A Timely Primer on Section 4 of the 25th Amendment

If a majority of the cabinet agrees to remove the President, Pelosi and McConnell could run out the clock till January 20.

There are rumblings that President Trump's cabinet may invoke Section 4 of the 25th Amendment.

JUST IN: "This is not news we deliver lightly," @margbrennan says as she reports: Trump Cabinet secretaries are discussing invoking the 25th Amendment to remove President Trump. Nothing formal yet presented to VP Pence.

"I'm talking about actual members of the Cabinet," she says

— Ed O'Keefe (@edokeefe) January 7, 2021

I am deeply grateful to Professor Brian Kalt, who wrote the definitive book on this once-obscure provision of the Constitution. He created this helpful graphic to explain how the 25th Amendment operates.

Here, I wish to break down the logistics. There are currently 15 Cabinet Members who could vote on a 25th Amendment declaration. According to Professor Kalt, acting members should be allowed to vote. Professor Anne Joseph O'Connell disagrees.

The 15 current members are:

1. Secretary of State Mike Pompeo
2. Secretary of the Treasury Steven Mnuchin
3. Acting Secretary of Defense Christopher Miller
4. Acting Attorney General Jeffrey A. Rosen
5. Secretary of the Interior David Bernhardt
6. Secretary of Agriculture Sonny Perdue
7. Secretary of Commerce Wilbur Ross
8. Secretary of Labor Eugene Scalia
9. Secretary of HHS Alex Azar
10. Secretary of HUD Ben Carson
11. Secretary of Transportation Elaine Chao
12. Secretary of Energy Dan Brouillette
13. Secretary of Education Betsy De Vos
14. Secretary of Veterans Affairs Robert Wilkie
15. Acting Secretary of DHS Chad Wolf

If Vice President Pence, and eight of these fifteen cabinet members, "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," then Mike Pence immediately becomes Acting President. Because there is some debate about whether acting cabinet members can vote, it would be safe to have at least 8 confirmed cabinet members vote to remove.

At that point, Trump would "transmit[] to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists." Thereafter, The Vice President, and the cabinet members have four days to take another vote. During that four day period, Pence remains as Acting President. If Pence and eight members of the cabinet agree that Trump is still "unable to discharge the powers and duties of his office," then Pence remains as Acting President.

At that point Congress has up to 21 days to determine whether Trump is "unable to discharge the powers and duties of his office." It would take 2/3 of the House and Senate to remove Trump from office. That vote would likely fail. But, we are less than 21 days till the inauguration. In theory, Speaker Pelosi and Leader McConnell could simply run out the clock, and not bring up a vote in two weeks. On January 20 at noon, Joe Biden will take the oath of office.

In short, if VP Pence and a majority of the cabinet vote to remove Trump, there is little chance that Trump would return to the Presidency--absent another election.

I raise one possible cliffhanger. Trump could preemptively fire everyone in his cabinet who does not pledge fealty, and then use the Vacancies Reform Act to install loyalists as acting cabinet heads. That could deprive Pence of a majority. It is also possible that cabinet members may resign. There are further rumblings of possible resignations.

Based on some of my conversations today I think 1600 is going to be a pretty solitary place for the next couple weeks.

— Jonathan Swan (@jonathanvswan) January 6, 2021

With resignations, Trump may also be able to appoint loyalists as cabinet members. The denominator remains 15, no matter what.

Now Trump would need help to execute that sort of Vacancies Reform Act move. I suspect White House Counsel Pat Cipollone would resign rather than help with this purge.

Stay tuned. And please email me if I made an error. I wrote this post in haste.

Update: Tonight I appeared on Houston's NBC Affiliate, and spoke briefly about the 25th Amendment.

Comments

[Jimmy the Dane]

You do realize a midnight impeachment or the 25th Amendment is not only unwarranted but extremely dangerous, do you?

[Dr. Ed 2]

Sadly, I don't think they do.

Starting 50 years ago, when the radical Black students took loaded rifles into Cornell, they have been used to a violent left and a peaceful right -- they truly fear offending the left but presume that we will never do anything.

And that's why I quote Yeats...

[Noscitur a sociis]

You have yet to successfully quote Yates, you pinheaded, cowardly quisling.

[Dr. Ed 2]

I'm close, but you are welcome to post the two poems.

[theresathomson]

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[jdgalt1]

At least he spells the name right.

[Queen Amalthea]

"they have been used to a violent left and a peaceful right"

https://www.nytimes.com/2020/10/24/us/domestic-terrorist-groups.html

[Brett Bellmore]

You realize they've got that left-wing group that was plotting to kidnap the Governor of Michigan listed as a rightwing group, I hope.

Anyway, this says it all, I think: "While the threat assessment does not specifically mention antifa".

[not guilty]

Do you have factual support for our characterization of the would-be kidnappers as a left-wing group? Of merely your ipse dixit?

[David Nieporent]

they truly fear offending the left but presume that we will never do anything.

Uh, we've seen Oklahoma City and Charlottesville and the El Paso shooting and the Charleston church shooting… we know you'll do something.

[AtR]

I agree ... this would make an already flammable situation into a virtual inferno. It is precisely such times in human history where cooler heads have to prevail and lower the temperature throughout.

[Commenter_XY]

Where are those cooler heads?

[MatthewSlyfield]

Packed in a freezer somewhere in Alaska.

[Rev. Arthur L. Kirkland]

Why dangerous? Because a pack of right-wing pussies would whimper and pout?

[Jimmy the Dane]

Screw it. Go right ahead. Remove Trump. I'll go get some more popcorn.

If you didn't learn the lesson of being disingenuous and two faced when it comes to dissent and civil unrest then you deserve what is coming.

[Rev. Arthur L. Kirkland]

I pay a six-figure tax bill each year, you no-count hayseed. Among the services I fund is trash removal. If you wish to become part of that trash, be my guest. Accelerating your replacement wouldn’t cost me a moment’s concern.

[TwelveInchPianist]

"I pay a six-figure tax bill each year..."

Why won't you pay your fair share?

[DaivdBehar]

The similarity of the images were striking. The media is suppressing the analogy, called the resistance, rioters, looters and seditionists. That is from the Chinese Communist Party book of talking points.

[Dr. Ed 2]

Lynch's Law...

[JSinAZ]

Then you should be able to bathe even once a week! My god, what awful odor, is it a keto-acidosis problem? Not enough dialysis? gack

[Jason Cavanaugh]

I thought you don't advocate violence? Whatever happened to that Jimmy?

[Jimmy the Dane]

Jimmy says don't poke the bear.
Lib says but poking the bear is fun!
Jimmy says don't poke the bear.
Lib says look I'm poking the bear and it isn't doing anything!
Jimmy says keep on poking it and see what happens...

I'm not advocating anything. People have ignored the warnings. Now they get what is coming...

[Jason Cavanaugh]

"you deserve what is coming"

You are absolutely advocating violence. In typical fashion, you're doing so from behind your keyboard, but in suggesting it is deserved, you are clearly and unequivocally advocating for violence.

[Dr. Ed 2]

No Jason, he's been saying don't play with gasoline -- and now that you've ignored him and are soaked in it, he's saying not to light any matches.

And if you ignore him on this, you do deserve to get burned.

[Jimmy the Dane]

Jason - you are not very bright are you...

Do you know the difference between "advocate" and "warn"?

[Jason Cavanaugh]

You are an advocate of violence, no matter how much you claim otherwise.

You support the notion that they DESERVE the violence, thus you support and condone the application of it. You are not nearly as clever as you might think.

You are a filthy piece of shit. You are a coward. You are a cancerous remnant of insignificant blips in the history of this country. You will never amount to, or mean anything to anyone.

You and your kind will not be missed.

[Jimmy the Dane]

Love you too man.

[Rev. Arthur L. Kirkland]

I love putting right-wing bigots in their place. Right-wing elected officials, right-wing malcontent, right-wing law professors . . . They’re all just bigoted clingers to me, destined to lose the culture war. Why not cuff them around for sport along the way?

[JSinAZ]

Heh, enjoy yourself! Rot from the inside must be tough on you.

[Bill Poser]

He's becoming increasingly unhinged. That alone would warrant removal from office. Whatever one's politics, it is not a good idea to have a President who is not of sound mind.

[AtR]

Ok ... and what happens with the 70-odd million people who voted for him, when their choice candidate is forcefully removed from office? Think this through ...

[Bill Poser]

He's being removed anyhow on the 20th. The loonie-tunes among them are furious about that. The saner ones will most likely not be much more ticked off at him being removed two weeks early. And remember that his replacement until the 20th will be VP Pence, so the result will not be a radical change in policy.

[Ben_]

You know it’s all posturing for attention, right?

[DaivdBehar]

Very KGB talking point.

[Queen Amalthea]

"but extremely dangerous"

Because so many Trump supporters are akin to cultists who would support Trump even if he shot someone in broad daylight and that support could quickly be violent? It's interesting you think you're defending him and them with this stuff...

[Jason Cavanaugh]

Then Trump should stop feeding lies to and encouraging his cultists to fight for a stolen election, and people like you desperately need to wake the fuck up.

[Jimmy the Dane]

Can the media also stop spoon feeding lies to foment race wars? That would be nice.

[JSinAZ]

What, and lose what audience they have? Our betters are busy stoking as much hate as possible, and they’ve really worked up a head of steam. All on board the race-hate train express, room for every lefty girl and boy!

[Wise Old Fool]

Who is afraid of Trump nutters? Bring it. Trump needs to be impeached and convicted so he can never run for a fed office again.

[DaivdBehar]

This is just more of the Deep State defending itself. It is just politics.

[Wise Old Fool]

Proposing getting rid a criminal President isn't "deep state" it's common-fucking-sense.

[DaivdBehar]

This approach is copying the KGB Handbook, found in the trash. They label adversaries and dissenters as mentally ill and impaired. They even had them committed to mental hospitals, and with forced tranquilizers. These are to treat psychotic delusions. The KGB believed that any opponent to Communism must be mentally ill. The Deep State is just copying that handbook.

[Queen Amalthea]

"They label adversaries and dissenters as mentally ill and impaired."

Like saying they have dementia?

[SykesFive]

Just because they're after you doesn't mean you're not paranoid.

[The Turtle Dove]

Complete canard. Inability isn't remotely the issue. If you think that a mob showing up at the gates with torches and pitchforks provided by Acme, Inc. is sufficient reason to impeach the Rt. Hon, Wile E. Coyote, the mechanism exists in the Congress to do so. Suggesting that the cabinet (analogue to the small/privy council of the UK monarch) take up the task is simply a cynical attempt by partisan media to move the points of stress to intra-party conflict, splitting the Republicans.

The small council / large council (aka Parliament) division is instructive. The small council was the chosen circle of the monarch, but still composed of nobles who had their factions in the larger council as well. (At least when they weren't foreign weirdos.) The small council is the organ from which the common law courts developed, and the residual right-making powers created the chancery function and the law of equity. The large council, which becomes Parliament, reflects the common power of the aristocracy, and the king's power was greatest when he ruled in Parliament. (US law has its analogue to this.) So the small council, if they had 25th Amendment powers (which, to be clear, they never did) would have the task of determining when their chosen fellow had become incapable or was off dancing with the leprechauns, or sitting on the ground and telling sad stories of kings. Parliament (Congress), otoh, is the appropriate one to decide if the actions were not in keeping with the coronation oaths. (Traditionally often cited when deposing fellows with metal hats with lots of shiny rocks in them.)

Mr. D.
(Who has been reading medieval legal history lately.)

[DaivdBehar]

Privy Council. Privy, Mr. D. Henry VIII could not reach himself. The person responsible for his needs had his ear for the hour it required. It was a much sought after position. There was no palace sewer, and the guy weighed 400 lbs with a proportional output.

[The Turtle Dove]

Small council became privy council, but the institution of the king gathering a subset of the magnates and other hangers-on long predates the formal privy council, and the relevant deposition precedents were set long before the privy council came into formal existence (and eventually ruled the colonies, newly discovered lands being governed by the prerogative). Not an expert, just my recent general-quarantine project.

Mr. D.

[jdgalt1]

Mr. D, I think your analogy between the British system breaks down at the very end. Britain's judiciary cannot judge the sitting monarch for two reasons, neither of which holds true in the US. One is that every sitting judge has sworn an oath of fealty to the monarch personally, not to any constitution-like document. Second is that any speech raising doubt about the monarch's right to the crown is treason.

[M L]

"This is not news we deliver lightly. However we have been saying this for four years now."

[DaivdBehar]

Hong Kong : Washington :: Democrat Party: Chinese Communist Party

[Queen Amalthea]

RussiaBot hates ChinaBots!

[David Nieporent]

Unfortunately, Mr. Behar doesn't understand how analogies work any more than he understands law. Or logic. Or sanity.

Because he didn't say what he thinks he said.

[PeteRR]

Worst spank material ever.

[DaivdBehar]

The similarity of the images were striking. The media is suppressing the analogy, called the resistance, rioters, looters and seditionists. That is from the Chinese Communist Party book of talking points.

[mydisplayname]

It is interesting to compare the vote in the House today with that of 2005. In 2005, the vote to overrule the objection was 267 to 31 (10% of those voting were in favor) whereas today it was 303 to 121 (28.5% of those voting were in favor of the objection).

Will media reports reflect the fact that the first objection to the 2021 electoral college vote had almost three times more support than the first objection to the 2005 electoral college vote?

[Commenter_XY]

No, they probably will not. But that proportion says a a lot.

[jdgalt1]

But does it reflect their true convictions, or that they fear riots, or that they've been paid off? And how many of each?

[ReaderY]

Can they remove him without telling him he’s been removed? That might be the cleanest approach. It’s not like he’s attending to public business much.

Let Pence quietly handle things. And let Trump keep tweeting, playing golf, whatever.

[Bored Lawyer]

Kind of like King George III, when he went mad, and they made his son regent. I like the idea, but I doubt it would work under our Constitution.

[Rev. Arthur L. Kirkland]

Is Prof. Volokh’s silence a bid for a Medal of Freedom?

[Queen Amalthea]

I think Volokh might be (finally?) thinking hard about the costs of speech.

[Rev. Arthur L. Kirkland]

I doubt it. I sense he’s just a low-quality American who deserves to be disaffected, marginalized, and politically defeated. A hypocrite with a big mouth.

[Bored Lawyer]

And yet you keep posting your twaddle on the blog of such a person. What does that say about you?

[BadLib]

I'm pretty sure Professor Volokh has thought long and hard about the costs and benefits of free speech for a long time. And, I don't expect that anything that's happened in recent weeks would change his views measurably, nor should they.

Riots, vandalism, violence, and trespassing, of course, are not "protected free speech" - not for BLM, Antifa, or Trumpites.

[Rev. Arthur L. Kirkland]

So. . . still a polemical, partisan, hypocrite on the wrong side of history, whining about a lack of affirmative action for his discredited kind?

[AmosArch]

If any of my leftist buddies starts whining about how delusional and out of touch the protestors supposedly are I can just point them to these postings as a retort.

[Ben_]

I timely primer on CBS news: it’s a complete joke. They make stuff up.

Twitchy: https://twitchy.com/dougp-3137/2021/01/06/trumps-cabinet-considering-invoking-25th-amendment-cbs-news-reports-again/

[Bill Poser]

If Congress were to wish to remove ambiguity as to whether acting cabinet members count, could this be accomplished by legislation or would it be necessary to amend the Constitution?

[SMP0328]

A statute would be sufficient. Section 4 of the 25th Amendment allows Congress to designate what group works with the Vice President in determining if the President is disabled.

[Queen Amalthea]

Trump shouldn't be removed under the 25th. He's a profoundly ignorant person with severe character flaws, but that's not what the 25th is for. Likewise, impeachment is not appropriate, his boorish and reckless behavior doesn't strike me as rising to a high crime or misdemeanor (if anything his Georgia call comes closer to that, but note that that call wouldn't make sense coming from someone for who the 25th would apply). He should be censured by the Congress. That's about all that's warranted imho over this.

[Rev. Arthur L. Kirkland]

Bingo. No impeachment. No emergency removal. Just ride this out, then prosecute Trump as warranted, and vote to effect American progress while noting the Republicans’ objections.

[Dr. Ed 2]

Kirkland, prosecuting an ex-president -- any ex-president -- is a very dangerous precedent that you don't want to see established.

[Jason Cavanaugh]

It is necessary.

Your advice isn't fit to put inside a fortune cookie. You are irrelevant.

[JSinAZ]

That’s the idea. More dismissive hate, there’s not nearly enough. We’re almost at critical mass, we can break this thing yet!

[jdgalt1]

If it's necessary, let's start with Obama.

[damikesc]

Jason, I feel misusing the intel services to attack a foe warrants punishment but I did not encourage Trump to punish Obama.

We will tell you, and you'll ignore, that this is not a path you should tread down.

[BadLib]

I generally agree, but remember that the cabinet members see an even more unvarnished version of Trump than we do.

His recent embarrassing complete disconnect from reality, with no benefit, with respect to the election outcome is alarming and those close to him may see that he's unraveling. If that's the case, he likely is unable to perform his duties due to psychosis, depression, or other mental disorder.

If that is the case, the 25th route would be the responsible thing to do, although only if it's clear that Pelosi and McConnell are "on board" and think they can roust up the necessary two-thirds vote and can get Trump removed ASAP. If either will run the clock out or don't think they can get the votes, it's probably best not to aggravate the nutcase as he might start pushing red buttons...

[Brett Bellmore]

"I generally agree, but remember that the cabinet members see an even more unvarnished version of Trump than we do."

I suspect that makes the 25th amendment approach less likely, not more. They're seeing him live, not on CNN. If you think CNN is painting a rosy picture of Trump, there's nothing I can do to help you, you're probably beyond treatment.

[Voize of Reazon]

I agree that it would be a misapplication of the 25th amendment to use it here. There's plenty of evidence that Trump is unwilling to perform the duties of the presidency, but not that he is unable. The 25th is intended to deal with disability and Trump's choices aren't due to disability, they're due to him being the man the voters selected four years ago.
I disagree though about impeachment. Attempting to subvert the Constitution is a violation of his oath of office and of the public trust, and though not an ordinary crime or misdemeanor that does qualify as a high crime or misdemeanor.

[Seamus]

So I guess following legal procedures with respect to counting electoral votes = attempting to subvert the Constitution.

[not guilty]

How was the disruption at the Capitol yesterday ¨following legal procedures with respect to counting electoral votes¨?

[Bored Lawyer]

I agree with you assessment. The Constitution has to be respected for the future. Removing the president because he is a jerk is not a great precedent to set.

[DaivdBehar]

Josh. Nice B law student legal analysis. But it is dishonest. It is a Democrat partisan political attack, seeking to reverse the 2016 election.

Nitpicking and pretextual uses of the law should be criminalized, with the penalties for perjury.

[Jaypd]

Here's the rub, Blackman. Trumpers. You lost. Your riot was ineffectual. Your representatives are garbage. And now, seditionists, the usa is coming for you.

[Dr. Ed 2]

There were also rallies in at least six state capitols yesterday.
No one died there, hence no news coverage.

[JSinAZ]

Cool! Show trials!

[AuBricker]

Can an "Acting" President issue pardons?

[ReaderY]

Yes. If Vice President Pence becomes Acting President, he can do anything a President could do.

Including pardoning people. He could pardon Mr. Trump.

[John F. Carr]

If the outcome depends on whether acting cabinet members count it will be very bad, because there is no obvious process to answer the question. You could have half the government following Pence and the other half following Trump. In the case of disputed bills (see Deficit Reduction Act of 2005) there is a set of people who decide whether the bill passed. There is a process for resolving disputes over wording of constitutional amendments, as many tax protesters have found. But we haven't been here before. The amendment doesn't say the leaders of Congress have any role, it only requires that they be notified.

[Jerry B.]

If the Cabinet tries to apply the 25th Amendment, President-in-waiting Harris will be taking notes.

[SMP0328]

Trump will be removed from office via the 20th Amendment. Also, the 25th Amendment never can remove anyone from office. Even if two-thirds of each House of Congress agreed that the President was disabled, that would mean only that the Vice President would remain Acting President. For removal before the end of the term, you need to use the impeachment process.

[not guilty]

Impeachment can also be pursued after expiration of the term. Trump would be subject upon conviction to disqualification from future federal office.

[jdgalt1]

More than anything else, this proposal puzzles me as to its motive. Now that Congress has overruled the objections -- just what are the proposers afraid that Trump will do with his powers between now and January 20? The military have already said they won't follow any orders to intervene in the election issue.

About the only coherent answer I can think of is that the perpetrators of the fraud (or maybe the Biden family, worried about the contents of Hunter's laptop) are afraid Trump might appoint a special prosecutor who could put some of them away.

If Trump doesn't have the right to do this (and have the prosecutor retain his powers after January 20) he ought to have.

[not guilty]

Trump has now reportedly conceded the election and condemned the attack on the Capitol. https://reason.com/2021/01/07/trump-returns-to-twitter-concedes-election/

Perhaps this is to defuse 25th Amendment rumblings.

[David Nieporent]

I have seen more sincere hostage videos.