How the 25th Amendment could be used to remove Trump from office

The storming of the U.S. Capitol by supporters of President Donald Trump on Wednesday has prompted calls by some lawmakers to remove him from office before president-elect Joe Biden is sworn in on Jan. 20.

U.S. House Speaker Nancy Pelosi on Thursday called for Trump's immediate removal from office through the 25th Amendment of the U.S. Constitution, as did Chuck Schumer, the top Democrat in the Senate.

"Yesterday, the president of the United States incited an armed insurrection against America," Pelosi told reporters at the U.S. Capitol. She also said Trump committed a "seditious act" and said if Trump is not removed under the 25th Amendment, Congress may go forward with another impeachment.

And in remarks posted on Twitter, Rep. Adam Kinzinger, a Republican from Illinois, also called on Trump's cabinet to invoke the amendment.

"The president is unfit. And the president is unwell," Kinzinger said. He said Trump "must now relinquish control of the executive branch voluntarily or involuntarily."

There are two ways to remove a president from office: the 25th Amendment and impeachment followed by a Senate conviction. In either scenario, Vice-President Mike Pence would take over until Biden's inauguration on Jan. 20.

There have been some preliminary discussions among some cabinet members and Trump allies about invoking the 25th Amendment, a source familiar with the effort said.

What's the purpose of the 25th Amendment?

The 25th Amendment, ratified in 1967 and adopted in the wake of President John F. Kennedy's assassination in 1963, deals with presidential succession and disability. President Lyndon B. Johnson in his 1965 state of the union address promised to "propose laws to ensure the necessary continuity of leadership should the president become disabled or die." 

Section 4 addresses situations where a president is unable to do the job but does not step down voluntarily. This section, which allows the cabinet to declare the president unfit, has never been invoked.

The drafters of the 25th Amendment clearly intended for it to apply when a president is incapacitated by a physical or mental illness, experts say. Some scholars have argued it could also apply more broadly to a president who is dangerously unfit for office. 

WATCH | Assessing the likelihood of impeachment or 25th Amendment use:

Few workable options for removing Trump from office, says law prof

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The few constitutional tools available to remove U.S. President Donald Trump from office are unlikely to work, says Lawrence Douglas, a professor of law at Amherst College in Massachusetts, citing the level of co-operation required to use such tools and the short time frame before Trump leaves office.

Pence and the majority of Trump's cabinet would need to declare that Trump is unable to perform the duties of the presidency and remove him. Pence would take over in that scenario.

Trump could subsequently declare that he is capable of resuming the job. If Pence and the majority of the cabinet do not contest Trump's determination, Trump regains power. If they dispute Trump's declaration, the issue would then be decided by Congress, but Pence would continue to act as president until then.

A two-thirds majority of both chambers would be needed to keep Trump sidelined. But the Democrat-controlled House could simply delay voting on the substantive dispute until Trump's term ends, said Paul Campos, a professor of constitutional law at the University of Colorado.

Campos said the 25th Amendment would be an appropriate way to remove Trump from office and has the benefit of being quicker than impeachment.

"Pence could instantly become president, whereas impeachment and conviction could take at least a few days," Campos said.

Can Trump be impeached and removed?

Yes.

A misconception about impeachment is that it refers to the removal of a president from office. In fact, impeachment refers only to the House of Representatives, the lower chamber of Congress, bringing charges that a president engaged in "treason, bribery, or other high crimes and misdemeanors" — similar to an indictment in a criminal case.

WATCH | How Wednesday's events at the Capitol unfolded:

How the siege on the U.S. Capitol unfolded

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Duration 3:44

CBC News’ David Common breaks down what happened on Capitol Hill on Wednesday and how U.S. President Donald Trump stoked discontent among his supporters before he lost the election.

If a simple majority of the House's 435 members approves bringing charges, known as articles of impeachment, the process moves to the Senate, the upper chamber, which holds a trial to determine whether the president is guilty. The constitution requires a two-thirds vote of the Senate to convict and remove a president.

Trump was previously impeached by the Democrat-led House of Representatives in December 2019 on charges of abuse of power and obstruction of Congress stemming from his efforts to pressure Ukraine to investigate Biden and his son. Trump was acquitted by the Republican-led Senate in February 2020.

What high crime or misdemeanor could Trump be accused of?

Frank Bowman, a professor of constitutional law at the University of Missouri, said Trump "arguably fomented sedition," or an attempted overthrowing of the U.S. government.

But Bowman said Trump could also be impeached for a more general offence: disloyalty to the U.S. Constitution and failing to uphold his oath of office. Congress has discretion in defining a high crime and misdemeanor and is not limited to actual criminal offences.

"The essential offence would be one against the constitution — one of essentially trying to undermine the lawful results of a lawfully conducted election," Bowman said.