Beginning certainly with the George W. Bush administration, Republicans have been very interested in pushing the boundaries of lesser known, unused areas of the Constitution and federal law. Was V.P (and President of the Senate) Dick Cheney a member of the Executive Branch, the Legislative Branch, or neither? What if the Senate simply refused to “advise and consent” on a Supreme Court nominee? Could Congress eliminate recess appointments by permanently staying in session with pro-forma sessions? What happens if we don't raise the “debt ceiling”?
With that background in mind, I realized a likely end to the Trump presidency — not through impeachment, but by removal under the 25th Amendment to the Constitution. The text of the 25th Amendment is provided below, and it is the never-before-invoked Section 4 that likely may provide for irresistible uncertainty and intrigue. In short, Vice President Pence and the Cabinet can begin a process to remove President Trump any time they conclude he “is unable to discharge the powers and duties of his office”:
Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Section 3. Whenever the President transmits to the President pro temper of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
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.
The 25th Amendment was adopted in 1967 to clarify the mechanics of Presidential and Vice Presidential succession — including in the event that the President was “incapacitated.” (For example, President Woodrow Wilson was incapacitated by a stroke for a good portion of the end of his presidency, with his wife and others secretly running the government.)
The 25th Amendment removal process was only seriously (and largely unknown) considered once: then Vice President George HW Bush and the Cabinet deliberately considered sending a declaration removing President Ronald Reagan for mental incompetence. Unaware that he was being so evaluated, Reagan nonetheless escaped the attempt — although some family members and clinicians now believe that Reagan was suffering from early onset Alzheimer’s while still in office.
Consider that short example, look at the language of Section 4, and ask yourself if this is an unlikely scenario? The procedure is relatively quick and can occur whenever. The process is started (not completed) by a small circle of powerful people: the VP and the Cabinet. “High crimes and misdemeanors” are not required, and an extended process of impeachment vote and Senate trial is avoided. Plus, Mike Pence and a newly appointed VP would be set to run as incumbents.
What, in my opinion, would lead to this happening? Two foreseeable conditions: (i) a President Trump already has given a Republican Congress much of what it wanted, and (ii) an unpopular, unnervingly unstable President Trump is interfering with some serious interests — perhaps misuse of military or intelligence actions in a way that truly threatens destabilizing events. (Or perhaps more cynically, he actually stands in the way of a Republican priority like eliminating SS or Medicare.)
At that point — particularly if it involved erratic national security decisions — Republicans may not be ready with an impeachment case because they will already have excused or covered up such transgressions in pursuit of earlier political gains. Nonetheless, as we have already seen, Trump is likely to continue to supply his opponents with one rich gift — a history erratic, even increasingly erratic, behavior. And that is all that is needed under this theory. Indeed, the argument — stated in somber terms of crisis, with new, salacious details — very likely could find an audience of eager, bipartisan support to get Trump out of that oval office.
For those who consider this too far-fetched, imagine this very plausible scenario: a President Trump mired in 37% approval ratings, erratically lashing out at perceived enemies, having alienated the “establishment,” and having lost the confidence of the military and/or intelligence complex. Perhaps Trump orders some “Wag the Dog” military strikes on top of that? What to do?
And . . . just sitting there, still unused . . . is this 25th Amendment.