ChrisWeigant.com

Taking The 25th

[ Posted Wednesday, January 25th, 2017 – 17:44 PST ]

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

 

35 Comments on “Taking The 25th”

  1. [1] 
    Elizabeth Miller wrote:

    If the president of the United States issues an unlawful order to a cabinet secretary or to any member of the president's national security council or agency, then is that grounds for impeachment, whether or not the order is followed?

  2. [2] 
    Elizabeth Miller wrote:

    On the other hand, I think it might be better if Democrats just demonstrate that they have a better way forward, a better way to communicate it, and are capable of learning valuable lessons that voters in 2016 offered them.

  3. [3] 
    Elizabeth Miller wrote:

    Apparently, before President Obama left office, he warned congressional Democrats not to help Trump kill Obamacare.

    That is both wrong-headed and misguided.

    With respect to the Affordable Care Act, what Democrats should do - what they should have done before the election - is to lay out, with great specificity, the problematic areas of the ACA and how they should be fixed.

    If Democrats and the rest of the American resistance do that and nothing else, they would go a long way toward ensuring great electoral success in 2018.

  4. [4] 
    Elizabeth Miller wrote:

    Here is an inspirational video clip I'd like to share.

    It's especially for those of us who are feeling a bit out of sorts in the wake of the inauguration of the new president and as we witness the very early days of the Trump administration ...

    http://www.huffingtonpost.com/entry/jerry-brown-donald-trump-speech_us_58879cc0e4b0441a8f712f7e

  5. [5] 
    Elizabeth Miller wrote:

    In comment [3], kill should be repealed and replaced with, well, replace.

  6. [6] 
    John M wrote:

    Elizabeth wrote:

    "If the president of the United States issues an unlawful order to a cabinet secretary or to any member of the president's national security council or agency, then is that grounds for impeachment, whether or not the order is followed?"

    I think the simple short answer to that is, NO.

    Presidents issue orders all the time that are later found to be unconstitutional by the courts, in essence, that they were unlawful or illegal orders.

    What impeachment requires is that the President be found to have actually violated a previously EXISTING law through an actual physical action, for want of a better term. Such as being caught and convicted of drunk driving. Or taking an active role in a conspiracy to cover up a crime, such as Nixon did, during the Watergate break in and burglary.

    The Constitution sets specific grounds for impeachment. They are “treason, bribery, and other high crimes and misdemeanors.” To be impeached and removed from office, the House and Senate must find that the official committed one of these acts.

  7. [7] 
    John M wrote:

    Elizabeth

    Another example would be the impeachment of Bill Clinton over the affair with Monica Lewinksy. It wasn't the affair itself that caused the impeachment. The supposed grounds for the impeachment was that he lied about the affair, committed perjury, in sworn testimony under oath to tell the truth as if he was in a court of law. That's what got him into trouble.

  8. [8] 
    michale wrote:

    Oh come on...

    Trump is the President...

    Ya'all need to accept that...

    These flights of fancy are very unbecoming.. :D

  9. [9] 
    michale wrote:

    After the Obama debacle, who would have guessed that DEMOCRATS would throw around the i-word so hysterically??

    Oh... wait... :D

  10. [10] 
    michale wrote:

    Liz,

    With respect to the Affordable Care Act, what Democrats should do - what they should have done before the election - is to lay out, with great specificity, the problematic areas of the ACA and how they should be fixed.

    Couldn't agree with you more, Liz....

    If Democrats and the rest of the American resistance do that and nothing else, they would go a long way toward ensuring great electoral success in 2018.

    But Democrats won't do that because they would have to admit they were wrong..

    And, as we have seen since the Hillary Shellacking Of 2016, Democrats simply CANNOT admit when they are wrong..

  11. [11] 
    michale wrote:

    JM,

    Re #6

    Well said....

  12. [12] 
    michale wrote:

    Liz,

    Jerry Brown Throws Down The Gauntlet Against Trump: ‘We Have To Live In The Truth’

    As usual, Jerry Brown is wrong..

    Truth is subjective.. For Democrats, the 'truth' is that Hillary won the Election... For President Trump, the 'truth' is that the inauguration crowd was the largest in history....

    But, in both cases, we know the FACTS say different..

    'Truth' is a convenient 'Feel Good' drug that has very little to do with reality..

    If anyone says they are all about 'truth' you KNOW they have something to hide....

    We have to "live in the FACTS"....

  13. [13] 
    michale wrote:

    I mean, com'on.. Let's be honest here..

    So far President Trump has been doing a great job...

    He is not nearly as bad as ya'all thought he would be..

    And THAT scares the piss out of ya'all!! :D

  14. [14] 
    Elizabeth Miller wrote:

    John,

    Well, that's alright ... I think if Trump ordered his people to engage in the act of torture, they would refuse and resign and he wouldn't have any people left to do his dirty work.

    At least, that is my hope.

  15. [15] 
    Elizabeth Miller wrote:

    Michale,

    You are mixing up truth with opinion. Again.

    Truth, facts and reality are all the same thing.

  16. [16] 
    michale wrote:

    You are mixing up truth with opinion. Again.

    *I* am not doing it. It's human nature to do it..

    I am just one of the lucky ones who can rise ABOVE that sort of thing and embrace logic and facts..

    Truth, facts and reality are all the same thing.

    Really???

    For tens of millions of christians on the planet, their "truth", their "reality" is that there is an omni-present being that lives in the sky and has total and complete power over everything and everyone...

    You tell me.. Is that factual???

    Truth and facts are NOT the same thing..

    And it's only the people whose 'truth' is that Hillary won the election who want you to believe it is...

    Embrace FACTS, not truth...

  17. [17] 
    Elizabeth Miller wrote:

    For tens of millions of christians on the planet, their "truth", their "reality" is that there is an omni-present being that lives in the sky and has total and complete power over everything and everyone...

    Now, you are mixing up religious belief with truth, facts and reality.

    On the bright side, I'm beginning to understand where you're coming from ... :)

  18. [18] 
    Elizabeth Miller wrote:

    Truth and facts are NOT the same thing..

    This is precisely where you go wrong.

  19. [19] 
    michale wrote:

    And it's only the people whose 'truth' is that Hillary won the election who want you to believe it is...

    For the record, I know you are not one of those.. Like me, you scoff'ed at the idea that Hillary winning the popular vote has any real meaning...

    Just so we're clear...

  20. [20] 
    michale wrote:

    This is precisely where you go wrong.

    And yet, I just PROVED beyond any doubt that I am NOT wrong.. :D

  21. [21] 
    michale wrote:

    Now, you are mixing up religious belief with truth, facts and reality.

    For religious people, their beliefs *ARE* facts..

    THAT'S my point..

  22. [22] 
    michale wrote:

    On the bright side, I'm beginning to understand where you're coming from ... :)

    Scary, iddn't it? :D

  23. [23] 
    michale wrote:

    PRESIDENTIAL APPROVAL 59%

    The Rasmussen Reports daily Presidential Tracking Poll for Thursday shows that 59% of Likely U.S. Voters approve of President Trump’s job performance. Forty-one percent (41%) disapprove.
    http://www.rasmussenreports.com/public_content/politics/trump_administration/prez_track_jan26

    President Trump's approval rating continues to rise.... :D

    Who would have THUNKED it??

    Oh.. I know! :D

  24. [24] 
    BigGuy wrote:

    From a presidential tweet: " ... If Mexico is unwilling to pay for the badly needed wall, then it would be better to cancel the upcoming meeting".

    Is this resignation that we will bear the full cost?

    Guy

  25. [25] 
    michale wrote:

    From a presidential tweet: " ... If Mexico is unwilling to pay for the badly needed wall, then it would be better to cancel the upcoming meeting".

    Is this resignation that we will bear the full cost?

    Nope... It's the opening salvo of a man who wrote the book on The Art Of The Deal...

    One way or another, Mexico will pay for the wall..

    Even if they don't, who cares??!

    What's important is our border is going to be secure....

    THAT's what's important here...

  26. [26] 
    michale wrote:

    Mexico needs the US a lot more than the US needs Mexico...

  27. [27] 
    michale wrote:

    President Trump intends to pay for the coming US-Mexico wall with a 20 percent tax on all imports coming from Mexico, White house spokesman Sean Spicer said Thursday.
    nypost.com/2017/01/26/trump-wants-20-percent-import-tax-to-pay-for-mexico-wall/

    And 'viola....

    Mexico pays for the wall that the Mexican government makes necessary...

    Peso crushed after Mexican president cancels meeting in latest international Twitter spat
    cnbc.com/2017/01/26/peso-crushed-after-mexican-president-cancels-meeting-in-twitter-spat.html

    Ya see?? Mexico is just digging their own grave....

    I predict Trump's approval numbers will reach 70% by the end of Feb... :D

  28. [28] 
    altohone wrote:

    Troll
    20

    No.
    You didn't.

    Once again you demonstrated that you don't know what "prove" means.
    Congratulations again.

    A

  29. [29] 
    altohone wrote:

    Hey CW

    Thirteen Democratic Senators voted to confirm a new head of the CIA who refused to rule out re-implementing torture as US policy... including the Senate Minority leader and DiFi.

    I don't understand why you are dwelling on an unlikely theoretical.

    A

  30. [30] 
    michale wrote:

    Troll (Formerly Known As Asshole)

    No.
    You didn't.

    You need to get over this idea that, simply because you say something, that makes it so...

    I have aptly proven that I am right with facts and examples...

    You have nothing but whiney little drivel that spews out of your mouth.. Why do you think you are called "ALICE" in addition to TROLL and ASSHOLE...

    Face the facts, little bit.. You are outclassed and outgunned... Run upstairs to mommy and cry.... :D

  31. [31] 
    ListenWhenYouHear wrote:

    An import tax means that WE would pay the increase for products coming from Mexico and it would likely result in Mexico placing a similar tax on American exports heading south.

    As for your comment the other day saying how Trump says JUMP and Mexico says, "How high?".... The Mexican president canceled the meeting... So it's less "How high?" and more like, "Go frak yourself!"

  32. [32] 
    altohone wrote:

    Troll
    39

    Like I said... just don't call me late for dinner.

    You're so admirable for admitting what I said the other day is true.
    And it was so easy to get you to do it.
    Neil was right about you there.
    But a Jedi mind trick via a comment section is good fun.

    Of course, the hypocrisy of suddenly embracing the reality that empty assertion does not make something factual is terribly disturbing coming after all those empty assertions you made.
    But now I can quote you when you do it again!
    And you will.
    Listen was right about your hypocrisy.

    And once again, you put the trollery of not abiding by the same standards you expect others to keep on full display.
    I guess you don't know what integrity means either.
    Yet another example of me being right.

    In any case, the troll who thinks a temperature prediction in a weather forecast is a "fact" ranting about "facts" that did not "prove" anything is hilarious.
    John and Liz did a wonderful job of pointing out you were wrong.

    I'm glad you went back to trying vulgarity to "vanquish" me though.
    Your recurring fantasizing about wanting to spank me was Trump level creepy.

    I'm just not that into you.

    A

  33. [33] 
    michale wrote:

    As for your comment the other day saying how Trump says JUMP and Mexico says, "How high?".... The Mexican president canceled the meeting... So it's less "How high?" and more like, "Go frak yourself!"

    Actually, it was Trump that told Mexico to cancel the meeting if they weren't going to be reasonable.. :D

    But I can understand why you would blame Trump.. :D

    An import tax means that WE would pay the increase for products coming from Mexico

    How so??

    and it would likely result in Mexico placing a similar tax on American exports heading south.

    Then we just send our products somewhere else...

    Mexico needs the US a lot more than the US needs Mexico..

    Ergo, Mexico dances to OUR tune....

    America First, baby... :D

  34. [34] 
    michale wrote:

    Troll, (Formerly Known As Asshole)

    I'm just not that into you.

    And yet, you hang on my every word and you dance to my every comment...

    I OWN you.. :D

  35. [35] 
    altohone wrote:

    Troll

    You're mistaking mockery for music.

    Toy poodles own nothing.

    A

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