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Reminder: The 25th Amendment requires political apocalypse

People are again talking about using the 25th Amendment as a means to remove President Donald Trump from off...

Posted: Sep 22, 2018 2:13 PM
Updated: Sep 22, 2018 2:13 PM

People are again talking about using the 25th Amendment as a means to remove President Donald Trump from office, and they're doing it more seriously.

The New York Times reported Deputy Attorney General Rod Rosenstein wanted to record conversations with Trump after the President fired FBI Director James Comey in 2017 and that Rosenstein also discussed enlisting Cabinet members to consider using the 25th Amendment.

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Rosenstein denied the report Friday.

Earlier this month an anonymous administration official said in a New York Times op-ed that Cabinet secretaries had considered employing the 25th Amendment, but decided against pursuing it.

After that opinion piece, Democratic Sen. Elizabeth Warren of Massachusetts said it's time to employ the US government's equivalent of a bomb blast door to get rid of Trump.

"If senior administration officials think the President of the United States is not able to do his job, then they should invoke the 25th Amendment," Warren told CNN. "The Constitution provides for a procedure whenever the Vice President and senior officials think the President can't do his job. It does not provide that senior officials go around the President -- take documents off his desk, write anonymous op-eds. ... Every one of these officials have sworn to uphold the Constitution of the United States. It's time for them to do their job."

We already knew that Steve Bannon, Trump's former top strategist, was at one point convinced his Cabinet would mutiny and depose him using the 25th Amendment.

But this bears repeating for the third time: We still feel a very, very long way away from the kind of political momentum it would require.

Why?

Just look at who is publicly calling for its use: Warren, the Democratic senator from Massachusetts.

Who is not publicly calling for the 25th Amendment? Any serious Republicans with power. Even the anonymous senior administration official said the 25th Amendment was discussed and rejected early in Trump's presidency.

"Given the instability many witnessed, 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," wrote the official. That does not sound like a serious effort, according to the official, whoever he or she is.

Speaking of, nearly every Trump Cabinet member has denied writing the op-ed. The piece describes officials subtly steering the ship of state around Trump, not trying to throw him overboard.

It's a majority of those Cabinet officials, under the 25th Amendment, who would have to vote, twice, to kick Trump out of office. Then supermajorities in the House and Senate would have to follow suit in short order.

What would it take to employ the 25th Amendment? As we've written before, there are a few scenarios that leap to mind (and read these articles by Brian Kalt and David Pozen for some more context) in which the 25th Amendment could be invoked:

  • The President was completely and totally incapacitated after a freak medical accident.
  • The President goes missing, walks off the job or is kidnapped.

In either of these examples, the President would be unable to dispute the action of his Cabinet, so invoking the amendment would just take the Cabinet writing to Congress.

What about something like avoidable, imminent nuclear war? It's hard to imagine all of this happening quickly enough to be effective. You'd almost need his subordinates to willfully break the law and ignore his order to launch a nuclear attack -- or be prepared to -- to delay action in the heat of the moment. There could be precedent for that, by the way. Richard Nixon's defense secretary James Schlesinger later said that in the final days of the Nixon presidency, staffers had been instructed to check with him or then-Secretary of State Henry Kissinger before launching an attack.

Speaking of Nixon, impeachment, the serious idea of which also seems far-fetched at this point with regard to Trump, is written into the Constitution as a more appropriate avenue to remove a President.

This post was originally published September 6 and has been updated.

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