Following the siege of the U.S. Capitol on Wednesday by a violent pro-Trump mob, a number of Democratic lawmakers, including soon-to-be Senate Majority Leader Chuck Schumer, D-N.Y., and some Republicans have called for the president to be removed from office, either through impeachment or use of the 25th Amendment after they say he incited the violence perpetrated by his supporters on Jan. 6.
The 25th Amendment has rarely been used since its ratification in 1967, following John F. Kennedy’s assassination. It defines how the president or vice president is replaced if they die, resign or are removed from office and was used twice during President Richard Nixon’s administration to appoint new vice presidents and in the President Ronald Reagan and President George W. Bush’s administrations to temporarily have their vice presidents exercise the duties of the presidency while the presidents underwent medical procedures.
Section 4 of the amendment, which gives the vice president and Cabinet members the ability to remove presidential powers from the president, has never been used.
“There’s a reason it’s never been invoked, it’s an extraordinary remedy,” said Stephen Vladeck, a law professor at University of Texas Austin, specializing in constitutional law.
Section 4 of the amendment is more difficult than impeachment, Vladeck said, because any House member can introduce articles of impeachment, but only the vice president and the Cabinet can invoke the 25th Amendment.
How would invoking the 25th Amendment work?
Vice President Mike Pence and a majority of Cabinet members would have to give a written statement to Congress declaring that President Donald Trump is unfit for office, and at that point, Pence would be given presidential powers.
Trump can write a letter to Congress disputing Pence and the Cabinet’s claims, but that does not restore his presidential powers. Pence and the Cabinet could contest his letter within four days.
If Pence and the Cabinet overruled Trump, then Congress would have to meet within 48 hours to decide the fate of the president, but the lawmakers have 21 days to make a final decision with at least two thirds of the vote. Presidential power would remain with Pence until there is a final decision.
If Trump does not contest Pence and the Cabinet’s statement, then presidential powers will remain with Pence until a formal process to change that, like the inauguration of the next president, takes place.
How this could play out
There’s only 12 days left of Trump’s term, which is significant, Vladeck said. Trump’s power would be removed for the remainder of his term once Pence and the Cabinet submit a letter to Congress declaring him unfit, regardless of Congress’ final decision.
Congress has 21 days to come to a decision, and it’s easier for them to “sit on their hands” until the end of Trump’s term, Vladeck said.
Federal officials and lawmakers floating the idea of invoking the 25th Amendment suggests there is something about Trump’s state of mind and competency that the public cannot see, said Michael Kang, an election law professor at Northwestern.
He said even if people did want to see Trump lose his presidential powers, the short time frame of his last days in office may make people skeptical about whether it’s worthwhile to pursue.
“If there really is decisive action to invoke Section 4, I think that really reflects something about what Trump’s state of mind really is,” Kang said.
Many members of Congress called for Pence to move forward with invoking the 25th Amendment, including Rep. Adam Kinzinger, R-Ill. As of Jan. 7, 19 members of Congress signed a letter to Pence, while others echoed calls for impeachment, with articles first drafted up by Rep. Ilhan Omar, D-Minn.
To remove Trump from power, the Senate would need 67 votes and the House would need 290. Many House Democrats, including Speaker Pelosi, say they will move forward with a swift impeachment if Pence and the Cabinet do not invoke the 25th Amendment.
Without impeachment, only one thing can remove Trump from power during his last days in office: His own vice president and Cabinet.