25th Amendment: What it is, why it wasn't invoked to remove Trump from office
The House of Representatives voted Tuesday night to formally call on Vice President Mike Pence -- with the approval of cabinet secretaries -- to activate the 25th Amendment and assume the powers of the presidency, thereby removing President Donald Trump from office. Shortly before the vote, Pence said in a letter to House Speaker Nancy Pelosi that he won't do it.
"I do not believe that such a course of action is in the best interest of our nation or the Constitution," Pence said in letter.
The House voted anyway, passing the resolution 223 to 205 and sending a now-symbolic message to the vice president. Pelosi had said she would give Pence 24 hours to respond to the resolution before beginning the impeachment process.
The House is expected to begin a vote on impeachment by 12:45 p.m. PT (3:45 p.m. ET) -- here's how you'll be able to watch the House's impeachment vote live.
The House vote and Pence's response follow last week's attack on the US Capitol building by hundreds of Trump supporters, which Trump is widely seen as having encouraged in a speech immediately preceding the Jan. 6 insurrection. The riot resulted in five deaths and at least 120 arrests for, among other things, the destruction of federal property. Social networks banned Trump's accounts, some cabinet members and staffers resigned, and some businesses have cut ties or dropped their support for legislators who supported Trump. Trump called the actions a "witch hunt" on Tuesday and defended his speech as "totally appropriate."
"The 25th Amendment is of zero risk to me," Trump said Tuesday afternoon during an event in Texas -- his first public event since the Capitol attacks.
Read more: FBI, DOJ provide update on Capitol riot arrests amid concern about future attacks
As vice president, only Pence has the power to begin the process of invoking the 25th Amendment (more below) to immediately become acting president until the Jan. 20 inauguration of President-elect Joe Biden. Use of the 14th Amendment has also become a source of conversation in legal circles.
How is the 25th Amendment different from impeachment and what happens now that Pence says he won't invoke it? How has Trump been affected by the 25th Amendment before? We explain below, including where the situation stands now.
Read more: Could Trump pardon himself before leaving office? What to know
Who has called for the 25th Amendment?
Before the vote, nearly 250 Washington lawmakers -- in the House and Senate, from both parties -- had called for Trump's removal. Pelosi, in a letter to colleagues, called Trump "an imminent threat" to democracy and the US Constitution after he repeated lies about the November election he lost and urged supporters at the Wednesday rally to march to the Capitol as it began the process of certifying Biden's Electoral College win, and told them to "fight much harder" and "show strength."
"The president's speech was riddled with violent imagery and calls to fight harder than before," noted the New York Times in its analysis of Trump's remarks. "By contrast, he made only a passing suggestion that the protest should be nonviolent, saying, 'I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.'"
During Trump's impeachment that started at the end of 2019, one of his defenses was that the primary accusation against him -- that he had abused his presidential power by withholding aid to Ukraine in an attempt to get its president to announce a corruption investigation into Biden -- wasn't an ordinary crime, so it didn't matter even if it were true. Most legal specialists said that made no difference for impeachment purposes, but in any case, that argument would not be a defense here. Several laws clearly make it a crime to incite a riot or otherwise try to get another person to engage in a violent crime against property or people.
Why has Pence said he won't invoke the 25th Amendment?
Before he sent the letter, Pence had not made a public statement about his position on using the 25th Amendment to remove Trump from office. However, on Tuesday, the New York Times reported that Pence and Trump had spoken for more than an hour about the riot and Trump's remainder of the term, suggesting early in the day that Pence would not act.
Pence has reportedly been on the fence about his actions. On Sunday, CNN reported that the vice president had "not ruled out" invoking the 25th Amendment, wanting to leave the option open in case Trump becomes unstable, CNN reported, citing a source close to the vice president. According to the source, Pence has been concerned about Trump's potential behavior if the 25th Amendment or impeachment should occur, potentially leading to actions that may endanger the nation.
In his letter sent Tuesday night, Pence said invoking the 25th Amendment now "would set a terrible precedent."
How does the 25th Amendment to the US Constitution work?
The 25th Amendment pertains to the president's ability to perform the duties of office and what happens in the event that the president can no longer do the job. It empowers the vice president to temporarily assume the powers of the presidency, enabling a smooth transition of power in an emergency.
The amendment also enables the president to nominate a vice president if there's a vacancy.
Read more: Why the First Amendment can't protect Trump on Twitter or save Parler
The part of the 25th Amendment under discussion generally relates to Section 4, which allows the vice president and a majority of the president's cabinet or a group designated by Congress to declare, in writing to the Senate president pro tempore and House speaker, that the sitting president is unable to perform the duties of the office. This immediately makes the vice president the acting president.
The president can resist this effort by the vice president and Congress, however, declaring him or herself fit for office in official writing. From there, the vice president and those supporting impeachment have four days to disagree, or the sitting president resumes the presidency. If they disagree, Congress can settle the matter with a vote.
What happens now that the 25th Amendment option has fizzled?
The 25th Amendment requires the vice president and Cabinet members to support and initiate the invocation. With at least three Cabinet members having resigned -- Education Secretary Betsy DeVos, Transportation Secretary Elaine Chao and acting secretary of Homeland Security Chad Wolf -- and Pence rebuffing demands to begin 25th Amendment proceedings, House Democrats seem to be prepared to start the potentially lengthy process to impeach Trump for the second time in his four-year term.
Here are the details we know, including when impeachment is expected to come to a vote and what the outcome could mean for Trump even after Biden is sworn in as the 46th president of the United States. Now that Pence has declined to invoke the amendment, the House will look to take up impeachment Wednesday.
In addition, there's been talk about using the 14th Amendment -- specifically Section 3 -- to remove Trump from office. In simple terms, Section 3 says that if a person has engaged in an "insurrection or rebellion" against the US, they cannot hold office. Read the full section below. But constitutional law experts say that this option is unlikely, as the 14th Amendment has never been used to oust a sitting president before.
Section 3 of the 14th Amendment says:
What Trump did that could justify removal from office
Before chaos erupted on Capitol Hill on Jan. 6, Trump had told supporters at a rally nearby that "we will never give up, we will never concede." Trump's tweets, some of which were deleted or blocked by Twitter, continued to spur the crowd.
"We're going to walk down Pennsylvania Avenue ... and we're going to the Capitol," Trump said at the rally. Afterward, supporters marched to the Capitol, where violent rioters broke past barricades, smashed windows and doors, attacked Capitol police and unlawfully entered the building, prompting members of the Senate and House to be sequestered to ensure their safety. Hours passed as constituents and lawmakers urged Trump to call for the mob to stand down.
Officials in the Trump administration said that Pence, and not Trump, had approved an order to deploy the DC National Guard. This authority is traditionally reserved for the president.
Trump eventually gave a brief taped statement on Wednesday telling the rioters to go home, calling them "special people" and adding, "We love you," even as he continued to circulate false claims of voter fraud.
As night fell, social media cracked down on Trump, with Twitter and Facebook flagging and deleting multiple posts, as well as placing temporary locks on the president's accounts.
On the morning of Jan. 7, Trump committed to an "orderly" transition of power, and on Thursday night, condemned the riots he had a direct hand in inciting. On Jan. 8, Twitter permanently banned Trump's account "due to the risk of further incitement of violence" and said reports are already circulating that rioters may storm the Capitol again on Jan. 17 -- days ahead of Biden's Jan. 20 inauguration.
What has to happen for the 25th Amendment to take effect?
The invocation of the 25th Amendment is considered extraordinary and this use of the amendment's Section 4 would be unprecedented: A variety of conditions must come together for the vice president to assume the duties of the president this way.
For Section 4 of the 25th Amendment to take effect, the vice president would need to secure the support of a majority of the cabinet chiefs and then alert congressional leaders. Alternatively, Congress can designate another body instead of the cabinet. Following the vice president's notification of congressional leaders, the president can request the return of his presidential powers.
If the 25th Amendment had been invoked, Pence, 61, would have assumed Trump's presidential responsibilities. Trump, 74, could then have declared to the House speaker and the president pro tempore of the Senate that there was "no inability" for him to govern. At that point, it would have been up to Congress to decide on the matter within 21 days, which would have passed the Jan. 20 date when Biden takes office. That essentially meant that Pence would have served briefly as our 46th president and then passed on the presidential powers to Biden, who won the November election with 81.28 million votes, or 51.3 percent of the votes cast.
The Senate won't go back in session until Jan. 19 and would have needed to be called back, if it had come to that. Every senator would have had to unanimously agree to return before Jan. 19.
Why did Congress consider using the 25th Amendment against Trump before?
The 25th Amendment has been discussed before during Trump's presidency. On Oct. 1, Trump announced on Twitter that he and first lady Melania Trump had tested positive for COVID-19.
Following his coronavirus diagnosis and hospitalization, Pelosi introduced legislation that would allow Congress to enact the 25th Amendment if the president became incapacitated, although she insisted at the time that the legislation wasn't specifically aimed at Trump.
When released from Walter Reed National Military Medical Center, Trump, while still under physician supervision and being treated with the steroid dexamethasone, abruptly stopped stimulus check negotiations, only to reinstate them hours later, and offered a stimulus package that ultimately fizzled out. Congressional Democrats discussed invoking the 25th Amendment, but didn't bring the matter to a vote.
Has the 25th Amendment ever been used to remove a president from office?
Section 4, the portion largely referenced in recent days, has never been enacted, only coming close once during an attempted assassination of President Ronald Reagan in 1981.
Congress approved the 25th Amendment in 1965. It was ratified and certified as an amendment the following year by President Lyndon Johnson.
The first use of the other sections of the 25th Amendment came in 1973 when President Richard Nixon nominated Gerald Ford to replace Vice President Spiro Agnew, who had resigned. The amendment was used once more when Nixon resigned and Ford assumed the presidency and chose Nelson Rockefeller to fill the vice presidency.
Most recently, President George W. Bush twice invoked the 25th Amendment to temporarily transfer the powers of the presidency to Vice President Dick Cheney while Bush underwent colonoscopies under anesthesia, first in 2002 and again in 2007. In 1985, his father, then-Vice President George H. W. Bush, received 25th Amendment authority from President Ronald Reagan.