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Why the 25th Amendment continues to be raised to remove Trump from power

WASHINGTON – In the more than 50 years since the Constitution was amended to create a way to remove a president unable to do his job, the process has never been triggered.

But throughout Donald Trump's presidency, the 25th Amendment has come up again and again as a possible means of removing Trump to put Vice President Mike Pence in charge.

With days left in his tenure, the amendment was mentioned again after Trump supporters violently stormed the Capitol on Wednesday to protest the results of the presidential election that Joe Biden won.

The head of the National Association of Manufactures said Trump incited the violence in an attempt to retain power and Pence should consider triggering the amendment to preserve democracy.

"This is sedition and should be treated as such," said Jay Timmons, the group's president and CEO.

He was joined by a growing chorus of calls that included the head of the left-leaning advocacy group Public Citizen, the head of the NAACP and Vermont Gov. Phil Scott, a Republican.

Donald Trump listens as Vice president Mike Pence answers questions during the daily briefing of the coronavirus task force in the Rose Garden of the White House on April 27, 2020 in Washington, DC.

"President Trump should resign or be removed from office by his Cabinet, or by the Congress," Scott said in a series of tweets.

Hundreds of political scientists have signed a letter saying Trump should be immediately removed either through impeachment or the 25th Amendment.

Here's what you need to know:

What is the 25th Amendment?

The amendment, ratified in 1967, created a legal mechanism for designating a head of state when the president is disabled or dead. It also formalized the historical practice for the vice president to permanently take over if the president dies or resigns, and gives the president and Congress shared power to replace a vice president.

Why was it written?

John F. Kennedy’s assassination brought renewed interest to presidential succession questions. Lyndon B. Johnson’s ascension to the presidency meant that – for the 16th time – the country had no vice president. And there was no tested way of dealing with a severe presidential illness. Johnson previously had suffered a heart attack and the next two people in line to be president were the 71-year-old speaker of the House and the 86-year-old president pro tempore of the Senate.

Has it been used before?

Gerald Ford followed the first two sections of the amendment when becoming Richard Nixon’s vice president after Spiro Agnew resigned and when he become president after Nixon’s resignation. The amendment’s third section, which allows for a president to temporarily cede power and duties to a vice president, was used once after Ronald Reagan underwent surgery in 1985 and similarly when George W. Bush was under anesthesia in 2002 and 2007. The fourth section, a process for removing a president when others believe he is “unable to discharge the powers and duties of his office,” has never been used.

Protesters climb over walls at the U.S. Capitol as  Congress met to formally ratify Joe Biden as the winner of the 2020 presidential election Jan. 6.

When did the author intend the 4th section to be invoked?

Late former Sen. Birch Bayh wrote in his book “One Heartbeat Away: Presidential Disability and Succession” that he knew the most controversial aspect of the amendment he authored would be how to handle the rare instances when a president’s team disputed his ability to serve.

“You know, fellows, we've talked about this problem a hundred times,” Bayh recounted, telling his aides when they were in the final stages of negotiation. “The only time it would present itself – the only time the president would say 'I'm well and able' and the vice president and cabinet would disagree – would be if the president was as nutty as a fruit cake.”

Why the renewed interest?

The amendment got new attention after Trump's inauguration and re-emerged as a top talker after some of Trump's controversial comments and actions, or because of inside reports about the workings of the White House. 

In 2017, for example, Trump triggered questions about his stability when he tweeted he has a bigger "nuclear button" than Kim Jong Un of North Korea.

Michael Wolff’s “Fire and Fury,” painted a picture of a president not up to the job.

“It's not unreasonable to say this is 25th Amendment kind of stuff,” Wolff said in a 2018 appearance on NBC’s "Meet the Press."

In an opinion piece published anonymously by the New York Times in 2018, a former top aide at the Department of Homeland Security wrote that Cabinet members had "whispered" about invoking the 25th Amendment because of Trump's increasing erratic behavior.

Soon after, the New York Times reported that Deputy Attorney General Rod Rosenstein discussed invoking the 25th Amendment when the White House had been plunged into chaos after the firing of FBI Director James Comey. Rosenstein called the story "inaccurate and factually incorrect."

Andrew McCabe, former acting director of the FBI, said in 2019 that the suggestion came up more than once and was so serious it was discussed with FBI lawyers.

The Justice Department disputed McCabe's characterization of discussions about the 25th Amendment but did not deny that they had taken place. 

When Trump contracted COVID-19 last year, the amendment was mentioned as a backup if his condition worsened and the disease affected his thinking.

How could the 25th Amendment be triggered?

The vice president and a majority of the Cabinet could declare the president unable to “discharge the powers and duties of his office.” If the president disputes that determination, two-thirds of both the House and the Senate must vote to put the vice president in charge.

In addition, lawmakers can designate through legislation an alternative group – other than the Cabinet – that the vice president could work with to declare a president unable to serve.

Is the amendment clear on what qualifies as an inability to serve?

No. And Jay Berman, one of the Bayh aides who worked on the amendment, said that was intentional.

“It didn’t settle the issue of what it is,” he said in an interview. “It provided a mechanism for addressing the issue.”

Would a psychiatrist or other doctor need to weigh in?

Bayh assumed the vice president would consult with medical experts, but the drafters never felt comfortable that the decision would be made solely by a group of doctors, according to Berman. Section 4 was not intended to overturn the verdict of the electoral system, or to be a substitute for impeachment, Berman said.

“It was certainly on our mind that the impeachment proceeding was still something that was available in the case of a president that had violated his oath or hadn’t performed his duties,” he said. “That truly should be the first line of defense in any case where there’s an issue about removing the president.”

Is it likely to be used?

Donald Trump congratulates vice presidential candidate Mike Pence at the 2016 Republican National Convention.

Pence has never indicated that he questioned Trump’s ability to be president.

In 2019, Pence called "any suggestion" of triggering the amendment "absurd."

Despite Pence’s unfailing loyalty to Trump, however, the president rebuked him Wednesday after Pence said he would not break the law and use his constitutional position as president of the Senate to try to stop Congress from counting the electoral votes.

“Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution,” Trump tweeted in a post that Twitter removed Wednesday evening.

Nebraska Sen. Ben Sasse, a Republican, said Wednesday's violence "was the inevitable and ugly outcome of the President’s addiction to constantly stoking division."

"Today, the United States Capitol — the world’s greatest symbol of self-government — was ransacked while the leader of the free world cowered behind his keyboard — tweeting against his Vice President for fulfilling the duties of his oath to the Constitution," Sasse tweeted.

He didn't suggest Pence should replace Trump for the remainder of his term, but Florida Rep. Charlie Crist did.

“The 25th Amendment allows for the removal of a President,” tweeted Crist, a former GOP governor who became a Democrat in 2012. “It's time to remove the President.”