In the midst of a presidential campaign season, we find one party considering replacing a presidential candidate less than four months before an election. Replacing a candidate is one thing. Removing a president is another. What happens if a president who is serving needs to be removed?
Removing a President: Impeachment Process
The Founders anticipated that removing a president may be necessary. The process for removing a president from office for bad behavior was included in the Constitution in the beginning. Let us look at what the Constitution says, then dive a bit deeper into some of the context.
Constitutional Language
The House of Representatives shall [choose] their Speaker and other Officers; and shall have the sole Power of Impeachment.
U. S. Constitution, Article I, Section 2
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
U. S. Constitution, Article I, Section 3
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
U. S. Constitution, Article II, Section 4
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
U. S. Constitution, Article III, Section 3
Impeachment
In many criminal cases in the United States, charges are brought through a grand jury process. In this process, a prosecutor (and only the prosecutor) presents evidence to a grand jury. The grand jury then considers the evidence and determines what charges, if any, should be brought against the defendant. If the grand jury thinks there is enough evidence to proceed, they will return an indictment indicating what a person has done and the criminal law the action violates.
Removing a president or other civil officer of the United States is similar to this criminal process. The impeachment itself is akin to grand jury process. When a member of the House of Representatives believes the President or any other officer of the United States has engaged in conduct that warrants impeachment, he or she can file Articles of Impeachment against the person. Sometimes such filings are largely symbolic and die at this stage for lack of support within the House.
If there is sufficient support in the House of Representatives, a full impeachment inquiry is opened. The House Judiciary Committee, and perhaps other committees, will hold hearings, gather evidence, and conduct an investigation. The committee’s work may be the end of it, if they don’t find enough evidence to proceed. If they do, the Articles of Impeachment must be voted on by the entire House of Representatives. Assuming the House agrees to the Articles of Impeachment, the person has been impeached (akin to someone being indicted in criminal proceedings), and the process continues. If the House does not agree, the process ends.
Trial
At this point, the House has approved Articles of Impeachment. This will require a trial to be held in the United States Senate. The House will appoint “managers” to present the case in the Senate. The role of these managers is akin to the role of the prosecutor in a criminal trial.
The Senate can make its own rules for how trials will take place, including how to dismiss the Articles. The Senate as a whole acts essentially as a jury. When acting in this role, Senators must be sworn in for this special role. Usually, the Vice President, in his or her role as President of the Senate, would preside over an impeachment trial of most civil officers. The Chief Justice of the Supreme Court presides at trials of the President, though the trial is conducted according to rules established by the Senate.
After presentation of the case by the House managers and presentation of any defense by the President, the Senate will vote on each of the Articles of Impeachment. If two-thirds (sixty-seven) of the senators vote to convict on an Article of Impeachment, the President (or other officer of the United States) is convicted.
Conviction
If someone is convicted at the impeachment, the person is immediately removed from office. The person may also be immediately disqualified from holding any other office of trust under the United States. It is a matter of interpretation whether this disqualification is automatic or a separate action by the Senate.
The impeachment process may not impose any penalty other than removal from office and disqualification from holding other office. The person removed, however, may be charged in criminal court for the misconduct that led to removal from office.
Grounds for Impeachment
Impeachment is not intended to be used to resolve normal political disputes between Congress and the President. Instead, it is intended to remove someone for misconduct. The Constitution provides these grounds for impeachment
- Treason
- Bribery
- Other High Crimes and Misdemeanors
To avoid using “treason” as a catch all charge, the Constitution narrowly defines what treason is. Treason is only “levying War” against the United States or giving “Aid and Comfort” to the enemies of the United States. Bribery is a generally well-understood crime.
The High Crimes and Misdemeanors category is much less clear. The term “high crimes and misdemeanors” goes back at least to the 14th century in English law and was apparently well understood at the time the Constitution was written.
In English law, a “high” crime is one involving abuse of power. It is unique in that only people specially sworn to uphold certain duties and can commit a “high crime” because they must have power to abuse. High Crimes and Misdemeanors, then, involve some sort of corruption of the office.
The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
Alexander Hamilton, Federalist No. 65
Hamilton perhaps sees high crimes and misdemeanors a bit more broadly. Indeed, early in American history, that seems to have been the case. Judge John Pickering was impeached on March 2, 1803 and convicted on March 12, 1804. He was the first person convicted and removed by the Senate. In part, he was impeached for public intoxication.
In practice, “high crimes and misdemeanors” largely means whatever the House of Representatives deems to be injurious to society. Usually, the House has followed an unwritten rule that
History of Impeachment
In total, 21 people have been impeached. This includes one Senator, one Supreme Court justice, fourteen lower court judges, two cabinet secretaries, and three presidents (Andrew Johnson, Bill Clinton, and Donald Trump). Eight judges were convicted and removed. All other people impeached were acquitted or the Senate dropped charges, often because the person left office before a trial was complete.
Removing a President: The 25th Amendment
The impeachment process handles removing a president for misconduct. What happens, though, if the president simply can’t do his job? Removing a president for incapacity might be just as important. As with impeachment, we start with the language in the Constitution.
Constitutional Language
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
U. S. Constitution, Article II, Section 1 (original language)
Section 1
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Section 2
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Section 3
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Section 4
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Section 5
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
U. S. Constitution, 25th Amendment
Motivation for the 25th Amendment
The 25th Amendment was intended to address ambiguity in the original language. It answers questions such as
- Does the Vice President become the President?
- Who determines if the President is unable to perform duties of the office?
- If the inability ends, can the President regain the office?
- How do we fill vacancies in the office of Vice President?
- What is the line of Presidential succession?
While death of the President had dealt with several times before the 25th Amendment, there were instances of incapacity of a President. In 1893, doctors diagnosed Grover Cleveland with epithelioma. During his treatments, he was largely incapacitated and secluded from public view. Woodrow Wilson had a stroke in 1919 and was largely incapacitated for the rest of his term in office. It is widely believed that his wife, Edith, was largely acting as President behind the scenes.
Presidential Declaration of Disability
Under Section 3 of the 25th Amendment, the President may declare himself to be disabled. He does this by notifying the Speaker of the House of Representatives and the President pro tempore of the Senate. (While the Vice President is the President of the Senate, the Vice President is normally not directly involved in the Senate unless a tie vote is expected. The President pro tempore is the senator who is presiding in the absence of the Vice President.) During any period of incapacity, the Vice President is Acting President, but does not assume the office of President. When the President is capable of resuming his duties, he notifies the Speaker and President pro tempore, under section 5, that he is able to resume his duties and resumes his duties.
President Reagan in 1985, transferred power to George H. W. Bush for a few hours during a medical procedure, but stopped short of an unambiguous invocation of section 3. Once in 2002 and again in 2007, George W. Bush explicitly invoked section 3 to transfer power to Dick Cheney during medical procedures, each about 2 hours in length. In November 2021, Joe Biden transferred power to Kamala Harris for about an hour and a half for the duration of a medical procedure.
Vice Presidential Declaration of Disability
Under section 4 of the 25th Amendment, the Vice President and a majority of the cabinet can declare the President incapacitated. Alternatively, the Congress may by law designate some group other than the cabinet to share that power with the Vice President. When such a declaration is made, it is communicated to the Speaker of the House and the President pro tempore of the Senate. The Vice President then becomes the Acting President. As when the President makes the declaration, the President may resume the duties of the office by certifying that the disability has ended.
In 1981, John Hinckley shot President Reagan. Clearly, Reagan was incapacitated while in surgery, and there was likely not time for Reagan to formally invoke section 3. This situation is exactly an example of a situation that could lead to invoking section 4. Vice President Bush was on an airplane, however. By the time he was back in Washington, Reagan was out of surgery. Section 4 has never been invoked.
Had the 25th Amendment been in place at the time of President Wilson’s stroke, that situation also would have been a situation for invoking section 4. Today, there are calls in some quarters for Kamala Harris to invoke section 4 to relieve Joe Biden of presidential duties in light of cognitive concerns.
Disputes about Presidential Capacity
Section 5 allows the President to resume his duties by notifying the Speaker and President pro tempore. What if the President is really still incapacitated? The Vice President and majority of the cabinet may, within 4 days, notify the Speaker and President pro tempore that the President is still incapacitated. Within two days, Congress must then convene. Then, within 21 days, Congress must vote on the issue. If two-thirds of the House and two-thirds of the Senate find that the President is still incapacitated, the Vice President continues as Acting President.
Vacancies in the Offices of President and Vice President
Section 1 of the 25th Amendment makes clear that the Vice President becomes President when a president leaves office. This codifies the precedent set by John Tyler. When William Henry Harrison died in 1841, Vice President John Tyler assumed the duties of the office of President. He chose to be sworn in again as President and used the title moving forward. That precedent has been followed by the other seven Vice Presidents serving when their President died.
Section 2 of the 25th Amendment allows for filling the office of the Vice President when it is vacant. Due to resignations, death, or promotion to the Presidency, the office of Vice President had been vacant 16 times prior to ratification of the 25th Amendment. Following the passage of the Amendment, Presidents could now nominate a Vice President and upon approval by majority vote of both the House of Representatives and the Senate, the person would become Vice President.
This provision was well-exercised in the 1970s. In 1968, Richard Nixon chose Spiro Agnew as his running mate. In 1972, rumors of scandal began swirling around Agnew. Amid scandal and impending criminal charges, Agnew resigned on October 10, 1973 just before enter a no contest plea to a charge of tax evasion. Two days later, Nixon nominated Gerald Ford to be Vice President. Congressional approval was completed on December 6, and Ford was sworn is as President. Amidst the Watergate scandal, Nixon resigned the presidency on August 9, 1974, making Gerald Ford the president. President Ford then nominated Nelson Rockefeller to be Vice President on August 20, 1974. Congressional approval of Rockefeller was completed on December 10, 1974.
Conclusions
The Constitution provides orderly mechanisms for removal of a president whether for misconduct or incapacity. The 25th Amendment illustrates how the amendment process can be used to clarify processes in the original document of adapt the Constitution to newly recognized needs.