Certainly, House members have grounds to act, but they’re taking a wrong turn: The 25th Amendment isn’t impeachment-lite. To remove President Trump, impeachment is the only correct constitutional mechanism.
Democrats have a predicate: In his speech last Wednesday rehashing unfounded claims that November’s election was “stolen,” Trump told supporters: “We’re going to walk down to the Capitol” to cheer on members of Congress trying to procedurally derail the electoral college vote count, adding, “you’ll never take back our country with weakness. You have to show strength, and you have to be strong.”
Though Trump didn’t expressly call for a physical breach of the Capitol, within hours, a pro-Trump mob did just that in a riot that left five dead — and the impeachment article charges “incitement to insurrection.”
It’s reasonable to debate the political pros and cons of impeaching a president just days before he’s scheduled to leave office, and whether or not such a step should be fast-tracked. It’s also predictable, if not understandable, that many Republicans in Congress won’t go along, and that even if Trump is impeached for a second time by the House, he likely won’t be convicted by the Senate. But while Pelosi’s ultimatum to impeach if the 25th Amendment isn’t invoked might be shrewd politics — allowing Democrats to say hey, we tried everything — it’s not the appropriate process.
The 25th Amendment was debated, passed and ratified in the years after the assassination of John F. Kennedy and the ascension of Lyndon B. Johnson. It allows presidents to voluntarily pass presidential powers to the vice president for fixed times in cases of temporary incapacity, such as undergoing surgery that involves general anesthesia — something that Ronald Reagan and George W. Bush did during their tenures. The amendment’s Section 4 provides for the vice president, with the support of the majority of the Cabinet, to assume powers as “acting president” upon “written declaration that the President is unable to discharge the powers and duties of his office.”
Section 4 of the Amendment lays out the process by which the president may respond to the “written declaration” of his incapacity and tell Congress that he’s no longer “unable” and will reassume presidential powers. It further explains how the vice president and Cabinet may challenge that declaration, how the president can dispute that counter-declarations and how Congress is supposed to adjudicate the competing claims.
The 25th Amendment was designed to address a situation in which the president lacks capacity to carry out the functions of the job. It is not meant for the current situation — where the president is accused of violating his oath of office, encouraging sedition and posing a danger to the republic if he remains in office. Charges of presidential misconduct are categorized in Article II, Section 4 as “high Crimes and Misdemeanors.” Indeed, Democrats have now leveled such charges: the newly-introduced impeachment article says that Trump “willfully made statements that, in context, encouraged — and foreseeably resulted in — lawless action at the Capitol.”
In other words, Democrats aren’t alleging that Trump can’t do his job, they’re charging that he won’t do it properly according to his oath. Only impeachment can reach that kind of misconduct. And to proceed with impeachment, Congress need not find that Trump violated a specific federal statute but instead seriously injured the republic.
Trump’s 2019 House impeachment and 2020 Senate trial dragged on for weeks, as did the impeachment and trial of Bill Clinton. Section 3 of the 14th Amendment doesn’t expressly address removal of an incumbent, though it could be read as making Trump ineligible if he were deemed to have participated in an insurrection. By contrast, the 25th Amendment appears, at least in theory, to be a fairly explicit process for transferring the executive power to the vice president. Unlike censure, it has teeth; it’s easy to think of it as a lighter form of impeachment.
But treating the 25th Amendment as an alternative or interim step on the way to impeachment is a misapplication of its purpose, and doing so wrongly suggests to the body politic that Congress can pick and choose the path of least resistance from a buffet of constitutional options. It can’t — the Constitution makes that choice for us. As legal scholar Charles L. Black Jr. explained in “Impeachment: A Handbook” (widely regarded as the definitive essay on impeachment), this option should never be lightly considered or used: “I confess,” he wrote, “to a very strong sense of the dreadfulness of the step of removal, of the deep wounding such a step must inflict on the country, and thus approach it as one would approach high-risk major surgery, to be resorted to only when the rightness of diagnosis and treatment is sure.”
For the second time, the House will take that chance with Trump. In making its decision, it must weigh the risks of doing something against those of doing nothing. Failing to act risks creating a precedent of the Congress standing aside when attacked by a president determined to undermine it. Trying to impeach and bar the president from ever again serving as president creates a different precedent, even if impeachment fails, demonstrating that Congress will defend its place in the constitutional order as the heart of our democracy and as the principal check on a president who cannot live with the democracy we have. There will be debate about whether the “diagnosis and treatment” are correct, but what is clear is that impeachment would be called for, not the 25th Amendment.
Correction: An earlier version of this article said that George H.W. Bush and George W. Bush temporarily transferred power. The two presidents were Ronald Reagan and George W. Bush.