Removal of President Trump: Forget the 25th Amendment

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Posted By: James Rowles October 8, 2020

To remove President Donald Trump from office, whether for mental or physical incapacity, Democrats and everyone else should forget the 25th Amendment.

See 25th Amendment, Section 4

Section 4

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

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About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, Dr. Rowles has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. Dr. Rowles speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.=LL.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, Dr. Rowles has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on some the best articles that have appeared in the blog.