Stanford Law’s Michael McConnell on the 25th Amendment and Trump

In the aftermath of the January 6 siege of Congress by rioters and the extraordinary January 2 call in which President Trump repeatedly tried to pressure Brad Raffensperger, the Georgia secretary of state, to “find” 11,779 votes (enough to overturn his defeat in Georgia), questions about the president’s fitness for office have grown louder. Speaker Nancy Pelosi and Senator Chuck Schumer have called for members of the administration to invoke the 25th Amendment and other members of Congress are pressing for another impeachment trial, while business leaders including the National Association of Manufacturers are joining the growing chorus for the president’s removal from office. Here, Stanford Law Professor Michael McConnell discusses the 25th Amendment and Impeachment as potential vehicles for removing the President from office.

Can you briefly explain the 25th Amendment and why the U.S. Constitution was amended some 50 years ago to add it?

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Stanford Law Professor Michael McConnell

The 25th Amendment was added shortly after the Kennedy assassination to specify who would exercise presidential powers when the elected President is incapacitated. The greatest need was in the Woodrow Wilson Administration, when the President suffered a stroke and was debilitated for more than a year. This was hidden from the public, and the public business was conducted by Mrs. Wilson and a White House aide.

There are two key provisions. Section 3 allows the President voluntarily to step aside temporarily. Section 4 allows the Vice President, with the concurrence of a majority of the “principal officers,” meaning the cabinet, to displace a President on grounds of incapacity, and provides a mechanism for resolving disputes if the President resists this.

Who pulls the trigger for the 25th? And does the vice president take over presidential responsibilities right away?

The President initiates the process under Section 3, and the Vice President, with concurrence of a majority of the cabinet, initiates the process under Section 4. And according to the Amendment, the Vice President assumes those responsibilities “immediately” upon notification of Congress of the cabinet vote.

Has it ever been used?

Section 3 has been used twice, for less than a day. Section 4 has never been used.

When is it appropriate to invoke the 25th?

When the President is “unable to discharge the powers and duties of the office.” This refers primarily to physical incapacity, such as strokes or hospitalization, but it presumably would also apply in cases of extreme mental instability.

So it’s very different from impeachment.

The 25th Amendment is not intended to be a substitute for impeachment. It is aimed at incapacity, not bad character or misconduct.

After the events of January 6, with the storming of the U.S. Capitol by Trump supporters, do you think it would be appropriate to enact the 25th? Or is impeachment, if members of Congress deem it necessary, a more appropriate avenue?

The 25th Amendment is the more appropriate avenue only if the Vice President and the cabinet, who are entrusted with this decision, believe that Mr. Trump is deranged or delusional to the point of being unable to exercise the powers of the office safely over the next two weeks. Impeachment is more appropriate if the President’s actions have been a calculated attempt to overturn the election result based on false claims, or to rile up his supporters out of vanity or future ambition—both of which strike me as more likely explanations for his conduct. I suspect congressional leaders are urging the use of the 25th Amendment because this puts the onus for action on someone else.

I personally am in no position to judge the President’s mental health, which would trigger the 25th Amendment, but there is no doubt that inciting a crowd to disrupt the certification of election results is an impeachable offense, and so also is pressuring state officials to override election results when proper forums for adjudicating those claims have rejected them. The single most important principle of constitutional democracy is that we respect the results of elections even when they go against our favored candidates or results.

Could impeachment happen quickly?

Impeachment could proceed reasonably expeditiously, but poses procedural difficulties. The House has power to approve articles of impeachment by majority vote, which Speaker Pelosi could muster even without Republican support. No particular procedures are necessary (though in the past there have always been hearings). There would then be a trial in the Senate, at which President Trump would be entitled to put up a defense. A genuine trial would take some time, but there is nothing in the Constitution that requires the trial to be of any particular length, or to follow the procedures of an ordinary criminal trial. It could probably be done in a matter of days, if Majority Leader McConnell were on board and the Senate unified in support of that course of action. Conviction and removal (and disqualification from future office) would require a two-thirds vote, which means that the impeachment route is only possible with bipartisan support. Many Republicans, including McConnell, have expressed outrage at the President’s actions over the last few days, but whether they would support the drastic step of removal is anyone’s guess.

And how might things progress under the 25th? And is it an easier procedural route?

If Vice President Pence, with the support of eight cabinet members, were to force Mr. Trump to step aside under Section 4 of the 25th Amendment, Mr. Trump would have the right to challenge that displacement. This would trigger a second cabinet vote. If a majority of the cabinet voted again to displace him, the issue would go to Congress, where a two-thirds majority of both Houses would be required to sustain the cabinet’s decision. But here is the kicker: Congress has twenty-one days to act, and in the meantime, the Vice President would continue to discharge the powers of the office as Acting President. President Trump’s term of office ends in thirteen days. Thus, the 25th Amendment is procedurally the easier route, while impeachment is substantively more appropriate.

* After Professor McConnell completed this interview, the Senate Majority Leader issued a memo indicating that the Senate will not be in session for the conduct of business until January 19, which affects Professor McConnell’s discussion of the timeline for impeachment. It also raises the question of whether a President may be removed from office (and barred from future office) after his term expired. Professor McConnell says that “the Constitution is silent on this point, but that a former President very likely is subject to removal.”

Michael W. McConnell is the Richard and Frances Mallery professor of law and director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution. He formerly served as a judge on the U.S. Court of Appeals for the 10th Circuit. His book The President Who Would Not Be King: Executive Power Under the Constitution, was published in November by Princeton University Press.