In the wake of the violent raid on Congress by pro-Trump rioters on Wednesday, there's speculation that Vice President Pence, along with heads of executive departments, will invoke Section 4 of the 25th Amendment to temporarily remove the president from power. Harold Hongju Koh, professor of international law at Yale Law School and author of a reader's guide to the 25th Amendment, explains how this unprecedented action might play out.
HAROLD HONGJU KOH: So this is one of those rare Amendments that was done in the last 50 years in the wake of LBJ becoming president after Kennedy was assassinated. The 25th Amendment addressed the lingering question, which is what to do if the president is disabled.
GAYLE KING: We turn to our political leaders for guidance in times of crisis like the scenes the world witnessed at the Capitol. But yesterday, President Trump did not condemn the violence.
JIM KENNEY: I do believe he's mentally deranged, and I think the 25th Amendment is certainly something we should at least be considering.
KARL RACINE: Invoke the 25th Amendment.
CHRIS COONS: If we're not going to use the 25th Amendment in this moment, then I'm not clear what it's really for.
HAROLD HONGJU KOH: So the two key provisions of the Amendment are Section 3, which is if the president knows that he's going to be unable to discharge the duties, can he surrender power temporarily by writing a letter? This is primarily because if someone is undergoing surgery, they obviously are not able to function during that period. Reagan did it. Bush did it a couple of times.
But nobody has ever triggered Section 4, which is what if the president is unable to discharge the duties of the office and the vice president and a majority of the Cabinet see that this is the case. Can they involuntarily separate him from his duties? The vice president plus eight heads of executive departments can send a letter in which they say the president is unable to discharge the powers and duties of the office. That letter instantly removes the president from his powers. It could happen in the next hour.
The president, then, has an opportunity to respond. If the president says no, I am able to discharge my powers and duties, the vice president and the eight members have four days in which to decide whether to send a letter to the Speaker of the House and the president pro tem of the Senate who, in this case, would be Chuck Grassley. Presumably, that's a period where they could negotiate with the president and say, look, we don't think you're up to it. We think you should resign. Or alternatively, they could say, if you're going to stay in office, control yourself.
What is a quite interesting situation then is that it then goes over to both houses of Congress, and they have 21 days to debate and vote. Normally for the whole process to play out takes at least 28 days. Here, we're at the very end of Trump's presidency. The president could be separated from his powers, and then Congress never vote and he would remain separated. This gives Pence a lot of political leverage in a conversation with Trump. He could say to him, if you don't get in line, we can trigger this in an hour. And if we understand that you're calling for violence or doing something, we won't hesitate to do it.