By Daniel J. McLaughlin
An anonymous op-ed in the New York Times caused quite the reaction last week. It was penned by a senior official in the Trump administration, detailing how the president's staff are working to curb their "amoral" and "erratic" boss.
One of the most striking parts of the attack on the president was the mention of the 25th Amendment to the US Constitution. "Given the instability many witnessed," they wrote, "there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president. But no one wanted to precipitate a constitutional crisis. So we will do what we can to steer the administration in the right direction until — one way or another — it’s over."
But what exactly is the 25th Amendment? It is designed to clarify the presidential order of succession, but it can also be used to remove a commander-in-chief from office.
Following the assassination of John F. Kennedy, there was confusion over how to choose the next vice president after Lyndon B. Johnson became president. There was no vice president after Johnson ascended to the top job, and there were concerns over what would happen if there was no one in the position when the president was incapacitated.
There was no tested way of dealing with a severe presidential illness, according to USA Today. "Johnson previously had suffered a heart attack and the next two people in line to be president were the 71-year-old speaker of the House and the 86-year-old president pro tempore of the Senate," they write.
The 25th Amendment was proposed by the US Congress on July 6, 1965, and it was ratified on February 10, 1967. There are four sections to the amendment.
The first section states: "In case of the removal of the President from office or of his death or resignation, the Vice President shall become President."
The second section deals with a vacancy in the office of vice president after they ascend to the presidency. The new president should nominate a replacement, who will take office once they are confirmed by majorities in both chambers of Congress.
A president can temporarily delegate his responsibilities to the vice president if "he is unable to discharge the powers and duties of his office". The vice president becomes acting president until the president informs congressional leaders that he is able to resume his duties. This temporary transferal of powers has been invoked when Ronald Reagan and George W. Bush underwent surgery, with George H. W. Bush and Dick Cheney becoming acting presidents for that time.
Section four of the 25th Amendment is the tricky bit. This provides a process for the vice president and a majority of the cabinet to declare that the president is unable to perform the duties of his office, and could lead to his removal. They would provide a written declaration to the president pro tempore of the Senate (currently Senator Orrin Hatch) and the speaker of the House (currently Paul Ryan) that they believe the president is unfit. This would immediately strip the president of the powers of his office, and the vice president would become acting president.
The president can immediately protest this, and provide a written declaration of his own saying he is able to perform the duties of his office - and the powers would return. That's until the vice president and the cabinet send another declaration to the congressional leaders within four days restating their concerns. The vice president would become acting president again, and it would require Congress to assemble within 48 hours and to vote within 21 days.
A two-thirds vote by Congress confirms the cabinet's judgment, should the president contest his own removal. This section has never been used in its 51-year history.
The New York Times argues that it is "even more difficult to remove a president under the 25th Amendment than it is under the impeachment process". The Times explain: "The authors of the 25th Amendment intended it to be a difficult process that would make it exceedingly rare. They succeeded.
"A president can be impeached by a simple majority in the House and removed from office by a two-thirds vote in the Senate. Removal under the 25th Amendment requires a two-thirds vote in both chambers."
The 25th Amendment has never been used to remove a president from office, and it is extremely difficult to use it against the commander-in-chief in such circumstances. It would be unprecedented to use it, but these are strange times with an unprecedented president.
The anonymous op-ed in the New York Times by a senior official said there were "early whispers" about using the amendment, but the resistance within the administration do not want to cause a constitutional crisis. The very fact that it was even contemplated is a worrying sign for Donald Trump.