Just days ago, University of Colorado Boulder law professor Paul Campos wrote about section four of the 25th Amendment, which would allow Vice-President Mike Pence to become acting president for the remainder of Donald Trump’s time in office — with just a simple cooperating majority in one chamber of Congress needed.
After the extraordinary events on Wednesday, in which the president’s supporters violently took over the Capitol Building, such a prospect has gone from a hypothetical to a real consideration within the White House. According to CBS News, cabinet secretaries are discussing the 25th Amendment to remove the president for the remainder of his term, though “nothing formal” has been presented to Pence. CNN reports that four Republican leaders have called for the invocation of the 25th Amendment. In addition, the New York Times reports that the 25th Amendment conversations are “staff-based within the administration” and “stem from growing concern about the next two weeks and the potential for insurrections around the country.”
To help understand the constitutional minutiae, I spoke with Campos about Pence’s options, the changing calculus among Republicans, and how the crisis unfolds from here.
Matt: In public, Pence seems quite serious about this unprecedented moment. In a speech in a reconvened Congress on Wednesday night, Vice-President Mike Pence denounced the Trump supporters who violently took over the Capitol Building: “To those who wreaked havoc in our Capitol today: You did not win. Violence never wins.” The House, meanwhile, seems as if it would play along with a 25th Amendment invocation, if not a more aggressive formal action: On Tuesday, Representative Ilhan Omar announced she was writing up new articles of impeachment to remove Trump.
If Pence were to consider invoking the 25th Amendment, how would he do it?
Paul: The process has to be initiated by Pence and the Cabinet. He would need to get a majority of the 14-member Cabinet, including himself, to sign a letter declaring the president to be unfit to carry out the powers and duties of the office. A relevant technical point here: Scholarly precedent states that acting secretaries count in the Cabinet decision to remove the president.
If Pence does get that Cabinet majority, the moment that he signs and transmits it to Congress, he becomes the acting president. The point I was making in my piece about a week ago is that given the timing of matters, Congress wouldn’t have to take any action to remove Trump for the remainder of his presidency.
At this point in the process, Trump would then send a letter disputing the claim that he’s unfit. Then Pence would have four days to transmit another letter saying “I continue to think the president is unfit.” Throughout all this, the VP remains the acting president. Congress would then have 21 days to decide the issue. But they could also do nothing, if a simple majority in the House or Senate refuses to take up the matter. So in this special circumstance, with 14 days remaining in Trump’s presidency, if Pence were to invoke the 25th, it is a fact that Pence could remove Trump for the rest of term.
Matt: So what would Pence’s title be at that point?
Paul: Acting President Mike Pence. It is a special type of office as it were, something that only exists under the 25th Amendment. An acting president has all the powers of the presidency, but with a different title.
Matt: When Congress first submitted the 25th Amendment to the states in 1965, was this the kind of event they had in mind?
Paul: The main focus of the amendment was to have something in place to guide in the event of a coma or another extreme physical disability making it impossible for the president to do the job. But it was also written in a general way that it could be used in a crisis. One of the things framers were thinking about was a president flipping out in a some way that was utterly unacceptable, some psychotic break or an idea so utterly deranged politically that something radical would have to be done. Section four has not been invoked since the amendment was adopted in 1967.
Matt: One potential obstacle to an invocation of the 25th Amendment is that Trump’s Cabinet is really made up of the true believers at this point. There aren’t a lot of “adults in the room” left.
Paul: That is a practical problem certainly, but the events are so extreme that it’s not beyond the realm of responsibility. Pence has moved quite a bit in the last day or two, and I don’t think he would necessarily be averse to invoking the 25th. Given the makeup of the Cabinet, that might be a heavy lift. But in this utterly extreme and extraordinary circumstance, Pence at least should be reminded he does have this power. That’s a speculative opinion, but I think he could actually do it.
Matt: How do you think it might affect his political prospects, assuming support of Trump after the Capitol riot does not become toxic within the party?
Paul: To speak frankly, so much of the media has been clamoring for this idea of a “decent Republican.” I think he would be canonized for doing this: the Ultimate Statesman.
Matt: When this story was first published, it seemed to me like an interesting hypothetical, but far from political reality. Now there are reports that the 25th Amendment is in play in the Cabinet. How do you feel about this rapid change?
Paul: My main emotion today is one of deep sadness, that this is a tragic day for our country. But one reason I wrote the article — it wasn’t some crazy, desert-island hypothetical. The Trump administration has been full of craziness, and it was very easy to imagine that something could happen in the last few weeks that could be unendurable by the political system. Today in some ways might have been, who knows. A lot of people who were soft Trump supporters may say “this is way too much.”
Also, the inauguration is 14 days away. We don’t know what’s going to happen over the next 14 days. People are saying this is the low point. It may not be.
This conversation has been edited for clarity.