As election day approaches, the polls have started to narrow, bringing the odds of a Donald Trump presidency into frighteningly close territory. As of this writing, polling guru Nate Silver’s FiveThirtyEight election forecast gives Trump a greater than one-in-three chance of taking the White House, up from just one-in-ten a few weeks ago. That means that, even though Hillary Clinton is still the odds-on favorite to win the election, the nation should start mentally preparing for what the world would look like under President Trump.
Or you can think about plan B. If you’re one of the many Americans who thinks Trump represents a sui generis threat to the nation the likes of which we’ve never seen before, and are so averse to the prospect that you would even rather have Mike Pence—with his anti-LGBTQ and anti-choice politics—in charge of the nation’s nuclear codes, then I have good news. The constitution has an escape hatch—a way to remove a president that doesn’t involve any violence or “Second Amendment people.” Using Section IV of the 25th Amendment, Congress could remove a potential President Trump. Here’s how it works.
What is the 25th Amendment anyway?
In 1967, lawmakers in Washington, still reeling from the JFK assassination four years earlier, became fixated on the rules of succession and what to do if a president died or was unable to fulfill his or her duties as president. The Constitution had some procedures in place already, but they weren’t totally clear and didn’t prepare for a full range of possible scenarios. So Congress ratified the 25th Amendment to make sure the rules were clear no matter what happened.
Ok, so what is Section IV?
Congress wasn’t just content to prepare for what happened if the president or vice president died. They also wanted to be sure they had a plan in the event the president became cognitively unfit for office and was unable or unwilling to step down of their own volition. Section IV lays out the rules for how Congress or the president’s own cabinet could remove the president and install the vice president as acting leader of the free world.
OK, so how do they do it? As previously alluded to, there are two ways that a president can be removed under Section IV. First, a majority of the president’s cabinet—the Secretaries of State, Treasury, Defense, etc., could get together with the vice president and declare the president unfit to serve. Given that Donald Trump will probably only appoint people to his cabinet that are loyal to him, this is the least likely method for success. Attorney General Rudy Giuliani and Interior Secretary Gary Busey aren’t going to try to oust their boss.
The second way for removing the president is also a long shot, but one that the peculiar circumstances of a Trump presidency could make possible. Instead of the president’s cabinet, the vice president can join with a majority of House members and a majority of Senators to declare the president unfit to serve. If Trump wins, his running mate Mike Pence will be the vice president. You might think there is no way that Mike Pence is going to cross Donald Trump after he chose him to be is vice presidential nominee, but rumors—albeit ones he has denied—have been floating around for a while that Pence is uncomfortable with Trump and considered asking to be removed from the ticket.
Similarly, it might seem unrealistic to expect a majority of House and Senate members will go against Trump, especially if Republicans manage to keep the majority in both houses of Congress, which they likely would if Trump wins. But, here again, the specific circumstances of a Trump presidency make it more possible than ever. Large numbers of Republicans in both chambers have either never supported Trump or dropped their support for Trump after he was caught on tape bragging about sexual assault. Even though a number of those senators and representatives recently went back to supporting Trump, many did not. And, what’s more, many of the members of Congress who went back to supporting Trump have stated on the record that they would rather see Mike Pence as president. If just a few GOP members joined with Democrats in the House and Senate, they could have the majorities they need.
Alright, let’s say you’ve got Mike Pence and a majority of members of Congress from both chambers on board. What’s next? According to Section IV, Congress and the vice president must “transmit to the president pro tempore of the Senate and the speaker of the House their written declaration that the president is unable to discharge the powers and duties of his office.” In this case, let’s say that Republicans keep their majorities in both the House and the Senate. That means the anti-Trump coalitions would submit their written declarations to House Speaker Paul Ryan and Senate President Pro Tempore Orrin Hatch, both of whom, despite endorsing Trump, are outspoken Trump critics within the GOP. After they accept the letters, “the Vice President shall immediately assume the powers and duties of the office as Acting President.”
Lather, rinse, repeat
Once that letter is accepted, the now-removed president, in this case Trump, can submit his own letter to the speaker and the president pro tempore declaring that he is fit for office. After that, the vice president, along with the House and Senate majorities, has four days to submit another letter declaring the president unfit. Once that second letter is submitted, Congress has two days to call a special session to vote on whether or not the president is fit for office. Once that session is called, they will have 21 days to get a two-thirds majority in both the House and Senate, in order to keep the president from taking the office back. Two-thirds of both the House and Senate is a much higher bar than the simple majority needed to remove the president in the first place. But if congressional leaders used all the time they had to make it happen, that means that the acting president, in this case Pence, will have been running the country for almost a month—enough time to try to make whatever promises are necessary in order to sway another 72 House members and 16 Senators, if need be. If they succeed, Pence would continue to assume the powers of president for the rest of the term.
These high-stakes machinations are far more likely to happen in an upcoming season of House of Cards than in real life. But if there were ever a person whose potential presidency could make it all come together, Trump is that person.