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What is the 25th Amendment - and will Mike Pence invoke it?

Anastasia Santoreneos
·5-min read
WASHINGTON, DC - JANUARY 06: U.S. Vice President Mike Pence presides over a joint session of Congress to certify the 2020 Electoral College results on January 6, 2021 in Washington, DC. Congress held a joint session today to ratify President-elect Joe Biden's 306-232 Electoral College win over President Donald Trump. A group of Republican senators said they would reject the Electoral College votes of several states unless Congress appointed a commission to audit the election results. (Photo by Erin Schaff-Pool/Getty Images)
What is the 25th Amendment - and will Mike Pence invoke it? Source: Getty

As chaotic scenes unfold at the US Capitol, Democratic lawmakers and senators are calling on Vice President Mike Pence to invoke the 25th Amendment and remove President Trump from office.

It comes as angry protestors have stormed the building, cheering Trump’s baseless claims of a fraudulent election. Trump has yet to condemn the protestors, but has told them to “remain peaceful”.

But invoking the 25th Amendment could see Pence takeover as President until President-elect Joe Biden is sworn in on 20 January.

Here’s how it works.

What is the 25th Amendment?

The 25th Amendment to the US Constitution states that if the President becomes unable to discharge his powers or perform his duties, the Vice President becomes the President.

Essentially, the Vice President will then do the President’s job until the President can resume his duties, or until the next Presidential election. In this case, it would be until President-elect Joe Biden begins his term in office.

When was the 25th Amendment used before?

President John F. Kennedy’s 1963 assassination led to the enactment of the amendment, but has only been used three times, and in all cases, power was only given to Vice Presidents for a short time for medical reasons.

In 1985, then-President Ronald Reagan unofficially invoked the amendment when he found out he needed surgery for colon cancer. Power was given to George H.W. Bush, who was Vice President at the time.

In 2002, George W. Bush became the first President to officially invoke the amendment for a colonoscopy where he would be getting anaesthesia. He officially gave power to his Vice President Dick Cheney for around two hours. He did this again for another colonoscopy in 2007.

How can Mike Pence invoke the 25th Amendment?

Pence said that he did not have the power to discard electoral votes that would make Biden the president on January 20. That then sparked a tweet from Trump, saying that Vice President Pence “didn’t have the courage to do what should have been done to protect our Country”.

In response, Democratic candidates, lawmakers and experts called on Pence to invoke the 25th Amendment and remove Trump from office.

In order for Pence to invoke the amendment, he would need to produce a letter co-signed by a majority of Trump’s cabinet secretaries stating that Trump was unable to perform the duties of his office, and deliver it to the speaker of the House and the Senate majority leader.

Then, Pence could immediately take over as president until Trump delivered a counter letter.

Congress would then be required to assemble within 48 hours, and to vote on the matter within 21 days. If two-thirds of the majority in both chambers agree Trump is unfit to perform his duties, Pence would continue as President.

But given Trump has just 14 days left in his term, the vote would likely be moot.

Will Mike Pence invoke the 25th Amendment?

Pence has long been one of Trump’s biggest supporters, so it seems unlikely that he would consider invoking the amendment.

Pence has called on protestors to “leave the building” or risk prosecution, but has not yet given any indication as to whether he would consider invoking the amendment.

However, around 1,100 members of the District of Columbia National Guard and 650 Virginia National Guard troops have since been deployed to the US Capitol amid the chaos, and it wasn’t Trump who sent them.

According to the New York Times, defence and administration officials said it was Pence who approved the order to deploy the Washington D.C National Guard.

What else can Congress do to stop Trump?

If Pence does not invoke the amendment, Congress can move to impeach President Trump.

The Constitution states Congress can remove presidents before their term is up if enough lawmakers vote to say that the president committed “treason, bribery, or other high crimes and misdemeanours”.

First, the House Judiciary Committee would need to hold an investigation and recommend articles of impeachment to the full House. However, the House of Representatives could also just set up a panel to handle the proceedings, or hold a floor vote.

When the House votes on the articles of impeachment, if at least one gets a majority vote, the president will be impeached. This is essentially the equivalent of a criminal indictment.

It then moves to the Senate.

The Senate will hold a trial overseen by the chief justice of the United States, and a team of lawmakers will play the role of prosecutors. The President will also have defence lawyers, while the Senate serves as a jury.

If two-thirds of the ‘jury’ find the president guilty, he is removed and the Vice President takes over.

In 2019, the House voted on two articles of impeachment against Trump years after the first article was filed in July 2017. However, the President was later acquitted by the Senate.

President-elect Joe Biden is set to be sworn in on 20 January.

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