On the eve of making Donald Trump the first twice-impeached president in American history, the Democratic House majority attempted a clever workaround: passing a resolution exhorting Vice President Mike Pence to invoke an obscure constitutional provision for dealing with presidential disability to remove Trump himself.
The 25th Amendment was ratified in the aftermath of John F. Kennedy’s assassination in order to clarify presidential succession and establish continuity of government in the event that a sitting president became incapacitated. It normally involves the temporary, voluntary transfer of power to the vice president during presidential colonoscopies and other medical procedures involving anesthetics. But it also lays out a process for the vice president and Cabinet to deal with situations where the president can’t transfer power in advance.
Under Trump, there has been an appetite for using the 25th Amendment as an alternative to impeachment. The vice president and a majority of the Cabinet simply have to declare the president unable to discharge the duties of his office and, voila, he is gone. No lengthy Senate trial, no need to appoint House impeachment managers, no fuss, no muss. And the president’s party gets to take the lead.
Pence declined the Democrats’ generous offer to test this theory in lieu of a second impeachment vote. But the House resolution gets Congress’s role in the 25th Amendment ass-backwards. Lawmakers are not involved in initiating this process. They are empowered to resolve the inevitable conflict that would arise when Trump asserts that he is, in fact, still capable of performing the duties of the presidency.
The trouble with this is that the threshold for removing the president is higher under the 25th Amendment than it is through impeachment. It would take a two-thirds majority of both houses of Congress to keep Pence in place as acting president over Trump’s objection. The House can impeach with a simple majority, though two-thirds of the Senate is required for conviction and removal.
If Congress has the votes for the 25th Amendment, then it has the votes to impeach and convict. No novel new interpretation of the Constitution is required to remove Trump from office. And impeachment would seem like a better option for adjudicating whether the President is responsible for inciting a mob to attack the Capitol while Congress was certifying the Electoral College results than the theory that the president must have finally become too crazy to serve after nearly four years in the White House.
Unless, of course, the goal is to note vote at all. Congress can take up to three weeks to vote on the matter, per the 25th Amendment. Trump only has a week left in office. The only reason this would be a better strategy for urgently removing Trump is if Pence invoked the 25th Amendment and Congress simply ran out the clock as the president’s term expired.
Maybe the fact that the vice president and the Cabinet — the president’s hand-picked team — have to make the initial finding of unfitness is a better safeguard against future 25th Amendment abuse than congressional supermajorities. But Congress demanding Pence use the 25th Amendment as a backdoor impeachment for the first time in history and then abdicating its actual constitutional role in the whole process seems like a risky precedent to set.
The Democrats aren’t the only ones playing impeachment games, of course. If Senate Majority Leader Mitch McConnell truly believes, as has been reported, that Trump committed impeachable offenses and should be convicted, he might schedule the trial before Democrats retake the Senate majority. At this writing, that is not the current plan.
Some lawmakers wanted to impeach Trump before he was even sworn in and now want him removed without a real, binding congressional vote. Others want to potentially impeach him after he has already left office, so as to ban him from running in 2024.
What happened at the Capitol last week was deadly serious. What is happening there now in response seems decidedly less so.
W. James Antle III is politics editor of the Washington Examiner.
