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Pelosi’s Desire to Invoke the 25th Amendment Is Like the Conspiracies She Demonizes, Says Constitutional Expert

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AP Photo/Jacquelyn Martin

House Speaker Nancy Pelosi sent a letter of demand – officially a "resolution" – to Vice President Mike Pence. She is calling for him to invoke the 25th Amendment, declaring President Trump as unfit for office and the course to be made for the Vice President to take command of the nation. The Speaker has said then that if the Vice President declines to act in this fashion, she will begin the process of drawing up articles of impeachment before the week concludes.


This is of course in response to the unacceptable acts we saw on Wednesday, January 6, when a faction of those protesting at the Capitol rushed the building, clashed with police, and overtook offices and chambers for a time. These actions have been declared as a coup attempt in the press, with accusations of sedition being leveled and then, by extension, the charge that President Trump fostered treasonous actions, leading to him being charged accordingly.

What is remarkable in the days after the attack on the Capitol is that many in the press and from the Democratic Party have been deriding the nefarious nature of conspiracy theories inspiring these attackers. Then, in the course of the same discussion, they resort to conspiracy theories of their own. The press has put out claims that the Capitol Police colluded with the rioters, that President Trump will impose Martial Law, that Trump will attack foreign nations in the coming week, and other odd claims rooted in nothing approaching evidence.

Chalk up Pelosi’s dream of an invocation of the 25th to this imbalanced list. In an effort to clarify if there is anything valid to this call to action I spoke with Rick Green, constitutional expert and founder of The Patriot Academy, a teaching and speaking enterprise designed to educate on the founding documents. I asked Mr. Green, for the sake of consummate accuracy, is Pelosi’s desire to have the 25th used as a tool to remove President Trump anything approaching reality. Does it have any validity?


“Zero,” was Green’s flat and rapid answer. “This is a crazy idea, and its premise is one of either desperation, or to simply showboat, politically. The 25th was never intended to be used for political or policy differences, only cases where the President has become physically or mentally incapacitated.” He went on to explain that Pelosi’s intended implementation here is one to establish Trump as imbalanced in thinking in some fashion and no longer mentally competent based on her own policy disagreement.

As it is written, this amendment deals with such a time when the president is, “unable to discharge the powers and duties of his office.” This does not mean unwilling to perform the duties the opposing party prefers he undertake. There have only been select times this amendment has been close to being used since it was ratified in 1967. Article 3 of the amendment has been employed in those times when the standing president went into surgery, and only from the president himself in each instance, as a precaution against an unforeseen complication.

Before last night both Pelosi and Sen. Chuck Schumer had voiced their desire to see President Trump stripped of his duties via the 25th. I asked, did they have any direct influence on this process? What little they have is now being undertaken by the Speaker; they request the Vice President to take action. This is looking to be something beyond a reality. For starters, Pence has just shown a strict adherence to the language of the Constitution – through his refusal to follow through with Trump’s hail mary attempt to question the Electoral College process last week.


The vice president is highly unlikely to read anything in this amendment designed for an infirm claim that would compel him to act. Another hurdle is that the next phase involves at the least 50 percent of the presidential cabinet to agree to invoking the 25th. And, as Green noted, “Not only is this a highly unlikely number to be reached, but those members of his cabinet who might have signed on have just resigned in the past week.” But just to play along – what if...?

Well, if the miraculous occurs, and we get Pence and more than half of the cabinet to push for this resolution, the next step is also a steep one. Should Trump choose to fight this – a rather assured likelihood – he submits his letter to Congress that no inability exists. It then requires Pence and the cabinet to send their letter of resolution to Congress, which then requires a two-thirds majority vote from both the House and the Senate.

The reality is the call to use the 25th for the president’s removal is a much higher bar to clear than an impeachment,” noted Green. So with all of this looking about as likely as Trump becoming the next commercial spokesman for Twitter, I decided to float another one of the conspiracy theories regarding this Constitution plot I had come across: Could Mike Pence dangle this 25th Amendment option to the president, with the promise that he would subsequently pardon him?


Green shot this one down as well. “There is no real language as this is written to support such a plan. If they really intended to go this route it would be far easier for the president to simply resign.” So there it is, this entire premise appears to be dead on arrival. Rick Green brought up another facet of this plan to lend a bit of clarity to the thinking.

There is actually a place where this has been explored – it appeared as a plot point in the television series “24” during its second season.’’ He gave a slight chuckle. “This might give you an idea about how unrealistic this all becomes.” It explains plenty. It led me to mention; this makes it appear that Nancy Pelosi might be less dedicated to reading the Constitution than she is reading Hollywood screenplays.

Green laughed. “Probably – because that is about the only place where you would see this plan actually work.” This is all starting to sound like any hopes of the new year becoming any less crazy than 2020 is also becoming just as remote of a possibility.

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