The 25th Amendment: Can Trump be declared unfit for office?

Calls are growing in the United States for President Donald Trump to be removed from office after he failed to condemn his supporters for storming the US Capitol Building as members met to certify Joe Biden as the country’s next president.

Broadcast network ABC News, citing multiple sources with direct knowledge of the move, reported that some members of Trump’s cabinet were discussing an unprecedented move to invoke Section 4 of the 25th Amendment of the constitution, as several Democratic members of Congress urged Vice President Mike Pence to lead the charge in declaring Trump as “unfit” to remain as president.

“President Trump revealed that he is not mentally sound and is still unable to process and accept the results of the 2020 election,” they wrote in a letter that was signed by all Democratic members of the House Judiciary Committee.

“President Trump has shown time and again that he is unwilling to protect our Democracy and carry out the duties of the office.”

NEW: I am sending a letter with @RepTedLieu and our colleagues on the House Judiciary Committee, calling on Vice President Pence to invoke the 25th Amendment to remove Donald Trump from office after today’s events. pic.twitter.com/5VK8DLTLn4

— David Cicilline (@davidcicilline) January 7, 2021

The Washington Post newspaper’s editorial board also called for Trump’s removal, saying, “every second he retains the vast powers of the presidency is a threat to public order and national security”.

It was a view echoed by The Miami Herald newspaper: “His comments were no mere dog whistle to his marauding posse. This was a full-throated war cry,” the paper said in an editorial.

“With his un-American words and his anti-democratic acts, Trump led this insurrection every bit as much as if he were storming the Capitol himself.”

Trump calls rioters ‘very special’

The assault on the US Capitol by armed supporters of Trump earlier on Wednesday left four people dead and came as the House of Representatives and Senate convened to certify the outcome of the presidential election two weeks before President-elect Joe Biden is sworn in on January 20.

The chaotic scenes followed a pro-Trump rally outside the White House during which the outgoing president, who has refused to commit to a peaceful transfer of power, addressed thousands of supporters and repeated unfounded claims that the election was stolen from him.

Trump later called on his supporters to go home, but also praised them as “very special”, while professing his “love” for them.

Jotaka Eaddy, a political consultant and founder of Full Circle Strategies, said that Trump’s actions have raised real questions about his state of mind, and that everything should be on the table right now to prevent him from making more damage to the country’s democratic institutions even if he only has two weeks left in office.

“He has been inciting violence, and he created the platform and atmosphere of violence,” she told Al Jazeera.

Two ways to remove Trump

There are two ways to remove a president from office: Impeachment and the 25th Amendment of the US constitution. In either scenario, Vice President Pence would take over until Biden’s inauguration on January 20.

But with only a few days left before that date, an impeachment would be impossible to complete, which has prompted the call for the invocation of the 25th Amendment.

Previously, Trump was impeached but was not removed from the presidency.

What’s the purpose of the 25th Amendment?

The 25th Amendment, ratified in 1967 and adopted in the wake of President John F Kennedy’s assassination in 1963, deals with presidential succession and disability.

It was previously used by presidents who had to temporarily relinquish power due to health reasons.

In 2002, President George W Bush became the first to use the amendment’s Section 3 to temporarily transfer power to Vice President Dick Cheney while Bush underwent a colonoscopy and was under an anaesthetic. Bush temporarily transferred power again five years later when he had another colonoscopy.

The 25th Amendment was not invoked after President Ronald Reagan was shot in 1981, and while the one-time movie star did temporarily transfer power to Vice President George H W Bush while undergoing surgery to remove a polyp from his colon in 1985, he said at the time that he was not formally invoking the 25th Amendment.

Reagan said that while he was “mindful” of the amendment, he did not believe “that the drafters of this Amendment intended its application to situations such as the instant one”. Bush was acting president for eight hours according to a book on the amendment by John D Feerick.

Section 4

Most attention on the 25th Amendment in relation to Trump has focused on Section 4 because it addresses situations where a president is unable to do the job but does not step down voluntarily.

Under Section 4, Vice President Pence and the majority of Trump’s cabinet would need to declare Trump unable to perform the duties of the presidency and remove him.

According to the rules, Trump could subsequently, at any time, declare that he was no longer disabled and regain his position if Pence and the majority of the cabinet did not contest the assertion within four days.

If the cabinet disputes the president’s declaration, the issue is decided by Congress. If both chambers determine by a two-thirds majority that Trump is incapacitated, Pence would continue to discharge the duties of the presidency.

According to the ABC News report, it is still unclear how far along the cabinet discussion is on the proposal.

Frank Bowman, a constitutional scholar at the University of Missouri, says the history of the 25th Amendment makes clear it was intended for instances in which a president is incapacitated and unable to serve, such as physical or mental illness.

He says there is little to no chance of the amendment being invoked because Pence would be reluctant to do so and because there are strong arguments that Trump is not incapacitated so much as unfit for office.

For his part, political analyst, Eric Ham, said that Congress “needs to respond” to Trump’s action in order to protect American democracy, which he said is increasingly becoming more vulnerable.