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Explaining the 25th Amendment, experts say it likely won't remove Trump from office

Donald Trump
Posted at 11:37 PM, Jan 07, 2021
and last updated 2021-01-07 23:37:05-05

BUFFALO, N.Y. (WKBW) — Several lawmakers, including NY-26 Congressman Brian Higgins, Senate Minority Leader Chuck Schumer, and House Speaker Nancy Pelosi, are calling for the 25th Amendment to be used to remove President Donald Trump from office.

Vice President Mike Pence and a majority of Trump's cabinet would have to declare Trump unable to execute the powers of the presidency.

“It’s an appeal right now to members of the cabinet to attest to Trump’s incapacity to execute the office,” said Jacob Neiheisel an Associate Professor of Political Science at University at Buffalo.

Under Section 4 of the amendment the vice president and a majority of the president's cabinet can declare him "unable to discharge the powers and duties of his office." Pence would become the acting president.

“It’s been utilized, but certainly not to my knowledge the section that everyone seems to be pointing to right now, at least not in this way,” Neiheisel said.

Other sections of the 25th Amendment were invoked when Richard Nixon resigned and when presidents underwent medical procedures.

Even if the 25th Amendment is invoked, however, the president can write a letter saying he is fit for office. He would remain president.

The vice president and cabinet would then have four days to send a letter to congress saying the president is unfit to serve. A two-thirds vote in both the house and senate would be needed to remove a president.

There are other timeline requirements for the process.

Below is the full text of Section 4 of the amendment. The second paragraph describes the steps taken after a president says he is fit to remain in office.

Section 4

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 department 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.
National Constitution Center

“It’s not clear to me that any of this would have time to unfold,” said Neiheisel.

Higgins is co-sponsoring impeachment resolutions, the other avenue some lawmakers said they will take if the 25th amendment is not used.

Trump's impeachment proceedings last year lasted nearly three weeks.

The riots and destruction at the U.S. Capitol could lead to more support for a second impeachment, but Neiheisel said it would likely not be enough to convict him.

“I would say it’s likely he’s going to serve out the remainder of his term," Neiheisel said. "I think that all the mechanisms available are likely going to take too much time and likely don’t have the kind of support that would be necessary to move them forward.”