MADISON, Wis. — Several of Wisconsin’s Democrat lawmakers, including Reps. Gwen Moore and Mark Pocan as well as Sen. Tammy Baldwin, have joined a growing number of voices including Democrat party leadership in calling on Vice President Mike Pence and a majority of Cabinet members to invoke the 25th Amendment, declaring President Trump unfit for office.
The national conversation started late Wednesday afternoon and picked up steam Thursday with House Speaker Nancy Pelosi and Senate minority leader Chuck Schumer calling for the amendment to be invoked. Pelosi announced that impeachment proceedings could begin if it were not.
The 25th Amendment was put in place to allow for presidential succession in the event of death, removal, resignation or incapacitation. It has been used a handful of times in history in the event of illness, medical procedures, or a vacancy in the vice presidency. Never, however, has it been used to declare a President unfit for office without his consent. The legal terminology itself is unclear, political experts say, and has little historical context to draw on.
“What exactly that means is unclear,” Professor Howard Schweber from UW-Madison’s political science department explained. “There are no legal cases on this question. There are no precedents to draw on. There’s no extensive sort of founding father’s style debate about the meaning of these terms.”
The mechanics of invoking the 25th without Presidential consent
Vice President Mike Pence and a majority of Cabinet members would have to send a letter to Congress declaring President Trump unfit for office.
President Trump could issue his own written statement at that point declaring his competency, which would instantly restore his powers.
Congress would become the arbitrator of the issue at that point, with a two-thirds majority in both houses needed to remove him from office. If the vote fails, the president would remain in office
A complicated timeline
In the current scenario, it’s unlikely Congress could martial the required two-thirds majorities to oust the president; however, the precise timing of his time left in office could be all that’s needed, experts say. Congress has two days to debate the issue once it’s presented to them, and then 21 days to vote on it.
During that time, Mr. Pence would act as president.
“Pelosi and McConnell together, if they wanted to, could simply run out the clock,” Schweber said. “It simply extends the process until after the inauguration of Joe Biden.”
Likelihood of proceedings
Taken together, the number of Republicans needed to get on board with either another impeachment or the invoking of the 25th amendment makes the success of either scenario unlikely–but, not necessarily improbable after this week’s events.
“All of this seems so unlikely 24 hours ago,” UW-Madison political science professor Barry Burden said. “But so did a group of rioters storming the CapitolI would not have expected anyone in the leadership of the [Democrat] party to be saying those things today, but there appears to be sort of a consensus building.”
“Personally, I find it very hard to imagine Pence agreeing to carry out that operation,” Schweber said of the 25th Amendment. “The impeachment approach seems more likely.”
A second impeachment proceeding would be a lengthy process, made even longer if it went to Senate trial–unlike Trump’s first impeachment. In the scenario of a second trial, it would take a significant number of senators to reverse course.
“There would have to be some substantial defections in the Senate for the trial to be successful in removing the President,” Burden said. “Sen. Ron Johnson is unlikely to be one of those defectors.”