Impeachment v. the 25th Amendment
Following the assault on the capitol by right wing thugs encouraged and incited by Donald Trump, it has become imperative to remove Trump from office even though he only has a few days remaining in his term. Allowing him to finish out his term not only imperils the country by leaving this man, who this week encouraged a violent incursion into symbolic heart of the government, in office, but would also send a message that his actions are somehow okay and acceptable.
There are two approaches that can be taken to remove Trump from office, impeachment and the 25th Amendment. Neither will be easy particularly given time constraints. The former requires a majority of the House and two thirds of the senate. The 25th Amendment is more complex and would likely require action from Vice President Pence and much of Trump’s rump cabinet.
The logistics are not the only major difference between impeachment and the 25th Amendment. Impeachment is a political and legal process. It was created by the founders as a way to remove a president who has committed “high crimes and misdemeanors” or otherwise betrayed the country through his actions. The 25th Amendment is not simply another form of impeachment. It was passed in 1967 and sought to do to both clarify issues around succession and the vice-president’s role as well as to provide a contingency if a president is unable to continue serving. The 25th Amendment was not meant to remove a president for breaking the law or betraying the country, but to replace a president permanently or temporarily incapacitated. The 25th Amendment may apply now because of Trump’s mental state, but proving that, particularly given that he his behavior has been erratic and unhinged for years, would be difficult.
Impeaching Trump would be an unambiguous condemnation of Trump’s actions, while the 25th Amendment would confirm Trump’s mental incapacity without meaningfully judging his actions on Wednesday and during the days and weeks leading up to those events. Impeachment is the better solution because it would be a stronger statement, but also because Congress could, as part of the impeachment, bar him from running for office again. It is also possible to impeach the Trump even after he leaves office. That would make it possible to bar him from running for office, but would be politically dangerous because given the pandemic and economic crises facing the country, the optics of congress beginning a new term by impeaching a former president would not be great. The 25th Amendment comes with no such sanction because some medical conditions are temporary. For example, President George W. Bush twice invoked the 25th Amendment and turned the powers of the office over to Vice-President Dick Cheney. In both cases this was only for a few hours while he was undergoing a medical procedure.
It may not be possible to remove Trump from office even if the House of Representatives were to impeach him, although there would be more Republican support for removing him than there was in early 2020. Nonetheless, beginning the process, thus forcing every member of congress to reveal where they stand would politically smart as well as the responsible and patriotic thing to do.