It is now clear that American democracy is too much at risk if Donald Trump remains president for the two weeks before Joe Biden’s inauguration. There is a quick way to remove him quickly, if there’s a will—invoking the 25th Amendment.
Trump’s behavior on Wednesday—his incitement of violence, his expression of “love” for the insurrectionists who stormed the Capitol, his continued propagation of the lie that his “sacred landslide election victory” was stolen—could justify his ouster.
In an astonishing statement, released hours after the rioting, the National Association of Manufacturers—a leading group of big business leaders that has enthusiastically supported Trump in the past—stated, “Vice President Pence … should seriously consider working with the Cabinet to invoke the 25th Amendment to preserve democracy.”
Some members of Congress are calling for the amendment to be invoked. According to CBS News, some of Trump’s Cabinet secretaries are discussing it as well.
Under Section 4 of the 25th Amendment, the president can be removed from office if the vice president and a majority either of the Cabinet secretaries or of Congress declare in writing that he is “unable to discharge the powers and duties of his office.” Upon delivery of this declaration to the speaker of the House and the president pro tempore of the Senate, the vice president “shall immediately assume” the office of “Acting President.”
Many have interpreted unable literally—for instance, if the president is in a coma. This seems a reasonable reading at first glance, as the amendment’s other sections deal with succession in case the president dies. However, a closer reading indicates this is not the case. Section 4 goes on to spell out what happens if the president protests the invoking of the 25th Amendment and claims in writing “that no inability exists”—something he could not do if he were literally disabled.
In that instance, the ousted president would “resume the powers and duties of his office”—but then the vice president and the majority of Cabinet secretaries or Congress could retransmit their declaration of the president’s inability to perform his duties. At that point, the president’s ultimate removal would require a vote by two-thirds of the House and the Senate.
Two-thirds of senators are also required to convict an impeached president. But the rules for impeachment and conviction also require hearings and a trial. There is no such requirement in the 25th Amendment; it could be processed very quickly.
Ordinarily, it would be unlikely that such a large majority of legislators could be mustered to throw out Trump. But if the instigators of his ouster are Vice President Mike Pence and some Trump-appointed Cabinet officers—rather than Democrats like Nancy Pelosi and Adam Schiff—the dynamic could shift substantially.
Already, Trump seems to be out of the picture. In a statement announcing the deployment of National Guard troops to the Capitol, acting Secretary of Defense Christopher Miller said that he and the chairman of the Joint Chiefs of Staff had consulted with the vice president and top congressional leaders; he said nothing about talking with the commander in chief—i.e., with the president. Similarly, when Pelosi said that Congress would reconvene later on Wednesday evening, to resume the process of ratifying electors (which was disrupted by the rioting), she too said she had sought the advice of Pence—nothing about talking with Trump.
Has Pence already, at least de facto, assumed the duties and powers of the president? Where is Trump? He has not been seen or heard from since the frightful video tweet in which he told the insurrectionists to go home (but also told them “we love you” and called them “special”) and a later written tweet justifying the rioters’ behavior. (As a result of this tweet, Trump’s Twitter account was suspended for 12 hours.)
Meanwhile, Trump is losing favor among Republican lawmakers, who were rushed to an undisclosed location when the rioters—after being whipped up by Trump at a nearby rally—crashed through U.S. Capitol Police lines, broke windows, and occupied the House and Senate chambers. Before the evacuation, Congress was taking up objections to at least three states’ electoral votes for Biden as president.
At the start of the day, only a dozen Republican senators, though more than 100 in the House, were said to favor these objections. Pence, the most doggedly loyal of vice presidents, reportedly told Trump on Tuesday that he had no legal authority to overturn the results of the election unilaterally. When the session began, the Senate’s top Republican, Mitch McConnell, spoke eloquently against the objections, arguing that Biden had won the election, that Congress has no power to overrule the votes of citizens and states, and that, if the objections were heavily pushed, the Electoral College might be abolished—a step that would make it nearly impossible for Republicans to win the White House in the future—and, in which case, American democracy might be fatally damaged.
In short, a large number of Republicans might be calculating that further association with Trump is not in their long-term interest—especially if he continues to rouse the most violent of his followers.
Is it really possible that Pence invokes Section 4 and that two-thirds of the House and Senate go along? Probably not—unless, maybe, Trump continues to incite the mob, and he’s certainly inclined to do just that.
In his four years as president, especially in the last couple weeks, and even more in the last 24 hours, Trump has been his own loudest champion but also his own worst enemy. His loutish, self-pitying paranoia—blaming all his failures on various foes, real and imaginary—led, in good part, to his defeat in the election and to his party’s defeat in the Georgia runoff. He will never admit his role in these defeats, just as he told his mob of supporters at Wednesday morning’s rally that he will “never concede” the defeats themselves.
If Trump quiets down, or if his minders can keep him clamped down, he may last another two weeks in the White House—though the incidents of Jan. 6 will wreck his already tarnished legacy. But if Trump keeps inciting the Proud Boys and other wannabe militants to further acts of resistance, some in the GOP may well take up the call to cut short his already short tenure.
At least they should.