In the wake of the storming of the US Capitol by a pro-Donald Trump mob calling for the results of the 2020 election – now certified – to be overturned, Democrats and some Republicans are calling for the 25th amendment to the constitution to be invoked to remove Trump from office.
The 25th amendment has, historically, mostly been used voluntarily by presidents to temporarily transfer executive power to their vice-presidents while they undergo medical procedures under Section 3 of the amendment. It was previously invoked in 2007, when Dick Cheney was made acting president for two hours while George W Bush underwent a colonoscopy.
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Section 4, which permits an unfit president to be removed from the office against their will, has never been used to date. Under the 25th amendment, if Vice-President Mike Pence – who in recent days has refused to go along with Trump’s baseless attempts to override the expressed will of American voters – and a majority of cabinet secretaries or Congress declare Trump “unable to discharge the powers and duties of his office”, Pence would replace Trump as acting president until 20 January, when the president-elect Joe Biden will be sworn into office.
The language of the amendment is intentionally broad, allowing for its potential invocation in a wide range of circumstances, including some in which the president contests their unfitness to hold office, according to Paul Campos, a law professor.
Earlier in Trump’s term there had been rumours that Pence had considered invoking the 25th amendment, for instance, after he fired the FBI director James Comey, but the whispers never resulted in action. In part, this is a result of a mechanism in the amendment that requires two-thirds of both houses of Congress to assent to permanently remove the president from office – a non-starter in a Republican-controlled Congress.
However, with less than two weeks of Trump’s term to go, only a majority of one house of Congress would be required to make Pence acting president until Biden is inaugurated, removing some of the political obstacles in the way of deposition, Campos wrote. Jonathan Swan reports for Axios that “current and former White House and GOP Hill aides, and Republican lobbyists and political consultants” are considering measures to curtail Trump and run down the clock on his tenure, including invoking the 25th amendment.
Whether that will happen remains primarily a question of politics. Trump’s vice-president and a majority of his cabinet deciding to remove him from office would represent an extraordinary about-face after four years of turbulent rule marked, above all, by Trump’s insistence on unwavering loyalty from his political allies. Were Trump to be deposed, he would certainly not go quietly, opening up the possibility of a politics of grievance that could last much longer than the remaining days of his term.