Donald Trump’s recent feud with fellow Republican, Senator Bob Corker, has fueled speculation that the two-term senator, who announced last month that he would not seek re-election in 2018, is quietly gathering evidence for an attempt to remove the president from office under the 25th Amendment.
This is not the first time Trump’s critics have looked toward the amendment as a means of toppling the unpopular leader. According to Google, searches for the term “25th Amendment Trump” have spiked five times since Trump assumed office in January—most recently in August, when Rep. Zoe Lofgren (D-CA) introduced a resolution to the House asking for Trump to undergo psychiatric testing that would evaluate his fitness for office.
The U.S. Constitution allows for only two ways to remove a sitting president, impeachment or removal under the 25th Amendment. While no president has ever been successfully removed from office, impeachment proceedings have taken place against three former presidents. President Bill Clinton was impeached in 1998 after he committed perjury by denying an extramarital affair while under oath. Richard Nixon was impeached during the Watergate scandal in the 1974 but resigned from office midway through the proceedings. Andrew Johnson also faced impeachment in 1968 on a variety of charges but won acquittal in the Senate by a margin of just one vote.
Impeachment is typically reserved for instances in which an official has committed a crime—”The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors,” is the official text from Article II § 4 of the U.S. Constitution.
It is for that reason that some federal officials, like Rep. Lofgren and now potentially Senator Corker, are looking toward the 25th Amendment as the most viable option for forcibly removing Trump from office. The amendment establishes a line of succession for the presidency in the event of a vacancy or temporary vacancy, and provides a method for the vice president and the cabinet to remove the president in the event he is unfit for office. You may remember it from such instances as in 2005, when President George Bush invoked the amendment to transfer presidential powers to Vice President Dick Cheney while Bush underwent a colonoscopy procedure requiring anesthesia.
But what does the process of removal under the 25th Amendment entail, and how could it be used against Trump? Here’s what you need to know:
1. Section 4 of the Amendment Allows for a Procedure for the Vice President and Cabinet to Declare the President Unfit for Office
Each section of the 25th Amendment provides a roadmap for what should happen in the event that the president or vice president leave office are unable to execute their duties for various reasons.
The first section establishes a line of succession for the presidency in the event of death or resignation; section two empowers the president to nominate a vice president, subject to Senate confirmation, in the event the office becomes unexpectedly vacant; and the third allows for the president to temporarily transfer his powers to the second-in-command, as when Bush underwent his colonoscopy, until he submits a written declaration resuming his duties.
The fourth section is the only part of the amendment that has never been invoked. Easily three times as long as the first three sections, section four provides a roadmap for how the vice president, in conjunction with the presidential Cabinet, might forcibly remove the president from office in the event he or she is deemed unfit for office:
Whenever 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, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
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2. Before the Adoption of the 25th Amendment, the Constitution Gave No Clear Line of Succession to the Presidency, & Succession Was Governed by The “Tyler Precedent”
The U.S. Constitution vaguely discusses presidential succession in Article II, Section 1, Clause 6:
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
The ambiguity of the language first came into sharp relief when President William Henry Harrison died after only a month in office in 1841. Vice President John Tyler declared himself the successor and assumed Harrison’s duties, but not everyone in Washington was in agreement with this move.
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Harrison had run for office as a Whig, and party leaders chose Tyler, a Democrat, as his running mate in an attempt to widen the appeal of the ticket—the Whig Party had only been founded nine years prior to Harrison’s death, and hadn’t had much electoral success. Needless to say, the Whigs were unhappy with Tyler’s succession as it meant they had lost their grip on the White House.
After the Supreme Court refused to weigh in on the issue, both chambers of Congress agreed that Tyler was the rightful successor in 1841. He served out the remainder of Harrison’s term besieged by conflict with Whig Party leaders, who twice attempted to force him out of office. For his part, Tyler blocked so much Whig legislation during his term that party members began referring to the him derogatorily as “His Accidency.”
The controversy set a legal precedent, officially called the “Tyler precedent,” that stayed in place for over a century and shepherded the way for six vice presidential successions, including Teddy Roosevelt and Harry Truman.
3. The 25th Amendment Was Proposed in the 1960s When, After JFK’s Assassination, the Vice Presidency Was Vacant, LBJ Was in Poor Health, and the Next Officials in Line Were 71 and 86 Years Old Respectively
In 1963, Congress was already discussing a constitutional amendment that would clear up the ambiguity behind the laws of presidential succession and provide for certain events, like temporary incapacity, that the authors had not anticipated. But the biggest proponent of the amendment, Senator Estes Kefauver, died of a heart attack on the Senate floor in August 1963.
Three months later, President John F. Kennedy was assassinated in Dallas, Texas, while riding in a motorcade next to his wife and Vice President Lyndon Johnson.
Johnson, whose health was already in decline, was sworn into the presidency about two hours after Kennedy’s death, leaving the vice presidency vacant. The next two successors, House Speaker John McCormack and Senate Pro Tempore Carl Hayden, were 71 and 86 years old respectively.
This shaky line of succession led Senator Birch Bayh to take up Kefauver’s cause, pushing for an approval of his amendment in 1964. Over the next year, members of Congress debated the amendment until they finally agreed on the wording in early 1965. It took less than two years for the amendment to be ratified by 38 states; it officially became law in February 1967.
4. The Fourth Section of the 25th Amendment Has Never Been Invoked, and Experts Caution It Was Designed So That It Could Not Be Used to Remove a President on the Grounds of Unpopularity
The 25th Amendment was not formally invoked until Bush transferred power to Cheney during his 2005 colonoscopy. However, President Ronald Reagan had previously transferred his powers to his vice president, George H.W. Bush, when he went under general anesthesia to remove a malignancy in his colon in July 1985.
Reagan wrote a letter to the speaker of the House advising him of the transfer of power, but specifically noted that he was not invoking the 25th Amendment. “I do not believe that the drafters of this amendment intended its application to situations such as the present one,” he wrote.
The fourth section of the amendment, which allows for the removal of the president from office on the grounds of being unfit for office, has never been invoked. For it to be so, the vice president and a majority of the Cabinet must agree that the president is “unable to discharge the powers and duties of his office.” Should the president object, both chambers of Congress can confirm the removal with a two-thirds vote.
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The vagaries of the language surrounding what constitutes fitness for office have caused a number of people to speculate that the amendment could be used to remove controversial President Donald Trump from office.
Rep. Jackie Speier tweeted in August 2017 that “POTUS is showing signs of erratic behavior and mental instability that place the country in grave danger. Time to invoke the 25th Amendment.”
However, Speier’s fellow representative from California, Adam Schiff, told CNN a few days later that he believed the 25th Amendment was intended for cases in which the president experienced a serious physical or mental incapacity, like a nervous breakdown. “I think we’re still far from concluding that that’s the case, even though we find, many of us, his conduct anathema and there to be a serious problem here,” he added.
In an analysis of the fourth section of 25th Amendment, Politifact found that some of the architects of the amendment had, indeed, intended for the ambiguous language to encompass situations where a mental or physical disability might not be so easily proven.
At the time, Robert F. Kennedy said that being “unable” to serve in office “involves physical or mental inability to make or communicate his decision regarding his capacity and physical or mental inability to exercise the powers and duties of his office.”
According to St. Louis University law professor Joel Goldstein, Rep. Richard Hoff also considered the language to encompass when “the President, by reason of mental debility, is unable or unwilling to make any rational decision, including particularly the decision to stand aside.”
However, Goldstein also told Politifact that “the record makes clear that section four was not intended as a means of removing the president simply because he or she makes an unpopular decision,” meaning that for Trump to be removed from office, concrete evidence of a mental disability would have to be offered.
5. Republican Senator Bob Corker, With Whom Trump Has Been Publicly Feuding, Is Rumored to Be Quietly Trying to Garner Support for Invoking the 25th Amendment Against the President
In a presidency that has been marked by vicious Twitter wars, perhaps the most jarring is the recent open feud between Trump and a member of his own party, Senator Bob Corker.
The quarrel started on October 8 when Trump tweeted that Corker was declining to run for re-election because he “didn’t have the guts.” The senator responded with another now-famous tweet: “It’s a shame the White House has become an adult day care center. Someone obviously missed their shift this morning.”
The acerbic exchange continued all day, and included an interview between Corker and The New York Times in which Corker accused the president of acting “like he’s doing ‘The Apprentice’ or something.”
“I know for a fact that every single day at the White House, it’s a situation of trying to contain him,” Corker told Times correspondent Jonathan Martin.
The following day, attorney and CNN host Michael Smerconish claimed that Corker’s comments could be a way of “planting seeds” for invoking the 25th Amendment.
“Now he’s saying that ‘he concerns me,’” Smerconish said. “I think he’s planting seeds for questioning the fitness — the mental fitness of the president, pursuant to the 25th Amendment, to continue with his responsibilities.”
He went on to add: “If you were to take a look at the amendment and then say, OK, how would you make an argument, what sort of things would you say in making a case to fulfill Section Four of the 25th Amendment, those words would be at the top of the list.”
Fox & Friends cohost Brian Kilmeade rebuked Corker for his public remarks, calling them “self-serving,” adding, “Whatever Bob Corker thought, he could have done it personally and privately.”
White House Press Secretary Sarah Sanders also called the legitimacy of Corker’s claims into questions, saying “Sen. Corker is certainly entitled to his own opinion, but he’s not entitled to his own facts.” She added, “The facts certainly don’t lie, the President has certainly been very successful.”