Pelosi is talking up the 25th amendment, which could remove Trump from office — but she has little power to make anything happen

  • House Speaker Nancy Pelosi said she will introduce a bill to investigate Trump's health and possibly remove him from office under the 25th Amendment of the Constitution. 
  • The move would require both houses of Congress to create a body with the power to override the cabinet and remove Trump. 
  • Trump could also veto any bill that passes, according to one legal expert writing in Lawfare. 
  • Trump's behavior since leaving hospital has been erratic, and even White House aides are concerned. 
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President Donald Trump's behavior in the days since he was released from hospital has been erratic.

Since Monday he has blown up talks with a stimulus deal by tweet and spread false claims comparing the coronavirus to the flu.

He also attacked his some of his closest cabinet allies for not pursuing groundless accusations of criminality Joe Biden and Barack Obama in a Fox Business interview. 

House Speaker Nancy Pelosi on Thursday openly addressed an issue that even White House aides are reportedly speculating about: has the president's judgement been affected by his illness and the medication he is taking to treat it? And is it so bad that he is unable to fulfill his duties?

Pelosi in her remarks to reporters Thursday went on to hint that lawmakers in the House could create a commission that would allow Congress to intervene and create a body to remove the president from office under the 25th Amendment of the US Constitution. 

The 25th Amendment was ratified by Congress in 1967 to ensure conditions for a smooth transfer of power if the president becomes incapacitated. It was a response to the assassination of President John F Kennedy. 

Section 4 of the amendment is most relevant to current circumstances, with a clause allowing for the removal of the president from office against their will if they are unable to fulfill their duties. 

Under the section, the decision to remove a president unable to do the job can be made by "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." 

With the US presidential election only weeks away, the prospect of adamantly loyal Vice President Mike Pence cooperating is remote. Likewise any of Trump's cabinet.

And if they were to do so, the removal would require a supermajority in both houses of Congress to remain in force if challenged by Trump. 

But that leaves open the possibility of Congress by law creating another body to try to achieve the same goal.

Something like the bill being discussed by Pelosi was initially proposed by Rep. Jamie Raskin in 2017.

It calls for the establishment of a body made up of medical experts and former executive branch officials to establish if the president's health is failing. 

Again, this is unlikely to happen. Even if Pelosi were able to pass a bill in the House, it would likely be defeated in the GOP-controlled Senate. 

Michigan State University law professor Brian Kalt in a Lawfare blog analysis in 2019 said that such attempts would probably not get anyway.

Though Congress does have the authority to create a body to make the decision, he said, "Congress has never done so and the president would presumably veto any such attempt in the middle of an actual struggle."

Another impediment standing in the way of Trump's removal under section 4 is the fact that Congress is currently not in legislative session, making the passage of any bill even harder.

However, there is a clear political logic to Pelosi's move. 

It will keep the issue of Trump's health and his response to the coronavirus center stage as the presidential election nears.

It can also be seen as a response to the relentless attacks on Biden's cognitive health that have been at the center of Trump's campaign.  

It's also likely to rile Trump, who bristles at criticism of his health. After Pelosi's statement Thursday Trump tweeted "Crazy Nancy is the one who should be under observation. They don't call her Crazy for nothing!"

But it's a move that Trump will likely seize on as he hammers home his narrative that Democrats are plotting to undemocratically remove him from office against the will of the American people. 

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