That headline is an obvious attempt at a play on words, but while "taking the Fifth" (refusing to testify on the grounds that it would tend to incriminate you, a right guaranteed under the Fifth Amendment to the U.S. Constitution) happens on a daily basis in America, "taking the Twenty-Fifth" has never happened -- at least not in the way some are now contemplating. I first briefly wrote about this issue two weeks ago, but since then more and more people -- from both the right and the left -- have been noticing this constitutional oddity. But few are taking the time to read the entire section, instead quoting the start of it and ignoring the rest of it, which deals with the actual procedure itself. If you seriously are considering removing the president in a constitutional coup, however, it's worth taking a strong look at the Twenty-Fifth, in full.
The Twenty-Fifth Amendment to the Constitution deals with presidential succession. It came about as a direct result of the assassination of President John F. Kennedy. Prior to Kennedy's untimely death, whenever a vice president assumed the office of the presidency upon a president's death, the office of the vice president was left open until the next presidential election. America has gone for years without a vice president several times in our history, and we were just lucky that no president who had stepped into office after a death ever then died himself before his term was up. This was no longer seen as workable, at the height of the Cold War. A clear line of succession was necessary, which is what most of the rest of the amendment deals with. Section four, however, inserted a provision which has always been used in limited fashion, but which provides for a fully-legal, fully-constitutional coup d'état.
Here is the text that everyone focuses on, for starters. Amendment XXV, Section 4 begins:
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.
"The principal officers of the executive departments" means the president's cabinet. So if Mike Pence decides that Donald Trump is mentally unfit for office and if he can get over half the cabinet to back him up, he can wrest the presidency away from Trump. This is what has caused all the recent speculation, and it's my guess that this section of this particular amendment is going to become more and more well-known as the Trump presidency proceeds. Calls to "take the 25th" may become common if Trump does something incredibly outrageous, in other words.
However, this isn't actually the end of the story. Mike Pence would become Acting President Pence, which would last for about ten minutes. Or whatever time it took Donald Trump to write and dispatch his own letter. Because the drafters of this amendment obviously thought about what situations this rather important power might lead to. Which is why they included the rest of the section:
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.
In other words, it's not as easy as just writing a letter and getting half the cabinet to sign it. Far from it.
Now, this particular part of the Constitution actually has been previously used, but in the most benign way imaginable. At least two presidents have had periods where their vice presidents became acting presidents, while the president underwent surgery. Because they were under general anesthesia, they were obviously "unable to discharge the powers and duties of his office," due to being unconscious. If America's enemies had attacked, our government would not have been paralyzed, in other words. Once the president recovered from surgery, another letter was signed and they became president once again. The vice president went back to being vice president again, with no fuss. There was no power struggle, because everyone agreed what should happen and when.
But if Mike Pence and Donald Trump disagreed about Trump's ability to do his job -- for any reason -- then we'd have a constitutional crisis bigger than Watergate. You'll note that the language in the amendment is rather vague, especially concerning who would be in charge for that three-week period. "Thereupon Congress shall decide the issue" doesn't address what is going to happen in the meantime, in other words. Would we have dueling presidents? Would Trump be issuing orders and Pence countermanding them? Who should follow which order? It could very easily devolve into utter chaos, and that's even before contemplating contradictory orders given to the Pentagon.
This route for deposing Donald Trump is an interesting mental exercise for journalists and disaffected citizens, to be sure. Unlike impeachment, nothing needs be proven in a judicial setting. Impeachment is quite specific -- articles are drawn up by the House which lay out the case that the president has violated the law in some (or multiple) instances. But the Twenty-Fifth Amendment hinges solely upon opinion. If it is the opinion of Mike Pence and a majority of the cabinet that the president is unfit to serve his office -- for whatever reason they believe -- then the process starts. If it is likewise the opinion of two-thirds of both houses of Congress that the president is unfit to serve, then Mike Pence takes over. That's it. No proof of wrongdoing is necessary. No proof of even mental unfitness is technically necessary, although one would assume this would be a lively topic of congressional debate in those intervening three weeks.
The bar for removing a president through the Twenty-Fifth Amendment is actually higher in one regard than for impeachment. To impeach and remove a president, the House only needs a majority while the Senate requires a two-thirds supermajority. But if the Twenty-Fifth were used in this way, it would mean getting a two-thirds vote in both houses. So if it were ever to become reality, Donald Trump would have had to have lost a massive amount of support from members of his own party in both houses, not just the Senate. But, again, even though the numeric bar is set higher, the evidentiary bar doesn't exist. To impeach, wrongdoing must be proven. To throw the president out because he's acting looney only requires everyone to believe he's a lunatic.
There's one final twist to consider for anyone seriously advocating taking the Twenty-Fifth. Let's go back to the language which describes what would happen if Congress did back up the cabinet. After the vote, "the Vice President shall continue to discharge the same [powers and duties of office] as Acting President." This is radically different than impeachment, which removes the president from office, and makes the vice president our next president. Even if Mike Pence were successful in wresting the reins of power away from Donald Trump, Trump would still officially be president. We would have Acting President Pence as well as President Trump! Trump would be powerless, unable to issue any presidential orders that anyone would have to follow, but he'd still retain the title. This would be awkward, to say the least. President Trump might continue living at the White House and essentially doing what the Queen of England does -- all the ceremonial parts of being the head of state, with no actual governmental function whatsoever. Trump might hold state dinners, he could attend state funerals, and do all the other diplomatic (but meaningless) functions presidents are expected to do.
Now, you can argue that Trump himself probably wouldn't refuse to leave, but who knows what he'd do in such a situation? It would be a completely unprecedented constitutional crisis, so there simply are no previous rules to follow. We'd all be making it up as we went along, Trump included. But whatever the end result, the process itself is a lot more complicated than some (even some professional journalists) seem aware of, at this point. It's not just signing one letter. Trump would fight back. For up to three weeks, we'd effectively have two leaders for our government, which would be precisely as chaotic as it sounds. And even if the effort were successful, we might still have President Trump kicking around the White House afterwards. When you think it all the way through, impeachment would likely be the better route to take. If Donald Trump did something so outrageous that he lost support of roughly half the Republicans in Congress, then the case for impeachment would likely be just as easy to make as taking the Twenty-Fifth. At least with impeachment, once it was over, Trump would be gone.
-- Chris Weigant
Cross-posted at The Huffington Post
Follow Chris on Twitter: @ChrisWeigant