- - Tuesday, January 12, 2021

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America. Click HERE to read the series.


The “To the Republic” series has primarily addressed the original Constitution rather than the subsequent amendments. However, there has been much discussion of the suddenly popular 25th Amendment during the Trump administration, particularly since last week’s riot at the Capitol.

For instance, many recall news reports of Rod Rosenstein, the former deputy attorney general from the early years of the Trump administration, offering to wear a wire to a meeting with President Trump. His presumed goal was to make a record of purportedly illegal orders given by the president to pave the way for invocation of the 25th Amendment.

Nothing ever came of that. But now, a week before the end of Mr. Trump’s term, we are hearing calls from no less than the speaker of the House, among others, to use the 25th Amendment.

The 25th Amendment was ratified in 1967 in the wake of the assassination of President Kennedy due to concerns regarding the lack of precision in the Constitution regarding succession to the presidency or vice presidency in the event the president or vice president resigned, died, became sick, or was otherwise incapacitated. The drafters were also inspired by other instances of more long-lasting presidential disability that had largely escaped public notice when they occurred, including President Wilson’s incapacity after a stroke.

Therefore, supporters of the amendment also sought to deal with the specter of long-term inability to govern, not just the very temporary passing of the torch to the vice president while the president undergoes a quick surgical procedure. Indeed, Presidents Reagan and George W. Bush sent letters to Congress invoking the amendment on themselves for several hours during scheduled medical procedures when they would literally be “incapable” of discharging the duties of the office because of anesthesia.

Recent discussions of the amendment concerning the potential removal of Mr. Trump are found in Section 4, which reads as follows:

“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. (emphasis added).

This section has never been invoked. A cursory read might lead one to believe that if the vice president desires to assume the presidency without the trouble of being elected, he could simply gain the confidence of half of the Cabinet and then vote to eject the president.

There has never been any serious consideration given, let alone an actual attempt made, to remove a sitting president against his will.  Congress has never designated “such other body” to make this determination, so it clearly rests with the vice president and principal officers in the Cabinet.

 It is worth noting that there is even uncertainty over who might be “principal officers.” Some members of the Cabinet — such as the national security adviser and administrator of the Environmental Protection Agency — are likely not considered “principal officers.”  The secretaries of state, defense and treasury, for example, would surely be included.

Could such an effort really succeed? It certainly depends on the meaning of the term “unable to discharge” the duties of office.  Because it has never been utilized before and there is no definition that has ever been applied, the vice president and the principal officers are, to some extent, free to decide for themselves.

If the principal officers meet with the vice president to discuss invoking the amendment, they should consider the context in which it was crafted. Since it was created partially in response to a presidential assassination and has been used only by presidents who voluntarily invoked it, it seems clear that it was neither designed nor intended to facilitate a soft coup nor to be used to punish an unpopular president.

The real danger — in this circumstance especially — is the precedent that removal under the amendment would create. If successful in this instance, any president who was disliked by the Cabinet could be quickly removed. The four-year term of a president would be changed into an “at will” position that depended upon the president remaining in the good graces of his Cabinet.

From an administrative and practical perspective, such a precedent would encourage presidents to use only “acting officials” in the Cabinet since “principal officers” must be confirmed by the Senate.  An argument could be made that acting officials would have no constitutional authority to remove the president.

At the same time, such a precedent might cause presidents to choose only staunch loyalists over all others out of fear of removal, leading to a less talented Cabinet or worse, our very own nomenklatura.

In short, once used, the removal element of the amendment could be abused by a rogue coterie acting in bad faith. That is why it is so important that our leaders be people of good character and that our social-political traditions maintain fidelity to unwritten but important traditions and standards of conduct.

Some currently are calling for use of the 25th Amendment not due to the storming of the Capitol allegedly at Mr. Trump’s behest, but rather because of his supposed mental instability. Some cite fear that the president has become “unhinged,” and that his words and deeds indicate that he has lost contact with reality, impairing his ability to lead the country in a stable manner, such that he cannot be trusted with the nuclear launch codes.

If you believed that diagnosis, then immediate removal from office would be necessary to safeguard the country, not to punish wrongdoing. In fact, that is the strongest argument for using the amendment.

But the argument fails. While Mr. Trump’s political enemies have sought to oust him from the inception of his presidency on that basis, his behavior has not significantly changed since he took office – a point that his adversaries themselves note.

If, conversely, the actions of Mr. Trump were so heinous that they require punishment and removal, then the 25th Amendment is not the correct mechanism.

In the event punishment is called for, impeachment is the appropriate response. The basis of that process is what it has always been — the presence of high crimes and misdemeanors. While the impeachment bar has certainly been lowered based on the first impeachment of the president, impeaching him based upon “incitement” would lower it even further and set an even more dangerous precedent than the first impeachment.

This is particularly true when his conduct and speech did not rise to a level anywhere near what a court of competent jurisdiction would consider criminal conduct.

The main rationale for those urging use of the 25th Amendment is that it can be accomplished expeditiously, literally in a day or two.  Impeachment, of course, takes much more time. With only a week remaining in Mr. Trump’s term, it seems superfluous, vindictive, and more likely to inflame, rather than heal, the divisions in our country.

⦁ David S. Jonas is a partner at FH+H Law Firm in Tysons, Virginia. After retiring as a Marine Corps officer, he served as general counsel of two federal agencies. He teaches as an adjunct professor at Georgetown University Law Center and the George Washington University Law School. 

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