The 25th Amendment Fantasy

The zombie idea for ousting an erratic and dangerous President.

Given that he has demonstrated mental instability since the earliest days of his administration, calls for invoking the 25th Amendment to oust President Trump have been with us for nearly four years. I joined those calls last May. Speaker of the House Nancy Pelosi called for setting up a special commission a month before the election.

With pardons flying and rumors of coup plotting taking place inside the White House, Paul Campos argues that Vice President Mike “Pence Should Remove Trump From Office on Sunday.”

Members of the administration reportedly discussed the possibility of invoking the amendment in the early days of Trump’s presidency, but that possibility has been dismissed as purely theoretical, especially given one obvious problem: To do so, two-thirds of each house of Congress would have to vote to allow the vice-president to continue in the position of acting president. But as we reach the final days of the Trump presidency, this obstacle is about to be removed. The mechanics of the amendment allow the vice-president to remain in the position of acting president for a minimum of 25 days, as long as a simple majority of at least one chamber of Congress is willing to cooperate.

It may seem extremely unlikely that Mike Pence, who up to this point has been one of Trump’s most craven enablers, would even consider taking advantage of this constitutional power. But it’s always possible that, between now and January 20 when Trump’s term expires, the situation may become so extreme that he and eight other Cabinet members may find the modicum of personal courage and moral decency necessary to do the right thing.

Trump would put up a fight, but it wouldn’t matter this late in his presidency. Once Pence has transmitted the letter to Congress that makes him acting president, Trump may contest the vice-president’s actions via a letter of his own. Section Four, however, would give Pence four days to respond to this letter. After Pence did so, the Democrat-controlled House of Representatives could — by simple majority vote — decline to act on the substantive dispute for the remaining 21 days. (Meanwhile, Democrats could filibuster any action in the Senate.) Were it not the end of his term, Trump would return to office after 21 days if Congress failed to act.

This, in effect, means that Pence could become acting president on Sunday, December 27, and would remain in the position for the rest of the current administration’s term in office, as long as House Democrats acceded to the new status quo. For the good of the nation, he should do so this weekend.

Aside from being pure fantasy, this is a bad idea all around. Joe Biden will be the 46th President come noon January 20, notwithstanding Trump’s ravings and plotting. Given the political climate that he has created, Pence’s move to oust Trump would be seen as a coup, simply adding fuel to the fire that the whole system is rigged against Trump and his supporters.

Yes, it would be perfectly legal. It’s almost certainly justified. But, at this late stage, it would do more harm than good even if Pence and company somehow developed spines.

FILED UNDER: Donald Trump, Law and the Courts, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. PJ says:

    But, at this late stage, it would do more harm than good even if Pence and company somehow developed spines.

    That entirely depends on what Trump will do between now and Jan 20.

    If he decides to nuke Teheran?
    If he decides to sell state secrets to Russia?
    If he decides to try a coup?

    The people who are so far gone that they would believe that Pence is part of the Deep State(tm) are already lost.

    Edit: Looks like I won the lottery, an edit button appeared! 😉
    Edit2: Not a button, a link.
    Edit3: A good edit link should not be wasted, it should be cherished and used.
    Edit4: Merry Christmas to everyone!

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  2. James Joyner says:

    @PJ:

    If he decides to nuke Teheran?

    There wouldn’t be time to use the 25th Amendment process. It would take a de facto coup.

    If he decides to sell state secrets to Russia?

    I doubt Pence and company would know in time to stop him.

    If he decides to try a coup?

    He may well have already tried and failed. He can’t do it by himself.

    We’re in a terrible situation. The office is simply too powerful, predicated on it being held by honorable men.

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  3. Kathy says:

    I may be talking well beyond my knowledge, but I have the impression that absent a clear and present nuclear attack on the US, launch authorization for nukes requires at least two people from a select list.

    So Crazy Donnie would need to find a second crazy enabler, and nukes are a bit damn much even for the wannabe mafiosi the King of the Covidiots surrounds himself with.

    Besides, what’s the profit in nuking Iran?

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  4. James Joyner says:

    @Kathy: There’s no meaningful check. If SECDEF refuses the order, Trump fires him and moves on to the next guy until someone agrees.

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  5. OzarkHillbilly says:

    it would do more harm than good

    What harm do you see it causing James? They already think “the whole system is rigged against Trump and his supporters,” and that his electoral loss is a coup.

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  6. Kathy says:

    @James Joyner:

    If something in the universe need a good safeguard, then preventing the use of nukes on a whim has to be it.

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  7. Michael Reynolds says:

    Imagine Hitler in his bunker. He’s moving long-annihilated units around in his imagination as the Red Army closes in. He hasn’t failed, the German people have failed him. No one was strong enough in the end, no one but Hitler himself.

    Of course in the end a defeated and impotent Hitler decided to do one decent thing and blow his brains out.

    But Trump still has armies. In fact he has the most powerful military force on earth. He can, from a position of personal safety, rain down death just about anywhere on the planet. He won’t mess with Russia, obviously, or any of Putin’s satraps. He won’t pick a fight with China because Mar-a-lago might go up in a mushroom cloud. But if he does start a war he can declare a national emergency, martial law, and insist that only he can fight it.

    There’s really only two targets for Trump if he decides to go this route: Iran and North Korea. Taking out Iranian nuclear facilities would have the support of Israel (Adelson money) and the Arabs (MBS money). Lindsay Graham would slither out to say it was justified and support Trump’s declarations of martial law. The Democrats can then be portrayed as Iranian collaborators.

    Some bright spark would try to convince Trump to go conventional rather than nuclear, but that kind of thing takes time to mount. Whereas launching ballistic missiles is quick and easy.

    If Trump won’t resign and get a pardon from (a perhaps uncooperative) Pence, it may be his best option. The unknowable factor is the direction of Trump’s cowardice. Is he sufficiently terrified of removal and possible prison to nerve himself up for mass murder and crimes against humanity? If I were Iranian I’d be very nervous.

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  8. Mister Bluster says:

    @Kathy:..If something in the universe need a good safeguard, then preventing the use of nukes on a whim has to be it.

    Tell that to Dr. Strangelove

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  9. Pylon says:

    If you read Campos’ blog comment on his own article it’s pretty clear he’s written the whole thing as a bit of a joke:

    “ I was looking over Section Four of the 25th amendment in the public library on Thurmon Street when it suddenly occurred to me …”

    “And then I realized like I was shot with a diamond — a diamond right through my forehead . . . And I thought: My God, the genius of that. The genius. The will to do that. Perfect, genuine, complete, crystalline, pure.”

    https://www.lawyersgunsmoneyblog.com/2020/12/terminate-with-extreme-bureaucratic-prejudice

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  10. gVOR08 says:

    I don’t know that it would do more harm than good. Pence + cabinet members v Trump would be internecine war, Red on Red. Hopefully they’d all come out bloodied. Any damage to the GOPs would be beneficial to the country. But it is a fantasy. The idea is less a solution to our problem and more a solution to Campos having space to fill.

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  11. Sleeping Dog says:

    @James Joyner:

    If SECDEF refuses the order, Trump fires him and moves on to the next guy until someone agrees.

    True, but by that time Trumps plan would become public and that would change the calculus. He may need to get down to a GS-7 and bribe them to find someone who will comply. Imagine living the rest of your life as the individual who agreed with Trump to start a nuclear war, so that the crazy man could stay in power.

    Time to hide the football.

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  12. Teve says:

    @PreetBharara

    People, I love you. But please stop talking about the 25th amendment.

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  13. Kathy says:

    Time for a 26th amendment: presidential recall election.

    The problem is how to make it easy enough that it could be done at all, not like removing a president through impeachment, but not so easy that it can be wielded as a partisan weapon like the filibuster.

    In other words, the trick is to have the cake and eat it too.

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  14. Jen says:

    @Kathy: That’d be the 28th amendment…we already have a 26th (giving 18 year olds the right to vote) and 27th (pay increases for Congress don’t kick in until the next batch are elected).

    I’m not sure how I feel about recall elections, but dang if we don’t need to do something about the 25th. The chances of us having a Jeb Bartlet equivalent are nil.

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  15. This is a long piece, written by a lawyer. I find the whole thing interesting, but it mentions a right-wing idea called “The Pence Card”, whereby Mike Pence somehow just refuses to do his consititutionally and statutory duty, and does not deliver some or all of the electoral college slates to Congress at the appointed time.

    Thing is, it doesn’t work. I love how all this stuff is swirling around Pence now (well, I hate it too).

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  16. Kathy says:

    @Jen:

    Thanks. I failed “Counting Past Twenty Six” in school and never recovered 😉

    I agree that removing a president shouldn’t be easy, but it shouldn’t be impossible, either. It would be nice to have a more definitive list of what constitutes “high crimes and misdemeanors,” rather than the current standard of “what a majority in the House says it is.”

    It would also be nice to be able to indict and prosecute a president, or a Trump. I understand the rationale, but it does place the president above the law. Well, why si there a VP then? If a sitting president commits criminal acts that warrant prosecution, they should either face that in office, or allow the VP to serve in their stead while they are preoccupied with their defense.

    But the best argument for having an easier means to remove a president is tens of thousands to maybe over a hundred thousand lives lost in the Trump pandemic. His abject incompetence, stupidity, and plain disinterest in handling it, or pretending to be handling it, marks his tiny hands with blood.

    Another pandemic as bad, or even worse, than COVID-19 is inevitable, but also unpredictable. It might come in a century , it might come next week. Do we want capable leadership, or shirking of responsibility and piles of corpses? Do we want a government that will at least prepare for such crises, or one that will further cut taxes and cage children?

    Nor are pandemics the only possible crises. See Trump’s mishandling of just about every crisis in his so-called administration, from hurricanes to wildfires. How many lives and how much destruction of property is ok, before people realize they can’t wait for the next election?

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  17. al Ameda says:

    Imagine: in a bar, it’s 3:30am, The bartender announced last call nearly 2 hours ago, but the drunk – Donald Trump – at the end of the bar won’t leave. The bartender doesn’t want to deal with him, his friends are afraid to lead him to the door, and the police haven’t responded to the 2:15 call asking for assistance to bounce the guy out. Taxis and Uber drivers have blacklisted him. Finally there’s a knock, the bartender answers, it’s a Burger King delivery for the drunk, he doesn’t pay for it, the bartender does …

    Bill Maher was pretty damned right when he started saying, about 18 months ago, that Trump wasn’t going to just go away.

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  18. gVOR08 says:

    @Kathy:

    I understand the rationale, but it does place the president above the law.

    I agree with your comment, but I don’t understand the rationale. Or maybe I do understand it and it’s as stupid as it appears to be. The reasoning seems to be that the country can’t survive the president being distracted (from watching FOX “News” and golfing) to defend his case (which he would pay others to do). But it’s OK because he’s still subject to impeachment (which can’t happen if his party holds 34 Senate seats) and prosecution once he leaves office (which we must never ever ever do because it would appear politically motivated). The same reasoning would apply to, say, the leadership of Congress, the Chief Justice, the Chair of the Fed, or any number of other people, but then it would be too obvious the Rule of Law applied only to the little people. And IIRC the guy at the Office of Legal Counsel who wrote it asked the AG at the time how he wanted it to turn out. Which I believe is far from uncommon for legal opinions in general. Oh, and he gets to pardon any witnesses (which removes the cover of the 5th amendment, but also removes any leverage a prosecutor might have).

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  19. Gustopher says:

    @gVOR08:

    And IIRC the guy at the Office of Legal Counsel who wrote it asked the AG at the time how he wanted it to turn out.

    The opinion was written with the primary intention of saying that you *can* prosecute the Vice President, as none of the reasons for exempting the President apply.

    Ah, Spiro Agnew.

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  20. Kathy says:

    @gVOR08:

    Most presidents do actual work, and an indictment can be hugely distracting from it, especially in a crisis. imagine if JFK were facing prosecution in the middle of the Cuban Missile Crisis, or FDR at pretty much any time in his presidency.

    But no one should be above the law, and many regular people do lose their jobs when facing prosecution, justified or not, be it because they are arrested and held, or because they need to focus on their defense.

    A president facing such a situation, should be able to either resign to take care of it, or take a leave of absence as needed. Plenty of regular people do that, and the president should be no different.

    BTW, impeachment conducted in a partisan manner, regardless of which party acts that way, delegitimizes that particular remedy. McConnell stated a number of times if people were unhappy with trump, they could vote him out. That’s not the point, of course, but it seems that way if you’ll defend or condemn a criminal act depending on which party is being accused of it.

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  21. Teve says:

    @Gustopher: mind boggling that Agnew wasn’t vetted. Everyone in Maryland knew he was taking kickbacks.

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