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Explaining the 25th Amendment: "It's unlikely to happen"

Political science, constitutional law experts weigh in on invoking 25th Amendment
Explaining the 25th Amendment: "It's unlikely to happen this week"
Posted at 2:08 AM, Jan 08, 2021
and last updated 2021-01-08 04:51:55-05

SOUTHERN COLORADO — Following the destructive riot inside the U.S. Capitol on Wednesday, national leaders are looking for ways to end President Donald Trump's time in office early. Methods being discussed include invoking the 25th Amendment of the U.S. Constitution, or a second attempt at impeachment.

House Speaker Nancy Pelosi and Senator Chuck Schumer asserted on Thursday morning that Vice President Mike Pence should invoke the 25th Amendment, which would force President Trump out of office before President-Elect Joe Biden's inauguration. "This is urgent, this is an emergency of the highest magnitude... If the Vice President and Cabinet do not act, then Congress may be prepared to move forward with impeachment," said Speaker Pelosi.

However, reading through the amendment can be confusing. "The 25th Amendment is one of the greyest areas of our Constitution," said Tom Cronin, a retired professor of political science, who worked at Colorado College.

Cronin taught political science for around 50 years, and even worked in the White House in the 1960's during the Johnson Administration. He helped explain what the 25th Amendment means, specifically when it comes to Section Four. "It involves a convoluted process, where the vice president and half of the Cabinet would write a letter to Congress, saying the president is unable to exercise his responsibilities or her responsibilities... The president can turn around and say 'that's not true,' and write a letter saying 'I'm fine and I can be president'... And then the vice president and half the Cabinet can get together, send another letter, and then Congress can convene, and if they had two-third of the vote supporting the vice president in both chambers, then the vice president could be acting president," said Cronin.

Professor of Law at the University of Denver’s Sturm College of Law, Alan Chen, discussed why this amendment was added to the Constitution. He said it laid out a clear succession in the case of a president's death. "The 25th Amendment was enacted in the 1960's in response to the assassination of JFK. Before that, there wasn't a clear rule of succession in the case of the president's death," said Chen.

Chen said the amendment has mainly been used in the past when a president was going into surgery and would be sedated for a period of time, so the vice president would assume the role.

Chen raised the point that invoking Section Four of the 25th Amendment has a number of steps. "It does involve a lot of back and forth, which would take some time. And of course, we only have 12 days left in President Trump's presidency," said Chen.

One of the vague portions of the amendment is the lack of clear criteria about what exactly qualifies as a president being unable to discharge their duties, according to Chen. "We have to be careful about invoking these sort of emergency provisions of the Constitution... Better to be cautious about invoking the 25th Amendment, than to start creating some precedent that could be dangerous," said Chen.

With less than two weeks left in President Trump's term, News5 asked if there is enough time to actually invoke the 25th Amendment. "Possibly, in theory, they could do it that quickly, but as we've already discussed, there are timelines within the 25th Amendment, and the House of Representatives is already in recess until the inauguration, so they would have to come back into session to do that," said Chen.

Cronin added that it is unlikely the amendment will actually be invoked. "I'm sorry, in a way, that many of our national leaders are throwing it out as if it's a likely possibility... I also think this will boil over, and we'll somehow muddle through until January 20th," said Cronin, who also believes it will be difficult for Congress to implement impeachment.

Congressman Ken Buck, in an interview posted on his Twitter, said there is a lot of blame to go around, but the president deserves some of the blame for Wednesday's riot. He also said he would not support invoking the 25th Amendment to remove President Trump from office, and that it would set a "bad precedent" to do so.

Every congressional Democrat for Colorado stated they support invoking the 25th Amendment or impeachment.

Senators Michael Bennet and John Hickenlooper also expressed support for removing the president from office early.

Colorado Congresswoman Dianna DeGette said new articles of impeachment against the president will be introduced on Monday. She also said she will be one of the sponsors of the articles.

A simple majority by the House of Representatives would be necessary for impeachment, and then the matter would be sent to the Senate. Impeachment would have to be confirmed by a two-third majority vote in the Senate, which did not happen in February of 2020.

If another try at impeachment were to hypothetically succeed, a subsequent vote in the Senate could bar President Trump from holding federal office in the future.