Weekend Long Reads: The 25th Amendment

by Kevin Schofield

This weekend's reads reflect this past Wednesday's events, in particular President Trump's inciting of an insurrectionist mob to storm the U.S. Capitol. We look at the role of the 25^th Amendment in removing a President who is unfit to serve. We also reflect on a dark moment in German history with an eerie similarity to what we just saw play out in our nation's capital.

The 25^th Amendment

There are three legal paths for the President of the United States to be unseated before the end of his or her term:

1. The President can resign.
2. The President can be impeached by Congress, in the process we saw play out a year ago: the House of Representatives draws up and approves articles of impeachment, and the Senate holds a trial and votes on whether to remove the President from office.
3. The President can be declared temporarily unable to fulfill the duties of the office, under the terms laid out in the 25^th Amendment to the U.S. Constitution.

The 25^th Amendment was officially enacted in 1967, and it attempts to clarify both the line of succession to the Presidency as well as the conditions under which a President could be temporarily removed from office (as well as the procedures for the President resuming their duties). It came after decades of confusion, as well as several iterations of attempts to clarify the rules that were passed into law by Congress.

This week, of course, there has been much discussion of Section 4 of the 25^th Amendment, the part that specifically lays out the procedures for removing the President. And it's complicated.

It begins with the Vice President and a majority of the "principal officers of the executive departments" (or another body that Congress defines by law — though it has never done so) signing a written declaration "that the President is unable to discharge the powers and duties of his office." Upon doing so, the Vice President immediately becomes acting President and assumes the powers and duties of the office.

But here's the catch: the President simply must send their own written declaration to Congress that no inability exists in order to end their removal and re-assume the Presidency. Presumably that would happen after recovery from whatever debilitated the President, but there is nothing stopping the President from issuing such a declaration immediately after being declared unable to serve by the Vice President and cabinet. One can certainly imagine that is the tactic that President Trump would take.

In that case, the Vice President and a majority of cabinet members can provide a written reconfirmation of their earlier declaration within four days, and then it is up to Congress to decide who should be President. If not in session, Congress would be required to assemble for that purpose. If two-thirds of the members of both the House of Representatives and the Senate agree, then the Vice President would remain Acting President; if the vote fails, or Congress fails to vote within 21 days, then the President resumes office.

In the present case, assuming Vice President Pence and a majority of the cabinet were to declare Trump unfit, Trump subsequently declared his own fitness, and the VP and cabinet re-affirmed its declaration, Congress would be forced to re-assemble but not to vote — and since Trump has less than two weeks left in his term, it could simply let the clock run out with Pence as Acting President.

The 25^th Amendment to the U.S. Constitution

The Reichstag Fire

On February 27, 1933, the German Parliament building, known as the Reichstag, burned. Adolph Hitler, who only three months earlier had become Chancellor of Germany — the second-most powerful position in Germany after the President — but whose Nazi Party held only a minority of seats in the Parliament, seized upon the fire as an opportunity to increase his power. He blamed the Communists for the blaze, convinced President Hindenburg to invoke his emergency powers, and then drew up a "Decree for the Protection of the People and the State" that suspended the right of assembly, the freedom of the press, freedom of speech, and other protections, while removing restraints on the police that allowed them to arrest and jail anyone who opposed them. One month later, the Reichstag voted to transfer all of its legislative powers to Hitler's cabinet, firmly establishing his dictatorship.

It is widely believed that the Nazi party, under the direction of Hitler's propaganda minister, Joseph Goebbels, was at the very least involved in the arson that burned the Reichstag, and was possibly the instigator. Either way, it's clear that the fire was a critical event that led to the final ascension of Hitler in Germany.

It's unclear whether Donald Trump was aware of the role of the Reichstag Fire in the history of Hitler and the Nazi Party, but his own words on Wednesday make it clear that he had a similar intent in inciting a crowd of his followers to march on the U.S. Capitol: intimidate Congress into overturning a fair and legal election that would remove him from office and instead returning him for another four-year term — and in the process move one step closer toward consolidating his power base.

The populist/fascist playbook has never gone out of style. Lean in on propaganda while declaring the free press to be "the enemy of the people." Project power while making your political enemies look weak. Promise to address your base's angry grievances, while demonizing and blaming societal problems on minority groups that lack political power. Create hazards so that citizens will give up their freedoms to feel safer.

As the saying goes, the price of freedom is eternal vigilance. Populism and fascism never go away because they are easy, reliable paths to power for the people who crave it. This week we re-learned the lesson of the Reichstag Fire: a constitution is only as good as the people you entrust with governing under it.

The Reichstag Fire — The History Channel

The Reichstag Fire — The United States Holocaust Memorial Museum

Kevin Schofield is a freelance writer and the founder of Seattle City Council Insight, a website providing independent news and analysis of the Seattle City Council and City Hall. He also co-hosts the "Seattle News, Views and Brews" podcast with Brian Callanan, and appears from time to time on Converge Media and KUOW's Week in Review.

Before getting into journalism, Kevin worked at Microsoft for 26 years, including 17 in the company's research division. He has twin daughters, loves to cook, and is trying hard to learn Spanish and the guitar.