DANIEL VAUGHAN: Donald Trump Will Not Be Removed By The 25th Amendment

January 8, 2018

The 25th Amendment is the latest fad from Democrats in Congress. Spurred by the recent book release of Fire and Fury, Michael Wolff’s salacious accounts of his interviews in the White House, Democrats are pouncing on the latest opportunity to remove President Donald Trump from office.

Democrats have advanced three arguments of removal: 1) The Emoluments Clause, 2) The Russia Probe, and 3) The 25th Amendment. Regardless the merits of other theories, one thing is clear: the 25th Amendment will not remove Donald Trump.

The 25th Amendment theory is the most far-fetched attempt Democrats have advanced to remove Trump. The argument has gained forward momentum because so little is known about it, making fantasy resemble the truth.

But it’s time to set the record straight.

The 25th is one of the newest amendments. It was passed by Congress in 1965 and fully ratified by the states in 1967. The assassination of John F. Kennedy in 1963 was the impetus for Congress to clear up ambiguities on succession in the original text of the constitution.

Article II, Section I, Clause 6 of Constitution deals with removal, death, or incapacitation. 1841 was the first time it was invoked, after the death of William Harrison. However, it was unclear whether the vice president becomes president, or is a mere “acting president,” a place-holder. At the time, the vice president was sworn in as president, but the controversy was never fully clarified.

Article II also doesn’t explain what constitutes “incapacitation,” or what to do about it. This situation came up with President Woodrow Wilson, who had a series of strokes in 1919 which ultimately paralyzed him. The strokes happened while he was trying to convince Congress to ratify the Treaty of Versailles, to end World War I. Unbeknownst to nearly all, his wife and doctor helped him run the presidency until he recovered.

Finally, the Kennedy assassination made it apparent that the vice president needed his own successor. Lyndon B. Johnson had a history of heart attacks going back to 1955, which made Congress nervous when he took over for Kennedy. But no procedure existed to give him a successor.

Those problems bring us to the solution, the 25th Amendment. It’s split into four clauses and partially supersedes Article I, Section II, Clause 6. Each provision solves a specific succession dilemma.

The first clause says that if the president is removed or dies in office, the vice president becomes president. The vice president isn’t just an “acting president,” he fully assumes the office and serves the remainder of the term.

The second clause allows the president to fill a vacant vice president position through a nomination and a vote from Congress. While it covers a host of scenarios, the specific situation it addresses regards when the vice president becomes president and needs his own vice president to ensure a continuous succession.

The third clause covers situations where the president knows he is or will be incapacitated in some way and wants no gaps in presidential authority. The president submits a letter to the speaker of the House and speaker pro tempore of the Senate saying the vice president is the acting president until a message is sent ending the arrangement. This happened in 2007, when President George W. Bush had a routine colonoscopy and was under anesthesia for the procedure. Vice President Dick Cheney was acting president during the operation, and afterward, things returned to normal.

The fourth and final clause is the one with which the Democrats are focused. Here, the 25th provides that if 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,” can team up and say the president is incapable of “discharging the powers and duties of his office.” If this happens, the vice president immediately becomes acting president.

However, the president can challenge this statement, write his own letter, and reclaim his office and powers. If the vice president and Congress persist, they can force the president out by voting with a two-thirds majority in both the House and Senate. If they succeed in the vote, the vice president becomes acting president. If they fail, the president continues.

With this system, there are multiple issues that Democrats are ignoring. First, the vice president and some undetermined majority of the cabinet or agency heads have to turn against the president. Aside from the obvious fact that there are no visible signs of that in Washington, we also don’t know what legally constitutes a “majority” of appropriate agencies.

Second, there is nothing close to two-thirds of the House or Senate willing to vote on this matter.

Finally, the Constitution is vague on what constitutes “incapacitated.” Drafters designed the clauses for the extreme cases: situations of death, coma, or some other condition where the president is unable to perform his office.

Woodrow Wilson, as previously mentioned, performed his duties while paralyzed from multiple strokes. He continued his duties. The best evidence Democrats have on Trump is that he sends terrible tweets.

Mean tweets, salacious books, and mercenary medical experts testifying via partisan invitation aren’t enough to trigger the 25th Amendment.

The secret belief among Democrats is that if they can force this issue, that would make Vice President Mike Pence the acting president, and he’d be forced to call a special presidential election. This scenario would give Democrats a chance to replace Trump with Hillary Clinton.

But this situation also isn’t clear, because no text or precedence says an acting president must call a special election. What most likely happens in this extremely unlikely scenario is the acting president just serves out the term.

Forcing Trump out via the 25th Amendment is a fantasy. Democrats don’t have the medical evidence, votes in Congress, or the law on their side.

Trump’s tweets aren’t a Constitutional crisis, but trying to oust Trump on the faux-medical opinion of a doctor pushing a book she wrote is a crisis. It’s time for Democrats to stop fantasizing and return to reality.


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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.