The Return of the 25th Amendment Debate

T he New York Times has a report following up on remarks by January 6 committee vice chair Liz Cheney (R., Wyo.) describing discussions among Trump administration officials about potentially removing the then-president in the aftermath of the Capitol riot. Representative Cheney made the remarks in her summary narrative about what the committee plans to cover in a half-dozen or so hearings this month. The discussions among Trump officials she pointed to centered on the 25th Amendment to the Constitution.

These discussions are said to have involved Secretary of State Mike Pompeo, Treasury secretary Steve Mnuchin, Labor secretary Eugene Scalia, Education secretary Betsy DeVos, and Vice President Mike Pence, among others. Their relevance to the committee is that the Capitol riot, and the events leading up to it — the irresponsible “stop the steal” initiative, culminating in President Trump’s fiery speech on the Ellipse, the immediate prelude to the uprising — created such anxiety among top officials about the state of the administration and the manner in which Trump was wielding his powers that the specter of removing him was raised.

That is germane, to be sure. Still, it is odd that the Times report omits any explanation of what the 25th Amendment precisely addresses – i.e., why it was not a good fit for the situation that obtained. Reporters Maggie Haberman and Michael S. Schmidt explain that “the possibility of invoking the 25th Amendment, which would have required the vice president and the majority of the cabinet to agree that the president could no longer fulfill his duties to begin a complex process of removal from office,” was raised. Pence, however, made it clear that he would not support invocation.

As I discussed here at the time, the possibility of resorting to the amendment was rightly rejected. It was not a matter of the vice president and the cabinet convincing themselves that there was no cause to consider removing Trump. The dispositive issue was that the 25th Amendment applies to presidential disability, not presidential misconduct. The amendment is not a substitute for the Constitution’s impeachment process.

Trump did not have a physical or mental disability that, from a medical standpoint, rendered him unable to perform the duties of the presidency. That is the only legitimate basis for invoking the 25th Amendment. If the claim is that the president is unfit for office due to misconduct, the remedy is to remove the president via impeachment.

That can only be done by Congress — the Constitution gives the House sole power to determine whether there have been high crimes and misdemeanors that would warrant the president’s removal. If the House decides there are such grounds, and votes for one or more articles of impeachment, the Senate has the sole power to conduct an impeachment trial, which, in the event of conviction, can result in a president’s removal from office and disqualification from holding future office. The vice president and the cabinet have no role in impeachment.

Congressional investigations are supposed to have a legislative purpose. One thing that became obvious in the aftermath of the Capitol riot is that there are major practical problems with impeaching a president who is about to leave office. Congress should grapple with that.

I believe that if presidential conduct were sufficiently grave, impeachment and removal could be accomplished in a few hours. Right after the Capitol riot, I cited the legendary Justice Robert Jackson’s sage observation that the Constitution is not a suicide pact. If a threat to national security were so grave that a corrupt president needed to be removed forthwith, it could be done. It is not hard to imagine an exigency that would cause us to conclude that it would be intolerable to retain a president in office even for a few hours — e.g. we suddenly discover a president really is a clandestine agent of a foreign government; or an imminent attack on the United States is obvious but the president refuses to take action.

Still, expeditious removal is no sure thing. Because impeachment is such a severe measure, it is reasonably argued that the House needs time to investigate misconduct allegations before leaping to impeachment articles. Further, if it comes to a Senate trial, a proceeding is only worthy of the name “trial” if it affords the accused reasonable notice and an opportunity to be heard, as well as to confront witnesses. That, too, takes time.

As we’ve seen, moreover, when it gets late in a president’s term, impeachment runs up against the claim that the Constitution does not permit a Senate trial for a former president. I believe that claim is wrong, but it is not frivolous. It is supported by a number of legal scholars, and it became the rationale for many Republican senators to vote for Trump’s acquittal even though they believed he might be guilty of an impeachable offense.

One of the most useful things a congressional committee could do is address this dilemma.

Could we design a procedure that would both pass constitutional muster and enable the cabinet and/or Congress to suspend the president forthwith on suspicion of high crimes and misdemeanors, with the proviso that impeachment proceedings would begin reasonably promptly? Could we make the burden for triggering this suspension high enough that it would not be invoked for partisan reasons or in the absence of a true emergency, yet not so high that invoking it in a true emergency would be impractical? And could this be done by legislation, or would a constitutional amendment be necessary?

Because the January 6 committee is not sufficiently bipartisan and because its work is so politically fraught, it is not the right congressional vehicle for addressing these questions. But they should be addressed. If they are not, it is only a matter of time before the next crisis in which well-meaning people have no alternative but to consider invoking the 25th Amendment under circumstances where it does not apply because the crisis involves executive abuse of power rather than medical incapacity.