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How impeachment and the 25th Amendment work

Here are the rules...
Donald Trump
Posted at 4:51 PM, Jan 08, 2021
and last updated 2021-01-08 20:01:00-05

SAN DIEGO (KGTV) — The chaos at the Capitol has sparked a new round of discussions about removing the president from office.

Outside experts agree: removing President Trump from office before his term expires Jan. 20 is very unlikely.

However, House Speaker Nancy Pelosi said Friday that Democrats are prepared to begin impeachment proceedings next week if the president doesn’t resign.

And the idea of invoking the 25th Amendment has been discussed in some of the highest reaches of the Trump Administration.

Treasury Secretary Steven Mnuchin, one of the president’s closest allies, has been involved in discussions about invoking the 25th Amendment, although he is “highly unlikely” to pursue that action, the Washington Post reported Friday, citing three unnamed sources.

The 25th Amendment to the Constitution was ratified in 1967 after the assassination of John F. Kennedy. Before the attack, the Constitution didn’t spell out how the vice president would become the president in the event of the president’s death, resignation or incapacitation.

“While it has never been used to formally kick a president out of office, president’s have used it from time to time to go under the knife for surgery or for other reasons,” said Scripps political reporter Joe St. George.

If Vice President Mike Pence and a majority of Trump’s cabinet agreed that President Trump was “unable to discharge the powers and duties of his office,” Pence could immediately take over at the stroke of a pen.

Trump could contest that, setting up a vote in Congress to settle things. A two-thirds majority of Congress would have to vote in favor of Pence to keep authority from returning to President Trump.

That’s a very high bar. But the Constitution allows up to 21 days for this Congressional vote to take place. Some experts have suggested that with less than two weeks until the end of the term, the Democratic-controlled House could simply run out the clock and delay such a vote until Joe Biden is sworn in.

Legal analyst Dan Eaton says it’s an interesting academic exercise, but “it’s unlikely because the vice president has to initiate this process.”

The other removal option is through impeachment, a process we witnessed last year. No president has been impeached on two occasions.

Some Democrats have already started circulating another round of Articles of Impeachment. The House could pass them with a simple majority, then it would go to the Senate for a trial.

It would take a two-thirds majority in the Republican-controlled Senate to remove Trump.

But even if the political will existed to begin such a proceeding, experts say it’s unlikely there would be enough time to conduct the trial.

One possibility, albeit a remote one, is that the Senate could conduct the trial after the president leaves office, said UC San Diego political science professor Thad Kousser.

Whether a former president can be impeached and tried is an unsettled area of law that would need to be litigated, Kousser said.

But once Democrats take control of both chambers later this month, he said they might have incentive to wade into the legally uncharted waters: if an official is impeached and convicted, they can never run for federal office again.