U.S. President Donald Trump had reportedly never heard of the constitution’s 25th Amendment until former chief strategist Steve Bannon told him he thought it was the biggest threat to his administration.
It’s safe to say that until he became president many people had never heard of it either.
A Cold War-era bit of constitutional housekeeping, the amendment sets out rules for replacing a president “unable to discharge the powers and duties of his office,” a situation left otherwise undefined.
In recent weeks, however, Republican Senator Bob Corker warned that Trump was “on the path to World War Three,” a stone-faced Secretary of State Rex Tillerson refused to deny calling Trump a “f*ing moron”, and reports are emerging that Trump is given to belittling vice-president Mike Pence in private.
Trump has shown a taste for humiliating powerful men whose support he needs (a presidential tweet referred to “Liddle Bob Corker,” and Tillerson had to respond to a suggestion from Corker that Trump’s clashes with him over foreign policy had left him “castrated“).
WATCH: The strained relationship between Donald Trump and Rex Tillerson came under renewed focus Sunday.
Here’s how the rules work:
- If the vice-president and at least half the U.S. federal cabinet (eight of them) declare the president “unable to discharge the powers and duties of his office,” the vice-president becomes acting president on the spot;
- The president can either dispute this or not. If he does, Congress votes on whether he is deposed. For him to stay deposed, two-thirds majorities in the House of Representatives and Senate would have to agree.
How might this play out in the real world?
Something extreme would have to trigger it.
For both Republicans and Democrats, there are strong incentives to do nothing. Democrats may want to wait until the 2018 midterms and run against a historically unpopular president. Republicans have much to lose personally by making enemies of Trump’s supporters. (Corker isn’t running for re-election.)
As with any human situation that involves sticking your neck out, there are as many rationalizations for not doing so, or not doing so right now, as creativity can come up with.
One thing that could change the calculation quickly, however, is a crisis involving Trump’s nuclear authority.
One paradox of the American system of checks and balances is that the president’s most extreme power has no constraints at all. With a phone call to the Pentagon from the White House, silos open, missiles are launched, millions of people are obliterated and the conditions of human life on the planet change. Officers involved in the process could refuse to co-operate, but the nuclear launch system will interpret that as damage and bypass it.
It’s not hard to imagine a crisis that leads at least some cabinet members to see triggering the 25th Amendment as unavoidable.
(Toward the end of Richard Nixon’s presidency, as he started drinking heavily and talking strangely about his nuclear authority, then-defense secretary James Schlesinger quietly ordered the Pentagon not to act on a nuclear launch order from the White House unless officers there had talked to him first.)
“I can see a point if reckless bluster and talk starts moving toward reckless action – at first there would be resistance from the foreign policy establishment, and you could imagine a situation where – I don’t want to use the term ‘military coup,’ but I imagine that there would be resistance to any ill-thought-out decision, particularly with regard to the use of nuclear weapons,” says University of Toronto political science professor Ryan Hurl.
“You could see a situation where Trump’s cabinet, if they were unable to prevent the president from engaging in rash actions, would resist, and that would be something like a constitutional crisis. It’s difficult to know what would happen after that point.”
(Hurl doesn’t expect the 25th Amendment to be used, “barring a complete mental breakdown of the president that would be obvious to anyone.”)
From start to finish, it can only be attempted once.
One important thing to remember about the 25th Amendment is that Trump has the power to fire his whole cabinet at will, if he wants to. If he got wind of a conspiracy, or if it came up a few votes short on the first attempt, he could simply replace them with loyalists and carry on. After that, it would be much harder to ever try it again.
So it would have to be prepared in conditions of total discipline and secrecy and only started if there was a certainty of success.
The whole necessary process of lining up votes, persuading the nervous, promising rewards and so forth would be filled with risk. At every stage where another cabinet member had to be negotiated with and persuaded, the plan itself would be at risk.
“No member of the cabinet, certainly not Mattis or Kelly, would pursue invoking the 25th Amendment unless they could be sure of victory,” Hurl says. “Military people understand the need to win with overwhelming force. They would not proceed with it if the circumstance was in doubt.”
The constitution allows Congress to create a body which would also have the power to trigger the 25th Amendment, but that has never happened. Earl Blumenauer, a Democratic representative from Oregon, has proposed giving living former presidents and vice-presidents the authority. (That group, if ever assembled, would have 10 members: six Democrats and four Republicans. Three would be in their late 80s or 90s.)
Making it stick would need serious support from Republicans in both houses of Congress.
There are GOP majorities in both the House and Senate. Assuming that all Democrats and independents voted to trigger the amendment, it would still need at least 19 Republicans in the Senate and 95 in the House.
The Republicans who would have to vote to depose Trump would not be voting on a do-over of the 2016 election — Pence is a very conservative Republican. Still, the vote would expose the rift between the pragmatic, business-friendly wing of the party and the more populist wing that has been strengthened by partisan right-wing media outlets in the past few years. Democrats, for their part, would be voting to install the most right-wing president for generations.
“For a large number of Trump’s supporters, it would bring the legitimacy of American government into question, rightly or wrongly,” Hurl says. “Things can always get worse, and the amount of political tension that we experience now in the United States would be exacerbated to an incredible extent if President Trump was removed from office through collusion between the Democratic Party and Republicans opposed to Trump.”
What would the White House be like if the attempt failed?
What if Pence and most of the cabinet voted to depose Trump, but it came up a few votes short in the House? Trump would return to the Oval Office, and it’s not hard to imagine a purge of the disloyal, who might also be the pragmatists with links to mainstream Washington — Mattis, Kelly, Tillerson — people who Corker praised as “those people that help separate our country from chaos.”
“If it was a kind of cabinet revolt, one would imagine that Trump would remove any cabinet officials who had expressed any kind of disloyalty,” Hurl says. “Trump as of now seems to be able to accept a considerable amount of disharmony in his cabinet.”
(One irony: if the process failed, Pence himself couldn’t be removed — he’s an elected official in his own right.)