The hearings of the House select committee investigating the Jan. 6 insurrection have prompted a great deal of discussion about whether Donald Trump should be criminally charged for his attempted self-coup. You can count me as being on Team Prosecution, but there’s another important issue raised by the hearings: the effective operation of Section 4 of the 25th Amendment to future presidencies.
Fortunately, the committee has been focused on that critical point from the outset of its work. Its earliest requests for materials asked for “all documents and communications related to the mental stability of Donald Trump or his fitness for office” and those related “to the Twenty-Fifth Amendment to the U.S. Constitution.”
The 25th Amendment, in particular Section 4, is the constitutional provision that details what happens when a president is “unable to discharge the powers and duties of his office.” It could and should have been invoked to bring Trump’s calamitous presidency to an early and safe end.
Think of it: Our president — the person in charge of the world’s second-largest arsenal of thermonuclear weaponry — was so apparently unstable that, as Bob Woodward and Robert Costa reported in their book, “Peril,” and Carol Leonnig and Philip Rucker recounted in their book, “I Alone Can Fix It,” the speaker of the House was compelled to call the chairman of the Joint Chiefs of Staff on Jan. 8, 2021, to say about Trump, “He’s crazy. You know he’s crazy. He’s been crazy for a long time.” She expressed concern that the crazyman-in-chief could unilaterally launch a doomsday strike.
The chairman’s not-all-that-comforting response: “I agree with you on everything.”
No doubt the committee’s hearings will reveal a lot about Trump appointees’ understanding of the president’s mental state and discussions of whether the 25th Amendment should be invoked. Section 4 provides that “whenever the Vice President and a majority of … the principal officers of the executive departments” declare that the president is unable to discharge the duties of his office, “the Vice President shall immediately assume the powers and duties of the office as Acting President.”
We already know from published reports that Trump’s Cabinet considered invoking this provision in the aftermath of the Jan. 6 attack. Treasury Secretary Steven Mnuchin and Secretary of State Mike Pompeo discussed it. Labor Secretary Eugene Scalia called an aide to Pence to say that the Cabinet had to do something to keep the president in check. Just last week, Trump’s education secretary, Betsy DeVos, said she raised with Pence the possibility of triggering the 25th Amendment — but Pence said he’d have nothing of it. She then resigned.
So it’s not surprising that Rep. Liz Cheney (R-Wyo.), vice chair of the Jan. 6 committee, promised in her opening statement last Thursday that the public “will hear about members of the Trump Cabinet discussing the possibility of invoking the 25th Amendment and replacing the president of the United States.” As well we should: In January 2021, the 25th Amendment, not impeachment, was the most effective way to deal with Trump and the danger he embodied.
That’s because Section 4 provides for the immediate disempowerment of the president once the vice president and a majority of principal executive officers declare the president unable to serve. Even if the president objects, he doesn’t get his job back right away. The matter goes to Congress. And while Congress must assemble within 48 hours to consider the issue, Section 4 gives it three weeks to debate who’s right. On Jan. 7, 2021, Trump had less than two weeks left in his term. Congress could have run out the clock. With a single sheet of paper, the vice president and Cabinet could have sidelined Trump for good.
For all the credit he deserves for obeying the Constitution on Jan. 6, Pence deserves criticism for not taking this necessary step. But passing judgment on him really isn’t the principal point of the committee’s evidence. There’s an important legislative purpose at stake: Section 4 provides that Congress can substitute for the Cabinet “such other body as Congress may by law provide” — like, say, an independent group of experts who don’t owe their jobs to the president of the United States.
That should be an important focus of the committee’s continued work. Still, the evidence will help add to history’s verdict on Pence and the rest of the GOP. Trump’s disordered personality and his inability to carry out his duties didn’t suddenly manifest themselves in the days after the 2020 vote; as I’ve written at length, all that was out there for years, for everyone to see. Discussions within the Trump administration about sidelining the madman began as early as 2017.
They all knew. Yet they stood by and said and did nothing. Even at the very end, when the country was most in peril. Indeed, to my mind, the biggest falsehood of the Trump era wasn’t any of the 30,000-plus lies he told in office; it was the pretense maintained by GOP executive officials and lawmakers for four long years that he was in any way fit for the job.
As Cheney said last week, long after Trump is gone, Republicans’ “dishonor will remain.” We should add the refusal to invoke the 25th Amendment to the list of reasons why.
