The 25th Amendment is back in the news so this bears repeating. Again. The type of event in which you could imagine President Donald Trump’s Cabinet and his vice president engaging in a political mutiny against him and removing him from power using the 25th Amendment would require something like a presidential coma or a disagreement of such epic proportions as to threaten the fabric of the country or its very existence.
It’s hard to imagine.
The amendment was ratified in the wake of John F. Kennedy’s assassination and debilitating illnesses of Dwight D. Eisenhower — and it requires a crisis on that level to be enacted.
In order to remove Trump using the 25th Amendment, a majority of the Cabinet he personally selected, working with his own vice president, would have to agree he was no longer able be President and publicly make that declaration, in writing, and send it up to Congress. That’s the first thing. (Note: Congress could appoint some other body to assess the President’s fitness, but we’re so far in uncharted territory, let’s set that aside for the moment.)
Read the full amendment text at the National Constitution Center’s website. They also have a number of articles on the amendment, some of which raise questions about its text. For instance, it doesn’t use the term “Cabinet officials,” but rather “principal officers of the executive department,” so you can imagine the courts getting involved in a contentious process. And a further side note: the only time the amendment was briefly considered by a President’s staffers was for Ronald Reagan, who staffers thought for a time was “inept and inattentive,” according to a memo at the time. They ultimately moved on from the idea.
The Cabinet’s Brutus knife in his back is not all it would take! Trump would then have the ability to publicly disagree, in writing. Wouldn’t that be something. And if his Cabinet reasserted, within four days, “their written declaration that the President is unable to discharge the powers and duties of his office,” Congress would have to assemble within two days and two-thirds of both the House and Senate would have to vote to remove the President within 21 days. They’re not known for moving quickly, but we’re so far down a rabbit hole at this point.
Republicans — Trump’s party — currently control both houses of Congress. That calculation could change after midterm elections, but it’s virtually impossible for Democrats to get a two-thirds majority in either chamber. Republican lawmakers would have to turn on their own President.
Imagine all of that, for just a second. It’s true that his critics like to question his mental fitness and have fed off recent reports quoting former allies like Steve Bannon, who has since tried to take it all back.
But the jump from the kind of chatter we’re seeing today to a Cabinet mutiny is long indeed.
Multiple members of his Cabinet were touting his fitness this past weekend on TV shows when asked to comment about questions on his mental fitness.
Secretary of State Rex Tillerson: “I’ve never questioned his mental fitness,” he told CNN’s Elise Labott. “I have no reason to question his mental fitness.”
CIA Director Mike Pompeo: “Those statements are just absurd,” he said on “Fox News Sunday.”
US Ambassador to the UN Nikki Haley: “No one questions the stability of the President,” she said on ABC’s “This Week.”
You get the idea. Those are some of the people who would have to turn on Trump. What would that take?
There are a few scenarios that leap to mind (and read the articles there by Brian Kalt and David Pozen for some more context) in which the 25th Amendment could be invoked:
The President was completely and totally incapacitated after a freak medical accident.
The President goes missing, walks off the job or is kidnapped.
In either of these examples, the President would be unable to dispute the action of his Cabinet, so invoking the amendment would just take the Cabinet writing to Congress.
What about something like avoidable, imminent nuclear war? It’s hard to imagine all of this happening quickly enough to be effective. You’d almost need his subordinates to willfully break the law and ignore his order to launch a nuclear attack — or be prepared to — to delay action in the heat of the moment. There could be precedent for that, by the way. Richard Nixon’s defense secretary James Schlesinger later said that in the final days of the Nixon presidency, staffers had been instructed to check with him or then-Secretary of State Henry Kissinger before launching an attack.
Speaking of Nixon, impeachment, the serious idea of which also seems far-fetched at this point with regard to Trump, is written into the Constitution as a more appropriate avenue to remove a President.
So why are we talking about this? For the second time in recent months, reports out of the White House, unconfirmed by CNN, suggest a sort of paranoia about the 25th Amendment.
The first, back in October, was by Vanity Fair’s Gabriel Sherman in an article titled “‘I hate everyone in the White House!’ Trump seethes as advisers fear the President is unraveling.”
The kicker to that story, buried at the end, was about a focus in the West Wing, particularly by Bannon, on the 25th Amendment.
Here’s the passage from that October article:
Several months ago, according to two sources with knowledge of the conversation, former chief strategist Steve Bannon told Trump that the risk to his presidency wasn’t impeachment, but the 25th Amendment—the provision by which a majority of the Cabinet can vote to remove the president. When Bannon mentioned the 25th Amendment, Trump said, “What’s that?” According to a source, Bannon has told people he thinks Trump has only a 30% chance of making it the full term.
Bannon was already out of the White House when that story was written. He also features prominently in “Fire and Fury: Inside the White House,” the new sensational book by Michael Wolff, who told NBC News on Sunday the 25th Amendment is talked about a lot in the White House.
“This is, I think, not an exaggeration, and not unreasonable to say, this is 25th Amendment kind of stuff,” Wolff said on “Meet the Press,” adding that White House staffers brought it up “all the time.”
“They would say … we’re not at a 25th Amendment level yet,” Wolff said.
Yep. He’s right. Unless there’s some mass conspiracy nobody in the public knows about, we’re a long, long, long way off.