Removal of the President Under the 25th Amendment

Common Law Writ and Wax SealUnder the 25th Amendment, a sitting president can be removed if “unable to discharge the powers and duties of his office,” for example, because of serious illness, by 2/3rd’s votes in the House and Senate.

While we might think a Republican congress would never do this to a president elected as a Republican, their enlightened self interests may dictate otherwise. Simply stated, Donald Trump likely is harming Republican chances for the 2018 congressional mid-term elections, including loss of their slim two-vote margin in the Senate.

Republicans are not in good shape now and those paying attention know it. They actually lost two seats in the Senate and six in the House (even though gerrymandered in Republican favor) in the November elections.

Nor is Trump in good shape. He won the election with only 46% of the popular vote, behind Hillary Clinton by almost three million votes. A significant majority of the nation (54%) voted against him.  His net approval rating upon taking office was an historic low . . . only 45%. . . and then dropped eight net percentage points to 42% in his first week on the job.

After only one week in office, he obsessed over an imagined 3 to 5 million vote fraud claim, not taken seriously even in his own political party. He then tried to push though a broad immigration ban sparking protests in the hundreds of thousands, a Justice Department decision not to defend the plan (the Acting Attorney General was promptly fired), and almost immediate federal court injunctions. This conduct likely will increase, not abate, as the midterms approach.  He will poison them.

The 25th Amendment process is straightforward. You don’t have to go to court. Unlike an Article II, Sec. 4, Impeachment requiring proof of “Treason, Bribery or High Crimes and Misdemeanors,” you don’t have to prove that the president is mentally ill, whether as a sociopath or border-line psychopath. It’s all matter of votes and who wants to survive.

Step One. The vice-president and a majority of the cabinet inform the House and Senate that the president is “unable to discharge the powers and duties of his office,” at which time the vice-president automatically becomes “acting president.”

Step Two. The president then has the option to inform the House and Senate that he is “able to perform his duties” and, if so, he resumes his office as president.

Step Three. If the vice-president and a majority of the cabinet within four days confirm their determination to the House and Senate, the vice-president automatically becomes the acting president. (The Republicans like Mike Pence a lot more . . . he’s their guy, not the incumbent.)

Step Four. The House and Senate must then meet within 21 days and decide the matter. It takes a 2/3rds vote in each house (290 votes in the House and 67 votes in the Senate) to remove the president. If the 2/3rd mark is reached, the vice-president continues as acting president until the next presidential election.

The vote count may get within striking distance if distractions from the White House continue, already including Democrats, Independents, the House Freedom Caucus and cautious Republicans standing for re-election in 2018. (Of course, normally the serious threat of removal would induce resignation for health or family reasons.)

Republicans are pragmatic. They’re survivors and are totally unwilling to “leave the island.” They know that Trump can blow it for them in 2018, only 22 months away . . . that’s like next month on a house or senate campaign clock.

In addition, they don’t need Trump to push a Republican agenda. They already control the House and Senate and they’d get Pence as their Acting President. A good trade from their perspective.

Just how serious is a Republican-driven 25th Amendment scenario?

Former George W. Bush speech writer David Frum recently offered a little advice . . .

“When meeting with the people who have the power to remove you under the 25th Amendment, try not to say anything glaringly insane.”

Author: Dan Cofran

I am a lawyer. After 40 years experience in corporate and commercial litigation and transactions, I now limit my practice to Business Dispute Mediation. I have a life long interest in politics, having served as an city councilman for eight years in the 1980s and 1990s. I focus my legal readings on the U. S. Constitution and its history.

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