UNDERSTANDING THE 25TH AMENDMENT AND IMPEACHMENT PROCEEDINGS

[1.0] THE PURPOSE OF THE 25TH AMENDMENT

The 25th Amendment, ratified in 1967 and adopted in the wake of President John F. Kennedy’s assassination in 1963, deals with presidential succession and disability. The structure of the Amendment sees the first three sections dealing with resignation, death, or incapacitation. The fourth section, however, addresses the procedure for removal and the  route the vice president and a majority of the officials who lead executive agencies — commonly thought of as the cabinet — must adopt to declare that the president is ‘unable to discharge the powers and duties of his office.’ That process ultimately requires a two-thirds vote of both houses of Congress. The ‘principal officers of the executive departments’ are the fifteen Cabinet members enumerated in the United States Code at 5 U.S.C. § 101

Section 4 addresses situations where a president cannot do the job but does not step down voluntarily. While the 25th Amendment has mostly been constructed for physical or mental incapacity, it could also be tailored to fit a President dangerously unfit for governance. It must be noted that invocation of the 25th Amendment is tremendously difficult: for the 25th Amendment to be invoked, Pence and the majority of Pres. Pres. Trump’s Cabinet would need to declare that Pres. Trump is unable to perform the duties of the presidency and remove him. Pence would take over in that scenario. Section 4 has never yet been invoked.

[1.1] PROCEDURE FOR INVOCATION OF THE 25TH AMENDMENT

Subsequently, Pres. Trump may announce that he is worthy of commencing his work if the Cabinet does not challenge Pres. With Trump’s determination, he can reclaim control if they were to contest Pres. Congress then determines Trump’s declaration, but Pence would continue to serve as president in the meantime. The first step would be for Vice President Mike Pence and a majority of the cabinet to provide a written declaration to the Senate’s president pro tempore and the Speaker of the House that Pres. Trump ‘is unable to discharge the powers and duties of his office.’ That would immediately strip Pres. Trump of the powers of his office and make Mr. Pence the acting president. An immediate written declaration can then be delivered to Sen. Grassley and Speaker Pelosi, reaffirming duties’ performance, which would allow them to be resumed. 

Mr. Pence and the cabinet must deliver another declaration to the congressional leaders within four days, restating their concerns whereinafter Mr. Pence would take over once more as acting president. This declaration will then assemble congress within 48 hours and will require a vote within twenty-one days to decide a majority.  If two-thirds of both the House and the Senate agree that Mr. Trump is unfit to retain Presidentship, he would be stripped permanently of the position, and Mr. Pence would continue serving as acting president. If the vote in Congress falls short, Mr. Trump will resume his duties.

A two-thirds vote in both houses will be expected to hold Trump out of the proceedings. But the Democratic House may also merely defer voting on the substantive conflict until Pres. Trump’s term expires. The drafters of the 25th  amendment believed that it was a complex procedure that would make it exceptionally rare to perform.  It is much more difficult to force the President from office under the 25th amendment than in the impeachment process. The President may be charged by a simple majority in the House and suspended from office by a two-thirds vote in the Senate if impeachment proceedings have been initiated against them.   Stripping the President of power in compliance with the 25th amendment requires a two-thirds majority of both houses.

Crucially, the president does not retake power immediately upon declaring himself able. Rather, the vice president remains acting president during the four-day waiting period. Whether the vice president and the Cabinet can voluntarily transfer power back to the president in less than four days is less clear. If the vice president and the Cabinet thereupon reaffirm the president’s inability, the vice president remains in power as Congress deliberates to settle the dispute. However, legal experts have raised questions regarding the misinterpretation of the section, insofar as a common presumption is that the president retakes power immediately upon his declaration that he is able.

A clear-cut issue with this interpretation is that the presidential declaration of fitness, in the wake of the Cabinet’s invocation, cannot mean a power-splintering between the Vice-President and the President. A twin claim to the Presidentship means turmoil in the White House, the executive branch, and the military. Ensuring a fair trial could also be a major issue since the president could attempt to fire the Cabinet to prevent it from re-declaring his inability and sending the case to Congress. Even in the waning hours of office for President Trump, the struggle would mean a significant weakening of government. 

[2.0]  UNDERSTANDING IMPEACHMENT

A misunderstanding of ‘impeachment’ would be that it corresponds to the president’s expulsion from office. In practice, the situation applies only to the House of Representatives, the lower chamber of Congress, presenting allegations that the president has committed a ‘high crime or misdemeanor’ – comparable to a court case’s indictment.

Whenever a simple majority of the 435 members of the House decides to file charges, classified as ‘articles of impeachment,’ the proceedings shall be appealed to the Senate, the upper chamber, which then holds a hearing to ascertain the President’s guilt. The Constitution decrees a two-thirds majority of the Senate imperative in the prosecution and ousting of the President from office. 

Impeachment in the United States is a mechanism in which the legislature (usually in the form of a lower house) accuses a civil officer of the government with offenses supposedly committed, similar to presenting an indictment by a grand jury. Impeachment may arise at the federal or state level. The Federal House of Representatives may impeach federal officials, including the president. Most state legislatures may do the same for state officials, including the governor, in compliance with their corresponding federal or state constitutions.

Pres. The Democratic-led U.S. House recently charged Trump in December 2019 for abuse of power and obstruction of Congress due to his measures to compel Ukraine to probe Biden and his son. The Republican-led Senate absolved him in February 2020.

[2.1] GROUNDS OF IMPEACHMENT

The Constitution limits grounds of impeachment to ‘Treason, Bribery, or other high Crimes and Misdemeanours.’ The precise meaning of the phrase ‘high crimes and misdemeanors’ is not defined in the Constitution itself.

Since impeachment as a remedy is intended to punish officers committing discrepancies with their official duties, the grounds for impeachment cannot be automatically categorizable. However, Congress has identified three general types of conduct that constitute grounds for impeachment, although these categories should not be understood as exhaustive, being [A.] improperly exceeding or abusing the powers of the office; [B.] behavior incompatible with the function and purpose of the office; and [C.] misusing the office for an improper purpose or personal gain.

[2.2] THE TRIAL IN IMPEACHMENT

The hearings shall take place in the manner of a trial, with the Senate having the right to call witnesses with either party having the right to cross-examination. The House representatives, who have been granted the joint title of managers during the process of the proceedings, shall submit the evidence to the court, and the accused officer shall have the right to defend themselves with their own counsel. Senators must either take an oath or assert that they will fulfill their duties with due care and integrity. Typically, after reading the allegations, the Senate deliberates in private. The Constitution requires a two-thirds supermajority to convict the impeached individual.

The Senate enters a verdict on its judgment, whether to prosecute or acquit, and a record of the judgment is submitted with the Secretary of State. Upon conviction in the Senate, the official is immediately suspended from office and may even be disqualified from holding a potential office. The tribunal is not an actual criminal procedure since it more accurately reflects an application for dissolution of the civil service in terms of the injustice envisaged. Consequently, the suspended official can also be subject to criminal charges in the form of a subsequent criminal proceeding. The President does not offer a pardon in the prosecution but may do so in any subsequent Federal court proceeding.

In the case of the president’s impeachment, the Chief Justice of the Supreme Court presides over the trial. The Constitution is silent about who would preside in the case of the impeachment of a Vice President. It is doubtful the Vice President would be permitted to preside over their own trial. As President of the Senate, the Vice President would preside over other impeachments. If the Vice President did not preside over an impeachment (of anyone besides the President), the duties would fall to the President pro tempore of the United States Senate.

A conviction would require  ‘the concurrence of two-thirds of the [Senators] present’ for at least one article is required. If there is no single charge emanating leading to a ‘guilty’ vote from two-thirds of the senators present, the defendant is acquitted, and no punishment is imposed.

Conviction shall automatically dismiss the individual from office. Upon indictment, the Senate can vote to further penalize the person by prohibiting them from holding a future federal office, elected or appointed. Although the requirement for disqualification is not clearly specified in the Constitution, the Senate believes that disqualification votes only require a clear majority rather than a two-thirds supermajority. The Senate used disqualification sparingly since only three people were excluded from holding a potential office.

[2.3] HOW DOES THIS TRANSFER OF POWER WORK?

The advantage of removing a problematic president via the 25th Amendment is speed: if Mike Pence, the vice-president, and more than half of the executive agency heads in the cabinet collaborate, the 25th Amendment will lead to faster dismissal of the President than impeachment proceedings. In fact, the House and the Senate minority holder have publicly entreated the Vice President to do the same. Barring this, new impeachment proceedings should be initiated. 

Securing two-thirds of both houses of Congress to agree to Mr. Trump’s removal seems like a long shot, especially a fortnight away to the new administration. However, the possibility of two individuals claiming Presidentship at the same time is perhaps the reason the Twenty-Fifth Amendment was drafted, clarifying who at any moment is charged. 

The main issue is a misreading in Section 4, wherein the text says that the president ‘shall resume’ his powers ‘unless’ the vice president and the Cabinet disagree ‘within four days.’ Here, ‘unless’ means that the action is pending, not that it is reversible.

A bad faith reading of the text would mean that the vice president’s status as acting president essentially has no power since any decision can be overturned in four days. Furthermore, if the President is immediately granted power after the four-day interval, they can immediately discharge the Cabinet after the deadline is passed. This would provide power without any checks and balances to it. Considering that the 25th Amendment was initiated to understand power roles in cases of turmoil, it makes little sense for control to be tossed back and forth during the proceedings’ pendency. 

Since Section 4 mentions the vice president’s status as acting president in two places, it must be understood that [A.] the vice president ‘immediately’ takes power as acting president post the incipience declaration of the president’s unfitness and [B.] that the Section decrees says that if the president loses the congressional vote, the vice president ‘shall continue’ as acting president.  Suddenly taking back Presidential power does not make sense in constructing this clause, especially since it would cause a discrepancy in the roles occupied by public officials. 

The correct reading also makes better sense structurally since it would see a power transfer happen one time. Taking legislative intent and the inordinate skewed balance it would present to the Cabinet, it is safe to assume that the bad faith reading cannot be held. Section 4’s drafters meant for the vice president to be in charge during the waiting period. Vagueness in the text cannot compromise the meaning of the Section as well. 

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Sources

1. Amendment XXV Section 1. In case of removing the President from office or of his death or resignation, the Vice President shall become President.

2. Amendment XXV Section 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

3. Amendment XXV Section 2.

Whenever there is a vacancy in the vice president’s office, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

4. 5 U.S. Code §101.Executive departments

5. Amendment XXV 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 a 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.

6. The amendment was ratified in 1967 in response to John Kennedy’s assassination in 1963, which underlined the need for a clear procedure to determine whether the president can discharge his duties. Since then, the first three sections of the amendment have been used six times. Gerald Ford and Nelson Rockefeller were appointed vice-president in 1973 and 1974; Gerald Ford succeeded Richard Nixon as president in 1974; and Ronald Reagan and George W. Bush briefly transferred power to their vice-presidents (once and twice, respectively) while they were under general anesthesia for colonoscopies.

7. The president pro tempore of the United States Senate (often shortened to president pro tem) is the second-highest-ranking official of the United States Senate. Article One, Section Three of the United States Constitution provides that the vice president of the United States is the president of the Senate (despite not being a senator), and mandates that the Senate must choose a president pro tempore to act in the vice president’s absence. Unlike the vice president, the president pro tempore is an elected member of the Senate, able to speak or vote on any issue.

8. Currently, Senator Chuck Grassley, Republican of Iowa

9. Currently, Representative Nancy Pelosi, Democrat of California

10. “Article II.” LII / Legal Information Institute

11. Staff of the Impeachment Inquiry, Committee on the Judiciary, House of Representatives, Constitutional Grounds for Presidential Impeachment, 93rd Conf. 2nd Sess. (Feb. 1974), 1974 Impeachment Inquiry Report

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