As President Trump finishes his fourth week in the White House, a number of opposition lawmakers, political commentators, and self-styled members of The Resistance are discussing ways in which the president might be quickly removed from office.
Some have talked about impeachment for quite a while, even before the Trump inauguration. But that could take a long time, and it would require Trump to commit, and then be charged with and convicted of, "treason, bribery, or other high crimes and misdemeanors" to meet the Constitution's standard for removing the president from office.
That's too long term, say some. So now, there is increasing discussion of the 25th Amendment. The 1967 amendment, which has its roots in the Kennedy assassination, covers ways to replace an incapacitated president. Up until now, its most-discussed provision was a measure by which the president could inform the Speaker of the House and the President pro tempore of the Senate that he, the president, can no longer perform the duties of office, whereupon those two officials would declare the vice president the acting president, until such time as the president informed them that he was again able to perform his duties. The amendment has been used or considered for cases in which the president underwent surgery or was under anesthesia.
Now, however, The Resistance is looking at Section 4 of the 25th Amendment, which would allow the vice president and a majority of cabinet officers, or the vice president and a majority "of such other body as Congress may by law provide," to declare the president unable to serve, making the vice president the acting president. If there is a disagreement — say, the president believes he is able to serve and the vice president and a majority of the cabinet or the other body don't — then Congress decides who will be president. Here is the text of that portion of the amendment:
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.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless 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 within four days 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Now, lawmakers are talking about the amendment. Democratic Rep. Jackie Speier, a member of the House Intelligence Committee who on Thursday evening told the BBC that the Trump-Russia affair is "as big as Watergate, if not bigger," said on Friday that the 25th Amendment might be triggered if Trump doesn't "act presidential."
"The 25th Amendment is there to provide a backstop if in fact the president becomes incapacitated," Speier told CNN Friday afternoon.
"Do you believe he is incapacitated?" asked anchor Brianna Keilar.
"Well, I think that we have got to be very careful," Speier said. "He needs to start acting presidential. He needs to start recognizing that as president you don't go around and shoot down the media, as if it's some kind of a game you're playing. You don't take on people saying nasty things about them. You don't take foreign leaders and hang up the phone with them or besmirch them, as he has with some of the European leaders. I mean, he has got to get a grip. And so the 25th Amendment is there if a president becomes incapacitated.
Speier went on to describe the situation after Woodrow Wilson suffered a stroke and Wilson's wife Edith served as something of a de facto president. "I don't think that Melania Trump is in a position to do that," Speier said — an odd remark, given that she was discussing the 25th Amendment's structure of presidential succession.
"You are very serious about this?" asked Keilar.
"I'm serious about conveying to the president that he's got to get serious," Speier answered. "That we have efforts underway around the globe attempting to exploit our dysfunction right now. He's got to act presidential."
Speier is in no way the only person buzzing about the 25th Amendment in these first weeks of the Trump administration.
On Tuesday, Democratic Rep. Earl Blumenauer announced he is forming "a working group to clarify and strengthen the 25th Amendment." "Like many people, I've noticed a renewed interest in the 25th Amendment as we've seen erratic behavior out of the White House," Blumenauer said in a statement. "As I examined the amendment, it became clear that in the case of mental or emotional incapacity, there is a glaring flaw."
That "glaring flaw," Blumenauer explained, is this: What if the president just fires those cabinet officers who believe he is no longer fit to serve? What then? Blumenauer wants to clarify how the "such other body" passage in the amendment would work. And with Donald Trump in office, he wants to start now.
A growing number of pundits seem to agree. In a February 10 column, the Washington Post's Kathleen Parker noted that it would take two years, until the election of a Democratic Congress, before Trump could be impeached and removed. But "with luck," she wrote, "there's a chance we won't have to wait two long years," because the drafters of the 25th Amendment anticipated "circumstances warranting a speedier presidential replacement."
"Aren't we there yet?" asked Parker.
Post blogger Jennifer Rubin has mentioned the 25th Amendment repeatedly, noting on Feb. 15 that Trump has "rais[ed] questions about his own mental stability and the potential for his removal from office (by impeachment, resignation or the 25th Amendment.)"
The day before, Rubin wrote that, "If [Trump] does not drastically and immediately alter his conduct and approach to the job, lighthearted banter about impeachment or activation of the 25th Amendment will become markedly more serious."
On Feb. 6, Rubin wrote, in a column on what is up and what is down in Trump's Washington: "UP: Americans who now know what is in the 25th Amendment." And on January 25 — just five days into Trump's presidency — Rubin wrote, generously, that "We are not calling — yet — for invocation of Section 4 of the 25th Amendment."
On Feb. 9, Time magazine just happened to publish a piece headlined "The 25th Amendment at 50 and What Happens if the President Can't Do His Job," noting that "the amendment has become newly newsworthy in recent weeks."
On Jan. 31, the New York Times' David Brooks approvingly quoted Johns Hopkins professor and former George W. Bush State Department official Eliot Cohen, who wrote on January 29 that, "It will not be surprising in the slightest if [Trump's] term ends not in four or in eight years, but sooner, with impeachment or removal under the 25th Amendment."
In Cohen's article, in The Atlantic, he wrote that Trump's presidency "will probably end in calamity," with the possibility of an end hastened by the 25th Amendment. "The sooner Americans get used to these likelihoods, the better," Cohen wrote.
Most of the 25th Amendment talk began at least a few days after Trump's inauguration. But David Frum, the former George W. Bush speechwriter, brought up the subject on Nov. 16 — eight days after the election. In a tweet that morning, Frum wrote: "Twenty-Fifth Amendment to the Constitution. Article 4. We're all going to be talking a lot more about it in the months ahead."
Indeed, months later, on Jan. 23, when Trump, during a get-together with congressional leaders, reportedly briefly mentioned his belief that millions of people voted illegally in the election, Frum tweeted: "Pro tip: when meeting w the people who have the power to remove you under the 25th amendment, try not to say anything glaringly insane."
And now Democratic members of Congress are forming a group to "clarify and strengthen" the 25th Amendment. What Blumenauer and other may have in mind is to use the "such other body as Congress may by law provide" passage to create a new way to oust the president.
If the cabinet is the group required to go along with the vice president and decide that the president cannot perform his duties — well, every one of those cabinet heads was appointed by the president. They might be loyal to the man who gave them their jobs, and therefore choose to keep him in office.
Blumenauer anticipated that problem in his statement announcing the working group. "The amendment allows Congress to select some 'other body' other than the cabinet to determine whether the president is capable of discharging the duties required, and remove him or her if necessary," the statement said. "Yet, this body is undefined, and there is no guidance for how it should operate. After examining the issue, Blumenauer believes living former presidents and vice presidents could constitute the body."
So what if Trump's fate depended on a majority vote of a group composed of Barack Obama, Joe Biden, George W. Bush, Dick Cheney, Bill Clinton, Al Gore, George H.W. Bush, Dan Quayle and Jimmy Carter? Blumenauer and The Resistance would probably like their chances.
Some Trump supporters will undoubtedly dismiss this as crazy talk. But the one thing The Resistance has shown is that, even though it was consistently wrong about Trump's chances in the election, it is more determined than ever to prevail over him eventually. And the 25th Amendment does give Congress the power to designate an "other body" to decide, which means the Constitution would not have to be amended to make such a change.
Yes, there are hurdles after hurdles in such an effort. The vice president would have to be on board. Congress would have to pass an "other body" measure by a veto-proof majority. It seems impossible, and indeed it might be. But that won't stop The Resistance from trying.