25th Amendment

The anonymous New York Times op-ed criticizing Trump has brought discussion of the 25th Amendment into the mainstream. But what would actually invoking it look like?

In the op-ed, the unnamed author mentioned that they, along with other senior members of the administration, had conversations about invoking the 25th Amendment of the U.S. Constitution as a way of getting President Trump out of office. Additionally, former White House staffer Omarosa Manigault Newman alleges that White House staff sometimes used the hashtag #TFA to refer to the 25th Amendment without rankling the suspicions of their boss.

But since the 25th Amendment has never once been used against a sitting president, actually applying it would be venturing into uncharted legal territory. Erwin Chemerinsky, dean of the University of California-Berkeley law school, told Grit Post in an email that it’s not likely Trump would be ousted by way of the 25th Amendment. However, actually using it is fairly straightforward.

“It’s all uncertain because Section 4 never has been used,” Chemerinsky wrote. “The Vice President and a majority of the Cabinet would need to offer a written declaration ‘that the President is unable to discharge the powers and duties of his office.’ … The Vice President then immediately becomes the Acting President.”

“The President then can provide a written declaration that he able to perform the job and he resumes being President,” he continued. “The Vice President and the majority of the Cabinet then can declare the President unable to perform the duties. It then goes to Congress. It takes a 2/3 vote of both houses to deem the President unfit, otherwise the President remains in power.”

Despite the accusations from journalist Bob Woodward that some members of the White House are carrying out an “administrative coup d’etat,” Chemerinsky wrote that, in his view, the anonymous op-ed and unnamed sources calling Trump’s competence into question doesn’t constitute a coup.

“It is not a coup to criticize him,” Chemerinsky told Grit Post.

White House press secretary Sarah Huckabee Sanders is now suggesting the Department of Justice conduct an investigation into who actually wrote the op-ed, as essentially every senior cabinet-level appointee has denied writing it. While no one has yet come forward as of this writing, the BBC recently ran the op-ed through a linguistics program and found the style and vocabulary of the article most closely matched that of Vice President Mike Pence, who has said he would take a lie detector test “in a heartbeat” to prove he didn’t write the op-ed.

 

Carl Gibson is a politics contributor for Grit Post. His work has previously been published in The Guardian, The Washington Post, The Houston Chronicle, Al-Jazeera America, and NPR, among others. Follow him on Twitter @crgibs or send him an email at carl at gritpost dot com.

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