As House Speaker Nancy Pelosi directly asks Vice President Mike Pence to invoke the 25th Amendment to remove Donald Trump from power, here’s a brief and perhaps soon-to-be-necessary explanation of what that would entail.
The 25th Amendment to the Constitution was ratified in 1967 in an attempt to clarify the path forward if a president dies in office, resigns, or is incapacitated. It was most recently used during the George W. Bush presidency when Bush transferred power to his vice president, Dick Cheney, during the brief period of time Bush was sedated for a colonoscopy.
But the relevant part of the amendment in today’s crisis is Section 4, which outlines the remedy if a President is incapacitated by unforeseen circumstances:
“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.”
Short version: Mike Pence can, with the assent of the majority of Trump’s current Cabinet members, deliver to Congress a letter declaring Trump unable to fulfill his duties. Pence then assumes presidential duties immediately.
It does not, of course, end there. The full text of Section 4 states that the president, who for the purposes of argument we shall presume is still the seditionist and traitor Donald Trump, may then submit to Congress a claim that Mike Pence is a liar and he can still fulfill his duties, upon which the clock starts ticking on a re-transferal of power back to Trump.
Pence and Trump’s Cabinet have four days to deliver a second written assertion that Trump is unfit. If they do so, the question goes to Congress for debate and a vote; otherwise, Trump regains power at the end of those four days. A two-thirds vote in favor of the Cabinet’s position transfers powers to the vice president indefinitely; in any other case, the president regains his full powers.
In practice, it would be yet another constitutional crisis during a period in which the Republican Party has fomented a dozen others. Perhaps the largest danger would be Trump ordering punitive or even violent action against his own officials after learning that they were even contemplating invoking the Amendment’s power. The second largest danger is that Republican allies would indeed vote to keep Trump in power, thus giving positive indication to Trump that he is allowed to go even further to invalidate the election and re-seize power.
There is debate as to whether “incapacitated” was intended to mean “out of his mind and a clear and present danger to the nation.” The argument is irrelevant; Congress will decide whether Pence’s assertion is valid by vote.
Note that the president cannot fire the vice president. There is no mechanism to do so. Also note, however, that only those officers confirmed by the Senate are considered valid signatures—which could be its own crisis because Trump has hollowed out his Cabinet, replacing numerous heads with “acting” temporary officials. Trump could in theory remove as many as needed to thwart Pence’s attempt.
All of this, then, relies on Vice President Mike Pence agreeing that fomenting acts of sedition amounts to unfitness for office. Though widely described to be upset at Trump’s actions, perhaps in largest part due to the physical danger it put Pence’s own family in during the breach of the U.S. Capitol, Pence has made no indication he does not stand by Trump even now. He is allegedly refusing calls from House and Senate leaders asking him to consider the matter.
At this moment, Pence continues not just to protect Trump, but to enable further acts by Trump to stoke violence. If that does not change then all further talk of removing Trump via the 25th Amendment procedure is irrelevant.