To remove President Donald Trump from office, whether for mental or physical incapacity, Democrats and everyone else should forget the 25th Amendment.
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.
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 short, the votes of the Vice-President and a majority of the Cabinet would be required for involuntary removal, even temporarily.
Thereafter, if the President objects, he will resume the Presidency unless within four days the Vice-President and a majority of the Cabinet submit to the Senate and the House their written declaration that the President is “unable to discharge the powers and the duties of his office”. Within 48 hours Congress shall assemble to decide the issue. If they do not uphold the removal of the President by a two-thirds vote in each house within 21 days, the President (here Trump) would remain in office.
Trump would in all likelihood fight 25th Amendment removal, however temporary.
Conceivably, particularly after the election, if he loses, he might not oppose Vice-President Pence, which could jeopardize his hopes and plans to get a pardon from him.
The votes required to uphold involuntary removal–two-thirds in each house–could probably never be attained. This likelihood might well affect the willingness of cabinet members to initiate the removal process in the first place.
The only feasible path to Trump’s removal before January 20, 2021–or afterwards if he is declared the winner of the November 3 election, therefore, is impeachment.
More than ample grounds for impeachment exist. These need not be related to incapacity.
The House Democrats should have their staff quietly prepare draft articles of impeachment, on an urgent basis, if they haven’t done so already. These could serve as a deterrent to any attempts to seize power or block the proper operation of electoral processes.
If Trump were to engage in any such activity, the House could quickly approve the draft articles of impeachment and send them to the Senate.
However, The Democrats would not want to distract attention from the election by doing so prior to November 3, 2020–except in the most extraordinary of circumstances.
After the elections, if Trump does anything crazy, the House can then impeach him. In the Senate, the votes of only 19 or 20 Republican Senators would be required to remove him from office. If the Democrats win the Senate, the number could be lower once the Senate is convened on January 3, 2021. If Trump does something really crazy, these votes could materialize. If they do, they could make a visit to the White House.
Forget the 25th Amendment. It is a dead end in terms of effective action. At this juncture, only effective actions will count.
The Trenchant Observer