore of the Senate (Senator Chuck Grassley) and the speaker of the House (Representative Nancy Pelosi) that President Trump is unable to fulfill his duties as president, which would immediately strip him of the powers of his office and make Pence acting president. And it’s still not that simple.
Trump can send his own declaration to Sen. Grassley and Rep. Pelosi disagreeing with the assertion, which would allow him to resume his duties. Pence and the cabinet would then have up to four days to send yet another declaration repeating their conclusion that Trump is unable to perform his duties which would again allow Pence to take over. Congress would then have 48 hours to assemble and vote within 21 days. If two-thirds of both chambers agree, then Trump would be stripped of his title; if the two-thirds vote fails, Trump resumes the presidency.
If it invoked, it would make it the first time in history that it was used to strip a sitting president of his powers (the other times it has been invoked followed Richard Nixon’s resignation and for temporary periods while other presidents underwent medical procedures).
Given the constraints of the current situation — there are only 13 days left in Trump’s term, Republicans in Congress have shown themselves to be spineless thus far, and Trump just this morning committed to a peaceful transfer of power — execution of the 25th Amendment is unlikely to be successful. After telling violent domestic terrorists that broke into the Capitol that he "loves" them, Trump made a statement (not via Twitter, because he has been temporarily locked out of his account) saying: “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."
While the 25th amendment will likely not be invoked, calls for impeachment are still loud, and, if that fails, we only have less than two weeks before a new president is installed.