As Calls for Trump's Ouster From Office Grow, How and When Can the 25th Amendment be Triggered?

President Donald Trump has only two weeks left in office, with President-Elect Joe Biden scheduled to be sworn in on 20 January. After the mayhem that followed Trump’s speech in Washington on Wednesday, when his suppporters, who have been echoing the sitting president’s claims that the 2020 election was ‘rigged’ and ‘stolen from him’, breached the US Capitol, some Republicans are actively considering ways of removing the POTUS.

While impeaching Donald Trump might be a remedy mulled by some as one that would also prevent him from running for President again, the timeline does not seem to favour this option. Previously, in December 2019, President Trump was impeached by the House of Representatives for abusing power and obstructing Congress when he was accused of pressuring Ukraine into investigating the Biden family’s dealings in the country.

However, he was not removed from office by the Senate, that voted to acquit him 52-48 on charges of abuse of power and 53-47 on obstruction of Congress over charges arising from his dealings with Ukraine.

If convicted on either charge, Trump would have had to turn over his office to Vice-President Mike Pence.

The second option is invoking the 25th Amendment, which has periodically been discussed as a means of last resort to remove an incapacitated president.

What is the 25th Amendment?

Dealing with the issue of presidential succession and disability, the 25th Amendment, ratified in 1967, offers a legal mechanism for designating a head of state when the sitting president is incapacitated or dead.

It clarifies that the vice president becomes president if the president dies, resigns, or is removed from office. It also provides the president and Congress with shared power to replace a vice president.

Why was there a need for the 25th Amendment?

The 25th Amendment was enacted in the wake of the assassination of John F. Kennedy to offer a clear line of succession in urgent contingency situations, after his predecessor Dwight Eisenhower suffered debilitating heart attacks while in office in the 1950s.

At the time, he arrived at an agreement with Vice President Richard Nixon on handing over power.

The section of the 25th Amendment that allows the vice president and Cabinet to remove the president purportedly referred to a situation when the country’s leader was in a coma or had suffered a stroke. However, the amendment does not offer a clear-cut description of what qualifies as an ‘inability to serve’.

According to an aide of American Democratic Party politician, the late former Sen. Birch Bayh, who authored the constitutional amendment, it “didn’t settle the issue of what it is”, but “provided a mechanism for addressing the issue.”

In the more than 50 years since the Constitution was amended, the process has never been triggered.

What would triggering the 25th Amendment require?

In order for power to be forcibly wrested from Donald Trump, Vice President Mike Pence would have to be amenable to the process, according to the text of the amendment.

The vice president would also require either a majority of Trump's Cabinet officials to agree to declare the President unable to “discharge the powers and duties of his office,” and temporarily seize power from him.

Congress can alternatively designate through legislation a group other than the Cabinet that the vice president could join forces with to declare a president unfit to serve. During the last Congress, House Speaker Nancy Pelosi introduced a bill to create a congressional body for this purpose, but it was not signed into law.

This had come in October after Trump's coronavirus diagnosis, and would have established a process to give Congress a say in removing a president from office under the 25th Amendment of the Constitution, if a majority of Cabinet members and the vice president consider him unable to carry out his duties.

What Could Trump do?

If the sitting president were to dispute the process with a letter to Congress, two-thirds of both the House and the Senate must vote to place the vice president in charge.

Current vice president Mike Pence and the Cabinet would have four days to dispute with the sitting president, after which there would be a vote by Congress. A two-thirds majority - usually 67 senators and 290 House members – would be able to remove the president from office.

What does Pence Think?

Vice president Mike Pence has never indicated that he questioned Donald Trump’s ability to be president, and slammed "any suggestion" of triggering the amendment as "absurd" in 2019.

However, the sitting president rebuked Pence on Wednesday after the vice president refused to break the law and use his constitutional position as president of the Senate to hamper a joint session of Congress from certifying the Electoral College vote count in favour of Prescient-elect Joe Biden.

“Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution,” Trump tweeted in a post on Wednesday evening subsequently removed by Twitter.

The storming of the Capitol by Trump protesters could potentially become the first contingency in US history to trigger enactment of the 25th Amendment.