‘Acting President Pence’? 25th Amendment can rein in Trump even without removing him from office

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The calls are growing louder for President Trump to be stripped of his office in the wake of the invasion of the U.S. Capitol by a mob that had been encouraged to violence by Trump’s speeches and tweets raising false allegations of election fraud.

On Thursday, Rep. Adam Kinzinger, R-Ill., became the first GOP lawmaker to join Democrats like House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer in calling on Vice President Mike Pence to invoke the 25th Amendment to remove Trump from power.

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Vice President Mike Pence speaking in Georgia on Monday. (Megan Varner/Getty Images)

“I think the threat of this is changing [Trump’s] behavior,” said Harold Hongju Koh, professor of international law at Yale Law School. As part of the school’s Peter Gruber Rule of Law Clinic, Koh and a group of law students released a guide to the 25th Amendment. The wording of the amendment, which provides for the vice president to assume power as acting president — stripping Trump of his authority but leaving him nominally in office — “gives Pence a lot of political leverage in a conversation with Trump,” Koh said. “He could say to him, ‘If you don’t get in line, we can trigger this in an hour.’”

Trump’s video statement issued on Thursday evening, calling for “healing and reconciliation” and acknowledging (albeit grudgingly) his loss, may reflect a recognition of his increasingly tenuous position. But although he admitted for the first time that “a new administration will be inaugurated on Jan. 20,” he stopped short of mentioning President-elect Joe Biden by name, and his call for reconciliation lasted only until Friday morning, when he tweeted that he would not attend Biden’s inauguration. (Biden later said he didn’t want him there.) Koh compared Trump’s behavior to that of a child in time-out: If he behaves, he’ll get his toys back. “He has to toe the line. That doesn’t mean that he’s actually absorbed the message. I’m sure he’s fuming,” Koh said.

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President Trump at a rally for Georgia Sens. Kelly Loeffler and David Perdue in Atlanta on Monday. (Elijah Nouvelage/Bloomberg via Getty Images)

Leaks from the White House describe a president increasingly irrational, divorced from reality and prone to fits of rage. Pelosi called the chairman of the Joint Chiefs of Staff, Gen. Mark Milley, to urge him to intervene if the president was on the verge of doing something dangerous, such as launching a nuclear attack.

Section 4 of the 25th Amendment, which was ratified in 1967, addresses the involuntary removal of a president from office. It has never been invoked. It requires, Koh said, “the vice president plus eight heads of executive departments [to] send a letter in which they say the president is unable to discharge the powers and duties of the office.”

There are currently a total of 15 heads of executive departments — comprising Cabinet secretaries and a few other top officials — so eight members would constitute a majority. Koh clarified that as members of those executive departments resign, as Betsy DeVos and Elaine Chao did on Thursday, their replacements would be authorized to act. (Not counting replacements for DeVos and Chao, there are three acting Cabinet secretaries — of Defense, Justice and Homeland Security — who have not been confirmed by the Senate.) The signed letter would instantly strip the president of his powers and could happen within an hour. “I don’t think it’s an accident that DeVos and Chao are resigning. I don’t think they’ll want to take a stand if asked to sign a 25th Amendment letter,” Koh said.

Next steps: The president would have an opportunity to respond. If he disagrees and insists he is able to do his job, the vice president and those eight heads of executive departments have four days to decide whether to send a letter to the speaker of the House (Democrat Nancy Pelosi) and the president pro tempore of the Senate (Republican Chuck Grassley). Both houses of Congress would have 21 days to debate and vote. Koh pointed out, “Normally, for the whole process to play out takes at least 28 days. Here, we’re at the very end of Trump’s presidency.”

But if the concern is keeping Trump from starting a war, the whole process wouldn’t have to play out, Koh said. Once the 25th Amendment is invoked, Pence would become acting president and assume the powers of the presidency. “Trump would be the president without powers,” Koh explained. “In other words, he would serve as president till his term expired, but he couldn’t have access to the powers of the presidency. He couldn’t veto any bill, he couldn’t sign legislation or anything like that. He couldn’t make appointments, he couldn’t pardon people. [Pence] has a real constitutional tool that he can use.”

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