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You are here: Home > Articles by Rich Rubino > There is a Constitutional Avenue to Remove Trump That is Not Impeachment

There is a Constitutional Avenue to Remove Trump That is Not Impeachment

by Rich Rubino on March 14, 2017

From twitter tirades to bombastic statements, some critics of President Donald Trump are suggesting that the President might be mentally unstable and should be removed from office. The most obvious avenue in the U.S. Constitution to remove a President from office is through the impeachment and conviction process (The U.S House votes to impeach, then the U.S. Senate votes to convict). With the Republicans in control of both legislative chambers, this is highly unlikely.

Enter the 25th Amendment to the Constitution. The 25th Amendment states that should the President die or resign, the Vice President assumes the office of President. The amendment asserts that the new President may nominate a new Vice President, who can take the office upon winning a majority vote of both legislative chambers. In particular, Section 4 of the amendment provides a formula for removal of a President from office who“is unable to discharge the powers and duties of his office.” According to the amendment, the Vice President and either a majority of Cabinet members or a majority of members of Congress must agree to remove the President. In the case at hand, this is a tall order considering that the GOP controls both the Cabinet and the Congress.

Flash back to November 27, 1963. President John F. Kennedy had been slain just five days earlier. The new President, Lyndon B. Johnson, addressed a Joint Session of Congress. The nation, still in mourning, watched the speech on television. The two men seated directly behind the President were first and second in line of Presidential succession. At this time, there was no provision in the Constitution allowing the President to nominate a new Vice President. Johnson had no Vice President until being sworn in for a full term in 1965. Had Johnson died in office, next in line to the Presidency was the 72-year old Speaker of the House John McCormack (D-MA). Behind him was 86-year old Senate Pro Tempore Carl Hayden (D-AZ). Neither appeared ready to serve as President.

Ironically, McCormack almost did assume the Presidency on the day Kennedy was killed. Secret Service Agent Gerald Blaine was on duty guarding Johnson’s Washington D.C. home. He heard footsteps and fired his submachine gun in the air to ward off any potential intruders. However, the person continued to walk toward Blaine. Blaine then put his finger on the trigger ready to shoot what he thought was an intruder. Fortunately Blaine then recognized the man walking toward him. It was President Johnson.

Prior to the 25th Amendment, the Constitution did not specify a procedure should the President become too disabled to discharge the duties of the office. Some Presidents had signed agreements with their Vice Presidents, stating under what conditions the Vice President would replace the President. However, these written agreements were not legally binding.

The Kennedy assassination put passage of the 25th Amendment on the fast track. Prior to Kennedy’s death, the American Bar Association had recommended a Constitutional amendment to codify a procedure for removing an incapacitated President and choosing a new President and Vice President. In 1965, the Chairman of the Senate Subcommittee on Constitutional Amendments Birch Bayh (D-IN) introduced his version of the proposed amendment. House Judiciary Committee Chairman Emanuel Celler (D-NY) introduced a separate proposal. The two versions were eventually reconciled, and by 1967 received approval of the requisite two-thirds of the states.

The impetus for writing this amendment was to avoid a similar situation as happened In 1919. President Woodrow Wilson suffered a stroke. His wife Edith secretly made many decisions for the President. The President could barely even sign an official document. Much of this was downplayed in public, as the President was able to hide the severity of that stroke with wit and the appearance of dexterity for visitors. When U.S. Senator Albert Fall (R-MT), a steadfast critic, came to visit him, Fall began the meeting by stating to the President: “We have been praying for you Mr. President.” In a flash, Wilson proved his mental dexterity with the following clever retort: “Which way, Senator?” Fall later reported that the President was not too impaired to serve.

I recently spoke with Jason Berman, who was a legislative assistant for Senator Bayh during the development of the 25th Amendment. He remarked: “Woodrow Wilson was the historical precedent” which the amendment was based on. The drafters of the amendment were trying to conceive of “a set of traditional types of issues for inability and incapacity. Section 4 was conceived to cover situations where the President was unable. It was meant to cover a blind spot. It was not meant to be politically motivated.”

The timing of getting the amendment ratified was fortuitous. In 1973, just five years after the Amendment was ratified, Vice President Spiro Agnew was forced to resign after pleading nolo contender (no contest) to charges of failing to report $29,500 of personal income. President Richard M. Nixon now had the authority to nominate a new Vice President. His first choice to succeed Agnew was U.S. Treasury Secretary John Connally. However, Congressional leaders told Nixon that Connally would have problems being confirmed, so Nixon went with his second choice, U.S. House Minority Leader Gerald R. Ford (R-MI). A year later, Nixon became enveloped in the Watergate Affair and was forced to resign from office. Ford became President.

Had the 25th Amendment not been in place when Republican President Nixon resigned, Democratic House Speaker Carl Albert of Oklahoma would have succeeded him. Thus despite the American people resoundingly re-electing a Republican President in 1972 (Nixon won 49 states), a Democrat would have ascended to the Presidency.

As President, Ford used the 25th Amendment to nominate former New York Governor Nelson Rockefeller as Vice President. Congress subsequently confirmed Rockefeller.

During the interim, when Nixon, then Ford were deciding who to nominate for Vice President, and again during the time period when Congress was considering the respective nominations of first Ford, then Rockefeller for Vice President, U.S. House Speaker Carl Albert (D-OK) was next in the line of succession for the Presidency.

Speaker Albert had no presidential aspirations. However, when Nixon resigned, a battalion of Secret Service agents camped outside his apartment in a trailer. Albert’s landlord received a multitude of calls from other tenants in the building lamenting the presence of the agents. Some tenants believed the occupants of the trailer were hippies.

The disability provision of the 25th Amendment has been applied three times when the President underwent surgery. It was applied in 1985 when Ronald Reagan underwent Colon cancer surgery, and in 2002 and 2007 when George W. Bush experienced a colonoscopy.

U.S. Representative Earl Blumenauer (D-OR) is in the process of creating a “working group to clarify and strengthen” the amendment. Blumenauer avers: “In the absence of Congressional action, the constitutional language depends on action by the cabinet who may be fired by the President, undermining this ostensible check on an unstable president. It’s time to revisit and strengthen the Amendment and make sure there is a reliable mechanism in place.”

While the intent of the Amendment was never political, it can be a potential tool in the arsenal of those (in particular those members of the opposing party) who fear the President is mentally unstable.

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