Dem Calls for 25th Amendment Against Trump Come Back To Haunt

In October 2020, before Joe Biden was elected president and three months before Trump supporters stormed the U.S. Capitol, then-House Speaker Nancy Pelosi held a press conference. She was touting a bill to create a bipartisan commission that could determine a sitting president’s ability to carry out the duties of the office.

The original bill’s author was Rep. Jamie Raskin, a Maryland Democrat and former constitutional lawyer who would go on to lead the second Senate impeachment trial of Donald Trump. In Pelosi’s eerily portentous remarks, she said the measure wasn’t explicitly aimed at Trump, but his mental health “reminded” Democrats of why such a commission was needed.

“This is not about President Trump. He will face the judgment of the voters, but he knows the need for us to create a process for future presidents,” she said. “This legislation applies to future presidents, but we are reminded of the necessity of action by the health of the current president.”

The measure would have augmented the 25^th Amendment, which provides procedures for transferring power to the vice president in case of the president’s death, incapacitation, removal, or resignation. It would set up a commission of 16 members chosen by Democrats and Republicans, who are medical experts or former high-ranking executive branch officials such as former members of a president’s Cabinet. The commission’s members would then select a 17^th member, who would serve as chairperson.

Pelosi and many Democrats regularly raised the issue of the 25^th Amendment during Trump’s tenure as president, more as a way to question his judgment and mental acuity amid the 45^th U.S. president’s furious Twitter rants and frequent acts of retribution and name-calling.

Many Democrats have long questioned whether Trump suffers from cognitive decline, and recently, the former president provided more fodder by confusing Nikki Haley with Pelosi herself in accusing the former ambassador to the United Nations of being responsible for security at the Capitol during the pro-Trump riots.

But the Democratic digs at Trump’s mental health were far trickier after the party’s leaders coalesced around Joe Biden as the Democratic 2020 presidential nominee and suddenly were forced to fend off far worse public perceptions of Biden. Once elected, his stairway falls, mangled words, and misidentified world leaders made the task all the more difficult.

Now the tables have decisively turned. Republicans are now beating the drum for invoking the 25^th Amendment after Special Counsel Robert Hur released a damning report. The findings accused Biden of “willfully” keeping classified documents in his Delaware home but declined to charge the president because his deteriorated mental state made him impossible to prosecute. Jurors would view him only as a “well-meaning, elderly man with a poor memory,” Hur asserted in his report.

Legal experts and hardline Republicans erupted with calls for Biden’s removal from office, citing Hur’s claims that Biden struggled to remember events such as when his term began and ended as vice president and when, within several years, his son Beau died.

“The Special Counsel’s report exposing that Joe Biden’s mental decline is so severe that he can not stand trial means he is unfit for office,” Rep. Marjorie Taylor Greene, a Georgia Republican, posted on X.com. “We must demand either the 25^th amendment be invoked or impeachment.”

Several other members of the House Freedom Caucus, a conservative group that helped remove House Speaker Kevin McCarthy in December, quickly amplified the calls. Rep. Mary Miller, an Indiana Republican, painted a dire situation, deeming Biden’s removal from office a matter of national security.

“For the safety of our nation, Joe Biden must resign,” Miller wrote. “He could not remember basic facts about his life. He is not competent to remain as Commander-in-Chief & every day that he remains, he puts America at risk.”

Speaker Mike Johnson and the entire House GOP leadership also waded in, issuing a joint statement that concluded: “A man too incapable of being held accountable for mishandling classified information is certainly unfit for the Oval Office.”

Johnson then doubled down after Biden decided to take the questions head-on at a hastily assembled press conference in which he angrily sparred with reporters questioning his mental abilities and mistakenly called Egyptian President Abdel Fattah el-Sisi the “president of Mexico.”

“The President’s press conference this evening further confirmed on live television what the Special Counsel outlined,” the Speaker said on X. “He is not fit to be President.” Two conservative GOP senators, Mike Lee of Utah and Rick Scott of Florida, joined the chorus. “It’s time for his cabinet to invoke the 25^th Amendment,” Scott tweeted.

Scott acknowledged just how unlikely such an outcome would be, considering the rules for removing a president outlined in the constitutional amendment and the politics of doing so in an election year. A president can only be removed if he agrees to resign or if the vice president and a majority of presidential Cabinet members agree that he must leave office. And that’s just the first step.

Under such a scenario, the president can still resist and insist he’s competent to lead the nation. If the vice president and a majority of the Cabinet still disagree, they must wait four days before the 25^th Amendment faces further nearly insurmountable hurdles. Successfully removing a president requires the support of two-thirds of the House and the Senate. 

Why does the process give the president so much control over his ability to remain in office? The 25^th Amendment’s authors crafted the process to maintain the power of the presidency and to prevent partisan political forces from manipulating it as an end-run around impeachment.

“It reflects a preference for giving the president the ability to be the main decision-maker here,” explained Brian Kalt, a professor of Michigan State University College of Law and the author of “Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment.”

“Not only do you need the president’s own party to vote in significant numbers against him in the House and Senate, you need his own team, basically to say, ‘Look, this is not okay,’” Kalt told RealClearPolitics. “It’s supposed to be hard. It’s supposed to be for extreme situations.”

The 25^th Amendment was ratified and approved after the assassination of President John F. Kennedy as a more explicit mechanism for transferring power from the president. It had previously been understood that the vice president could step in if the president was disabled, but until that time, the Constitution didn’t provide the requisite standards or procedures.

“So, we never used it, even when presidents were clearly incapacitated,” Kalt said.

Several times before Kennedy’s assassination, the country’s continuity of government was endangered when presidents became incapacitated. President Garfield was incoherent for two and a half months after he was shot in 1881 before he eventually died. Vice President Chester Arthur didn’t take over despite Garfield’s inability to perform his official duties.

In 1919, President Woodrow Wilson suffered a stroke that severely affected his physical and mental health for the remainder of his term. But he refused to resign, and Vice President Thomas Marshall declined to serve as acting president.

During President Dwight Eisenhower’s years in office, he suffered a heart attack and underwent surgery for Crohn’s disease. Eisenhower wrote a confidential letter to his vice president, Richard Nixon, naming him responsible for determining whether he could perform his presidential duties. The letter’s legal authority was never adjudicated, and in any event, Nixon took over the duties of president only for a few hours two times, in 1955 after Eisenhower’s heart attack and again during the president’s 1956 surgery.

“It’s not supposed to be another way for the president’s opponents to get rid of him,” Kalt said. “We really do stack the deck in favor of the president but in a way that allows power to transfer when it’s an undeniable case.”

After Hur released his devastating report Thursday, Biden’s personal and White House lawyers showed no willingness to concede that Biden’s mental capacity is in any way diminished. The vast majority of Americans do not seem to agree. Even before the special counsel’s conclusions, a January NBC News poll found that 76% of voters have major or moderate concerns about Biden’s cognitive and physical health.

In reacting to Hur’s report, Biden’s lawyers strongly objected to its characterizations and accused the special counsel of engaging in partisan politics. Bob Bauer, Biden’s personal attorney, who previously served as the general counsel to the Democratic National Committee and President Obama’s presidential campaign, accused Hur of “trashing” Biden.

“The special counsel could not refrain from investigative excess, perhaps unsurprisingly given the intense pressures of the current political environment,” he said in a statement. “Whatever the impact of those pressures on the final report, it flouts department regulations and norms.”

But other prominent legal analysts argued that Hur’s decision not to hold Biden responsible for years of violating the Presidential Records Act was far too lenient. Jonathan Turley, a constitutional law professor at George Washington University, said the depiction of Biden as too feeble to stand trial reminded him of the defense of mob leader Vincent Gigante, who often showed up in court in robes and pajamas. His lawyers successfully delayed his prosecution for years through arguments that he was mentally unfit to stand trial. Gigante was eventually convicted and sentenced to 12 years.

“Here the special counsel is saying, ‘You know what? It’s just going to break the jury’s heart to see an elderly man with such a faulty memory and diminished faculties being charged,’” Turley said on Fox News after the report’s release. “There’s going to be a lot of questions about that.”

When it comes to Trump, Turley argued, it seems prosecutors “hit him with any possible crimes stretching every possible definition.” But when they’re dealing with figures like President Biden, they are “far more cautious and resistant to charges,” he added.

Former Assistant U.S. Attorney Andy McCarthy, a conservative commentator and regular contributor to Fox News, said the report’s conclusions about Biden’s mental health are far more damning than the determination that Biden willfully stored classified documents in his Delaware home.

“Well, my first impression was that this is supposed to be about whether there’s enough evidence to indict, and as you read the report, I can’t help but say it sure looks like there’s enough here to invoke the 25^th Amendment,” McCarthy said on Fox News. “And I know that’s not what he’s looking at, what his purpose is, but [Biden’s] fitness for office is a major issue here.” 

The White House and Democrats on Thursday immediately pushed back at the report’s conclusions about the president’s mental fitness even as other Democratic members privately acknowledged the grim political reality – that the report confirmed what many Americans had suspected for months, making it far more difficult for Biden to remain the nominee in November.

Before the report was released, top White House aides were already struggling to defend Biden’s decision to skip the traditional pre-Superbowl presidential interview and explain away his gaffes from earlier this week. Biden, during a fundraiser, wrongly identified dead European leaders as having expressed concern to him about the events of the attack on the Capitol on Jan. 6, 2021.

The politics of the situation are daunting for both major political parties. It seems increasingly clear that the Republicans are stuck with Donald Trump as their nominee whether they like it or not – and most rank-and-file voters seem fine with it even though Trump doesn’t poll as well against Biden as challenger Nikki Haley. On the Democrats’ side, if Vice President Kamala Harris becomes the president under the 25^th Amendment, she would choose her own running mate. Under such a scenario, it would be far more difficult for the party to dump Harris, who is even less popular than the president, as the presumptive nominee during the remaining primaries or at the convention. There has been talk of Biden trying to replace Harris as his No. 2 since early last year. Massachusetts Sen. Elizabeth Warren endorsed Biden in February, but equivocated when it came to whether or not he should boot Harris from the ticket. 

“I really want to defer to what makes Biden comfortable on his team,” said Warren, who shortly afterward tried to undo the damage by issuing a statement “fully” supporting the reelection of Biden and Harris “together.” 

That hasn’t stopped the speculation about other would-be presidential contenders. There are plenty of Biden alternatives already waiting in the wings, including such possibilities as former first lady Michelle Obama, California Gov. Gavin Newsom, Colorado Gov. Jared Polis, and Michigan Gov. Gretchen Whitmer.

“Republicans should be careful what they wish for when talking about the 25^th Amendment,” Kalt warned. “It could mean they won’t have Biden to run against in November.”