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What is invoking the 25th amendment and is it related to Trump's impeachment?

Donald Trump's second impeachment trial is about to begin. Why wasn't the 25th amendment invoked instead, and what's the difference between the two?

What is invoking the 25th Amendment and is it related to Trump's impeachment?
SAUL LOEB AFP

Former President Donald Trump's impeachment trial is about to begin in the Senate, for inciting a deadly insurrection at the Capitol on 6 January, 2021.

This will in fact be the second impeachment trial Trump has faced in the last four years, which begins in the Senate next week, on 9 February. House Democrats passed the motion to impeach the former president with a majority of 232-197 on 13 January. The yays included 10 House Republicans.

But impeachment is not the only way to hold a president to account, the other is the 25th amendment. What is the 25th amendment and what's it's relation to impeachment?

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.

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.

The 25th amendment was not invoked following the insurrection at the Capitol on 6 January, because Vice President Mike Pence was not in favour of the motion, and it would have been essential to have his vote of no-confidence in Trump to begin the process.

What is impeachment?

In the US Constitution, impeachment is appropriate when a President or other federal official has committed one of the violations described as “treason, bribery, or other high crimes and misdemeanors.” It allows a President to be removed from office; and after the trial the Senate could subsequently vote to disqualify Trump from ever holding federal office again.

The article of impeachment drawn up by Democrats the very night of 6 January, when an insurrection on the Capitol complex endangered hundreds and killed five is brief. It charges Trump with threateningthe integrity of the democratic system”, interfering “with the peaceful transition of power”, and imperilling “a coequal branch of Government.”

Trump's legal team's main defence of this second impeachment looks set to be the proposal that to impeach a private citizen, which Trump now is, is unconstitutional.

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.”