Congress Can Remove Donald Trump From Office Without Impeaching Him

Presidential psychology is quickly becoming a bipartisan issue. Recently, Senator Al Franken said that he and several of his GOP colleagues shared the opinion that President Donald Trump is “not right mentally.” Shortly thereafter, 35 mental health professionals — psychiatrists, psychologists and social workers — took to the pages of the New York Times to register their own concerns that the President was demonstrating “grave emotional instability.”

These controversial armchair diagnoses are powerless on their own. But what if there was something that Senator Franken and his concerned colleagues could actually do? Constitutionally speaking, there might be.

Much has been written in recent weeks about a provision in Section 4 of the 25th Amendment that allows the Vice President and a majority of the Cabinet to send a letter to Congress stating that the President is “unable to discharge the powers and duties of his office.” This letter would immediately initiate a transfer of power to the Vice President, subject to additional Congressional review.

While theoretically possible, it is highly unlikely that the Vice President and the Cabinet would unite to remove the President absent a clear incapacitation along the lines President Woodrow Wilson experienced after a stroke. Even if there was a bipartisan consensus that he was unfit to serve, the President would have broad authority to remove his Cabinet before it could take any action.

But there is another provision in the Amendment that has received much less popular attention — one that could allow Congress to play a role in removing the President. And no, it isn’t impeachment. Instead, a little-known provision in Section 4 empowers Congress to form its own body to evaluate the President’s fitness for office, eliminating the need for the Cabinet’s involvement in the process (emphasis ours):

A second approach would be for Congress to appoint a body with no medical expertise whatsoever. Because the 25th Amendment does not require a medical diagnosis or consultation with medical professionals, Congress could even appoint members of its own ranks to the panel. This approach could give Congress the ability to enforce its own criteria for presidential fitness. For example, Congress could deem the President “unable to discharge the powers and duties of his office” if he is unable to be trusted with classified information by intelligence agencies. Congress could even use the threat of removal to exercise additional leverage over the President’s actions.

This approach would raise grave constitutional and moral questions about the proper role of Congress in our democracy. Moreover, in addition to sign-off from the Vice President, this path would likely require supermajorities in both houses of Congress to override a presidential veto, further underscoring the improbability of such a move.

Despite the long odds, President Trump’s erratic behavior in recent weeks has led many — including constitutional scholar and Harvard Law Professor Laurence Tribe — to start talking about whether the President is fit to discharge the duties of his office under the meaning of the 25th Amendment. While such conversations may be premature, it is important to understand the constitutional mechanisms that would allow removal of a president if a broad bipartisan consensus emerges that he or she is unable to lead our nation.

In the heat of the 2016 Presidential campaign, Donald Trump’s physician assured the American people that his 70-year old patient would be “the healthiest individual ever elected to the presidency.” Congress might have a different opinion.