25th Amendment: Is There Enough Time to Remove Donald Trump?

January 8, 2021 Topic: Politics Region: Americas Blog Brand: Politics Tags: Joe BidenDonald TrumpInauguration25th AmendmentImpeachment

25th Amendment: Is There Enough Time to Remove Donald Trump?

With twelve days left, the main questions are whether it's simply political posturing and whether there are even enough votes.

Several Democratic lawmakers are calling for President Donald Trump’s removal from office—either through impeachment or by asking Vice President Mike Pence to invoke the 25th Amendment—in the wake of the mob assault on the U.S. Capitol on Wednesday by pro-Trump loyalists who attempted to block the electoral college certification process to affirm President-elect Joe Biden’s White House victory.

“The quickest and most effective way—it can be done today—to remove this president from office would be for the vice president to immediately invoke the 25th Amendment,” Senate Democratic Leader Chuck Schumer (N.Y.) said in a statement Thursday, in which House Speaker Nancy Pelosi (D-Calif.) quickly followed suit in pushing for Pence to invoke the 25th Amendment. “If the vice president and the Cabinet refuse to stand up, Congress should reconvene to impeach the president.”

But with a Republican-controlled Senate and less than two weeks until Biden takes office, is there time to push Trump from office?

Experts say yes, but question if there is enough bipartisan political urgency to get Trump out of the White House, considering there’s just twelve days left of his term.

“Yes, there is time, whether there is the political will is a different question,” Erwin Chemerinsky, dean and professor of law at the University of California, Berkeley School of Law, said.

Raymond La Raja, political science professor at the University of Massachusetts Amherst, echoed Chemerinsky’s remarks, noting “There is sufficient time, but there is no groundswell to do it, even among many Democrats.”

In terms of removing Trump by impeachment, House Democrats could expedite their part of the process by quickly drafting up the articles of impeachment, pushing them through the judiciary committee in a few days. Then, the Senate could convene immediately after, rolling through a fast trial to remove the president from office. Although perfect timing could work, the push is likely to collapse due to a lack of political “appetite” and a GOP-controlled Senate.

“For impeachment, the House would have to draft the articles immediately and mostly skip committee hearings. The Speaker is also unlikely to pursue impeachment unless she knows it would pass in the Senate,” La Raja said. “I don’t see that happening at all.”

While more than half of the Democrats in the House are pushing for Trump’s removal through impeachment, other Representatives may be hesitant to join the wave, as the Senate will likely squash the process. The upper chamber would need sixty-six votes to get the president out of office—including at least eighteen Senate Republicans, a figure that House Democrats are wildly unlikely to achieve, as only one, Sen. Mitt Romney (R-Utah), voted to impeach Trump earlier in the year.

In Trump’s previous impeachment, the House released the articles of impeachment on Dec. 10, 2019, and quickly impeached the president just eight days later. Once the Senate met for a trial, after experiencing a slight pause led by Pelosi, it took the upper chamber nearly three weeks to go through its own rules and ultimately acquitted Trump.

There could be, however, more urgency from the GOP to remove Trump from office due to his role in inciting the violent mob attacks on the Capitol on Wednesday, but it’s unlikely that enough Republicans will split from the core of the party and side with the Democratic effort, as Trump holds a strong power over the party and is rumored to intend to run for president again in 2024.

Another tactic that Democrats have proposed to kick Trump out of the Oval Office is to invoke the 25th Amendment, which sets the groundwork for transferring presidential powers from president to vice president in event of death, removal, resignation or incapacitation.

Under Section 4 of the 25th Amendment, which reportedly has not been invoked before to withdraw a sitting president, the vice president can, along with a majority support of Cabinet officials, dictate whether the president is unfit to continue his constitutional duties in office. If deemed unfit or “unable to discharge the powers and duties of his office,” the vice president would immediately become acting president, if passed by a vote.

“If enough cabinet members or whomever is involved in making these determinations truly believe that the President is unable to discharge his duties, then the amendment should be invoked at once, no matter where in the term,” John Aldrich, a Pfizer-Pratt professor of political science at Duke University, said.

“The Vice President and the Cabinet could meet now and invoke the 25th Amendment,” Chemerinsky said. “But there is little likelihood the Vice President and the Cabinet will do this.”

The New York Times reported Thursday that Pence, along with “several Trump Cabinet officials,” are rejecting the bipartisan pressure to invoke the amendment, citing that it would instill more mayhem in an already divided political climate.

The amendment is typically used when a president undergoes a medical procedure or surgery. President Ronald Reagan used this in 1985, along with President George W. Bush in 2002. In the case involving Trump, the process would be “super complicated” since the tools of the framework don’t just enable “officials to replace someone whose decisions people disagree with,” FiveThirtyEight’s Perry Bacon Jr. writes.

“The 25th Amendment seems risky and is poorly understood by the American public,” La Raja said. “There could be a legitimacy problem if that was attempted, particularly if the Republican Party is divided.”

While there is enough time to push through a rapid impeachment or use the 25th Amendment, both efforts are unlikely to work in such a heated and edgy political atmosphere.

“It is not obvious to me that he is ‘unable.’ He might well be unable to discharge them well or discharge them appropriately, but actual inability is a different standard. But if they truly believe he is unable to do so, very little time should pass before the amendment is put into effect,” Aldrich said. “After all, this is a moment when bad actors around the world, whether government figures or terrorists or whatever, can see advantage to acting. So, even if it is two days, the Vice President should take over.”

Rachel Bucchino is a reporter at the National Interest. Her work has appeared in The Washington Post, U.S. News & World Report and The Hill.

Image: Reuters.