AUSTIN (KXAN) — A growing number of lawmakers, including many Democrats, are calling for President Trump’s removal by invoking the 25th Amendment.
This comes after a pro-Trump mob rioted, broke into the U.S. Capitol Wednesday, forced leaders to seek shelter and delay the counting of Electoral College votes. Five people died, including a Capitol police officer protecting the building. A federal investigation has now been launched into the homicide of Officer Brian Sicknick.
Because the 25th Amendment is coming up so much in conversation right now, it’s important to explain how it works and what provisions it includes if it is indeed invoked.
Professor Sanford Levinson joined digital anchor Will DuPree for a live-streamed conversation Friday afternoon about the amendment. Levinson specializes in constitutional law at the University of Texas at Austin School of Law and also teaches government at UT.
The 25th Amendment was proposed after the assassination of President John F. Kennedy. It outlines the procedures for replacing the president or vice president in the event of death, removal, resignation or incapacitation. The provision of the amendment that many are bringing up now in relation to President Trump is the fourth section, Levinson explained.
“The other three simply say that if the president dies or otherwise creates a vacancy, the vice president becomes president,” he said. “It also allows a way by which a president can voluntarily transfer duties to the vice president, and this has happened for example when presidents have minor surgery.”
However, Levinson pointed out Section Four, which is detailed more specifically below, goes into uncharted territory because it in particular has never been invoked to remove a president.
“Nobody really and truly knows how Section Four would work,” he said, “because it does contemplate the possibility of what, for a lack of a better term, can be called a palace revolt of the president’s vice president and Cabinet against the president him or herself.”
However, Levinson explained how that process may work if the vice president and Cabinet members moved to invoke the 25th Amendment. He said they would have to agree the president “is unable to discharge the powers and duties of his office,” according to the language in the Constitution.
“Let’s assume that we get through that hurdle, and we agree that ‘unable to discharge’ means that you’re scared stiff that the president is basically, to use a highly scientific word, bonkers, in that you’re just not willing to trust the decisions that he might make,” Levinson said. “Then the question becomes, okay, what do you need in order to declare that the president is unfit?”
Possibility of invocation
Given all of those legal, linguistic caveats, Levinson addressed the pressing question of how likely it would actually be to remove President Trump by invocation of the 25th Amendment.
“The real question you’re asking — and it is quite literally the question of the hour — is whether one can imagine this being applied to Donald J. Trump in the next 12 days, and the honest answer is your guess is as good as mine,” he said.
“I will say that the answer is zero chance if Mike Pence doesn’t agree to lead the revolt. So long as he remains lap-dog loyal to Donald Trump, then we’re simply spinning castles in the air. It simply will not take place.”
The amendment was applied during the Watergate scandal in the 1970s. It helped with the process of replacing Spiro Agnew as vice president. It also went into play when Richard Nixon resigned.
The provisions in the 25th Amendment
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
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.