It’s nothing less than a nuclear option.
But as a shocked nation looked on as armed protestors stormed the nation’s capital on Wednesday afternoon, there was talk of removing him from office as the president continued to insist that the had been “stolen”from him.
And some called for him to be stopped through the 25th Amendment to the Constitution.
Among them were Rep. Ted Liu, the California Democrat, who tweeted out: “Dear @VP @Mike_Pence: You need to start the 25th Amendment. @realDonaldTrump is detached from reality.”
The 25th Amendment says that if the president becomes unable to do his job, the vice president becomes the president. The amendment was invoked when both Presidents Ronald Reagan and George W. Bush underwent medical procedures, temporarily transferring power to their vice presidents. But it also has a mechanism, known as Section Four, which can remove the president immediately if the vice-president and the majority of the cabinet decide that the president has become “unfit to carry out the powers and duties of the office.”
By transmitting a letter to Congress, the vice-president then becomes the acting president and remains so unless and until Congress takes action refusing to allow that transfer of power to stand.
Authorities stand guard outside the U.S. Capitol after supporters of President Donald Trump gathered Wednesday.AP
The forced removal of a president through Section Four has never been employed, although it was discussed by pundits early in the Trump presidency. And despite the outrage over Wednesday’s confrontation in the halls of Congress, legal experts said the 25th Amendment was not likely to be triggered, nor would it be successful if it was.
“Invocation of the amendment’s removal provision, however justified, seems impracticable given the process outlined in the amendment,” said former New Jersey Attorney General John Farmer Jr., who now serves as director of the Eagleton Institute of Politics at Rutgers University.
Farmer pointed out the amendment allows the president to immediately undo the action by transmitting a written declaration that no inability exists. He then resumes office — unless the vice president and majority of the cabinet transmit to the congress their written declaration that the president is unable to discharge the powers and duties of his office.
After that, Congress is to convene within 48 hours and must decide within 21 days by two-thirds vote that he is unable to carry out his duties.
“Bottom line,” concluded Farmer, “as a practical matter I don’t think it’s achievable within the time remaining in Trump’s term and I doubt it would muster the necessary levels of support in his cabinet or Congress to remove him.”
Ronald Chen, a Rutgers University law professor who served as co-dean of Rutgers Law School and the former New Jersey Public Advocate, said not only would it take the vice president and a majority of confirmed members of the cabinet to certify that the president was unable to discharge his duties, but only confirmed members of the cabinet would count — not the acting Secretary of Defense.
“Whether Pence, even if willing, could get in touch with a majority of the cabinet is a big question mark,” Chen said. “Plus, if Trump got wind of it, he can instantly dismiss all members of the cabinet except Pence himself, so it would have to be done quickly. As a practical matter, I don’t think it’s a viable option.
Elie Honig, a former federal prosecutor who headed the state’s Division of Criminal Justice, also agreed the 25th amendment was not the solution.
“Even if the VP could garner a majority of cabinet officers — which seems very unlikely — the president can declare himself to be competent, which allows him to re-take power.”
However, Honig said the House “absolutely can — and I believe should — impeach the president,” and the Senate can convict and remove him.
“This is an unprecedented abuse and misuse of power and Trump cannot be trusted to remain in office even for the next two weeks,” Honig said.
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Ted Sherman may be reached at tsherman@njadvancemedia.com. Follow him on Twitter @TedShermanSL.
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