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25th Amendment: what is it, how is it invoked, how many times has it been used?

Following the chaos of the assault on the Capitol last night, Trump’s link to the unrest is under scrutiny as well as whether he is fit for office.

25th Amendment: what is it, how is it invoked, how many times has it been used?
Erin Schaff - Pool via CNP GTRES

Wednesday saw a tragic yet unsurprising culmination of two months’ endless misinformation, as well as four years of hateful, divisive rhetoric on the part of Donald J. Trump, the outgoing 45th president of the United States.

On the day that Joe Biden’s victory in November’s election was due to be ratified in Congress, a crowd of thousands of embittered, disillusioned fanatics - emboldened further by a day of combative speeches from Trump himself, his son Trump Jr. and Rudy Giuliani - extremist right-wing protesters stormed into the Capitol building in an act of insurrection, damaging government property and leaving four dead.

Now the US government is wondering how to proceed. Trump’s actions as a source of the events yesterday are undeniable. CNN reports that some Cabinet members are holding preliminary discussions about invoking the 25th amendment.

Adam Kinzinger was the first Republican lawmaker to suggest that the 25th Amendment should be invoked.

"The president has become unmoored, not just from his duty or even his oath, but from reality,” he said in a video statement on Thursday. "It is for this reason I call on the vice president and members of the cabinet to ensure the next few weeks are safe for the American people, and that we have a sane captain at the ship."

His statement joins calls from roughly 100 lawmakers urging the president's removal from office, through either his impeachment in Congress or through the 25th amendment of the US Constitution, which would require vice president Mike Pence and cabinet members to take action leading to Trump's removal.

Thursday afternoon top Democrat Chuck Schumer joined the ranks calling for Trump’s removal.

What is the 25th amendment?

The 25th amendment, ratified in 1967 following the assassination of John F. Kennedy created a process for designating a head of state when the president is dead, or disabled. It also formalised the line of succession, first in line being the vice president, who’d permanently take over if the president dies or resigns.

Section four of the 25th amendment of the US Constitution states that:

“Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

This means that vice president Mike Pence and either a majority in Congress or a majority of the principal officers of 15 executive departments of government would need to be in favour of invoking the 25th.

There are 15 executive departments - so, in effect eight federal department heads to agree to go forward. The 15 are: Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Labor, State, Transportation, Treasury, Veterans Affairs and Justice.

What constitutes being "unable to discharge powers/duties" is not spelled out and is open to interpretation. “Incapacity” is usually interpreted in this instance to mean health incapacity.

Has the 25th amendment ever been invoked before?

There are four sections to the amendment, all referring to separate scenarios.

Gerald Ford followed the first two sections of the amendment; first after Spiro Agnew resigned, to become Richard Nixon’s vice president and eventually to become president after Nixon’s own resignation.

The amendment’s third section, which allows for a president to voluntarily and temporarily cede power and duties to a vice president, was used once after Ronald Reagan underwent surgery in 1985. This was invoked a second time when George W. Bush was under anesthesia in 2002 and 2007.

The fourth section, a process for forcibly removing a president when others believe he is “unable to discharge the powers and duties of his office,” has never been invoked.

Author of 25th amendment: to be invoked when president is “nutty as a fruit cake”

According to USA Today,  late former Sen. Birch Bayh wrote in his book “One Heartbeat Away: Presidential Disability and Succession” that he knew the most controversial aspect of the amendment he authored would be how to handle the rare instances when a president’s team disputed his ability to serve.

“You know, fellows, we've talked about this problem a hundred times,” Bayh recounted, telling his aides when they were in the final stages of negotiation. “The only time it would present itself – the only time the president would say 'I'm well and able' and the vice president and cabinet would disagree – would be if the president was as nutty as a fruit cake.”

Is 25th amendment appropriate for Donald Trump?

One of the biggest roadblocks to the 25th amendment being invoked may not even be getting eight federal departments or Congress to agree, the vice president Mike Pence would need to be on board as well. Pence has notably never questioned Trump’s ability to serve as president.

Many are calling for impeachment instead, arguing that the 25th amendment leaves a president with all the privileges of resignation or retirement, as laid out in the Former Presidents Act. Privileges include a healthy pension, staff and office expenses, medical care or health insurance, and Secret Service protection. Some believe that in principle Trump should be impeached, therefore treated as a criminal to avoid leaving him with such comfort on leaving office.

Mitt Romney, the Utah senator who was the only Republican to vote to convict the President on an article of impeachment last year called the President a "selfish man" who "deliberately misinformed his supporters" about the election. Romney also called the attack on the Capitol an "insurrection" and blamed Trump, saying he "stirred [supporters] to action this very morning."

By impeaching and removing Trump, even at this late stage of his term, the Senate could subsequently vote to disqualify Trump from ever holding federal office again.