“I… do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I bear true faith and allegiance to the same …”

As a young newly minted second lieutenant in the United States Air Force and through each promotion to the rank of Colonel, I swore to “… support and defend the Constitution of the United States against all enemies, Foreign and domestic [and] that I take this obligation freely, without any mental reservation or purpose of evasion…” Similarly, the President and the Commander in Chief of the United States also swears “… to the best of [his] ability, preserve, protect and defend the Constitution of the United States.” In supporting and defending the constitution, the President as Commander-in-Chief and his military officers, in short, agree to preserve our democracy, to defend against insurrection, sedition, and any action, conduct, and behavior that would upend our form of Government.

Much like December 7, 1941, January 6, 2021 will be “a date that will live in infamy” – the date on which President Donald J. Trump engaged in an attempted overthrow of the United States Government through his inspired siege of the U.S. Capitol building. The interruption of our democracy in action as Congress engaged in the business of confirming electoral votes, which would ultimately make President-Elect Joe Biden’s defeat of Donald Trump official, through Trump’s inspired seditious and riotous activity was a failed coup. The riots on the U.S. Capitol, the sacred temple of democracy where the people’s business is conducted, as instigated by the President raises the question as to whether Donald Trump supports the Constitution. In fact, it has been argued that Donald Trump does not care about the Constitution and what it represents. Certainly, any Commander-in-Chief whose conduct is such that it compromises our democracy and diminishes our leadership position in the world does not support the Constitution.

In inspiring the siege on the U.S. Capitol and therefore our democracy while launching an attack on our legislature and our electoral process, Donald Trump exhibited a severe lack of reverence for the Constitution and our system of government and the related institutions. Acting much like an authoritarian leader and dictator, Donald Trump attempted to pressure the Vice President of the United States to engineer a coup, tried to pressure the Secretary of State of Georgia to reverse the 2020 Presidential election results, encouraged acts of sedition and insurrection, incited riots against the Government, and in all acted in a way to subvert the Constitution and our democracy which has been in place for more than 200 years. Given the President’s propensity to exhibit seditious behavior, given his current mental state and with only twelve days remaining in his presidency the most pressing question to be resolved by our leaders in Congress and in the Executive is whether the President is capable of engaging in activity that will dangerously place our democratic system and our national security in grave jeopardy given his conduct. To what extent can we remove this danger to our country?

To avoid the carnage resulting from the President’s action and his failure to support and defend the constitution and therefore our democracy, calls throughout the hallowed halls of Congress and from all corners of the country have been made for the removal of Donald Trump from office. The question is how? Which mechanism should be used to immediately remove this threat to our democracy and our national security? While impeachment is an avenue, it is not the most expedient approach. Perhaps, the invocation of the 25th Amendment to the United States Constitution could more expeditiously result in Donald Trump’s removal from the Oval and more quickly restore global prominence to the Office of the President. Some commentators and pundits believe that invoking the 25^th Amendment may send the wrong message to Donald Trump’s treasonous followers. However, invoking the 25^th Amendment under the circumstances where the President has engaged in seditious conduct could be precedent setting; it sends a message to the world that treasonous conduct especially by a sitting U.S. President will not be embraced in this democracy. It, moreover, sends a message to future leaders that any thought of a coup or related conduct by a President will result in immediate removal from office.

The Twenty-fifth Amendment to the United States Constitution was approved by Congress on July 6, 1965 and ratified by the States on February 10, 1967 in the wake of President John F. Kennedy’s assassination to resolve issues around what happens upon the death, removal, resignation of the President or his inability to fulfill his responsibility. In its simplest terms, the 25^th Amendment is a tool to remove the President from office if he becomes unable to do his job. This could be for a limited period or for the remainder of the President’s term depending on the circumstances. But it is Section 4 of the 25^th Amendment which is most relevant in determining whether Donald Trump’s recent conduct of encouraging a coup on this Government should result in his removal from office. More specifically, Section 4 of 25^th Amendment states that:

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…

It is Vice President Pence and a majority of the Cabinet or some other body the Congress may designate who decides whether the 25^th Amendment ought to be invoked. Recognizing that President Trump is unfit and therefore unable to perform his presidential duties House Speaker Nancy Pelosi, Senate Minority Leader Chuck Schumer, and others have on a bipartisan basis called for Donald Trump’s removal by invoking the 25^th Amendment. According to the Senate Minority Leader, “the quickest and most effective way…to remove this president from office would be for the vice president to immediately invoke the 25^th Amendment.” Some have called for Trump’s removal from office by impeachment if the Vice President and the Cabinet refuse to act. This approach, which lacks immediacy, would require two steps – impeachment by the House of Representatives and a trial by the Senate for removal. Whichever approach is used, there is a consensus that “removing Donald Trump as president is urgent.” Invoking the 25^th Amendment will involve Vice President Pence and members of the cabinet coming together in agreement to move forward to remove Donald Trump from office. While the law would support Donald Trump’s removal from office by invoking the 25^th Amendment given his seditious conduct and his apparent diminishing mental state, other factors may drive a different result. Factors such as politics, loyalty, fear of reprisal, and retribution may cause cabinet members and Vice President Pense not to invoke the 25^th Amendment. Worst case and as one CNN commentator intimated, we may be better served by “keeping Donald Trump on the golf course at Mar-a-Lago until January 20^th” where his influence and involvement in significant decisions may be minimized. Knowing that the invocation of the 25^th Amendment is looming over him and the embarrassment of being forced out of office, may compel Donald Trump to voluntarily resign.

Donald Trump’s action, his seditious activity, his effort to lead a coup and overthrow the Government while causing our teetering democracy to fall into disarray is sufficient for our Congressional and Executive leaders to invoke the 25^th Amendment to remove Donald Trump from office. Donald Trump has failed this country and he has failed his oath to protect and defend the Constitution of the United States. The most expedient path to end this danger to our republic and to remove the president immediately is to invoke Section 4 of the 25^th Amendment. Vice President Pence, members of the Cabinet, Nancy Pelosi, Chuck Schumer, Mitch McConnell, invoke the 25^th now! Donald Trump must be removed, post-haste!

Vincent J. Napoleon is a seasoned C-suite business leader, legal executive, and retired U.S. Air Force Colonel with substantial experience representing global Fortune 100 and 500 companies in a number of business sectors. He serves as an Arbitrator with the American Arbitration Association and is the author of numerous, articles, book chapters, and the book Pan-African Infrastructure Development and Public-Private Partnerships. He received his Juris Doctor from the University of Pittsburgh School of Law and his BSBA from Georgetown University McDonough School of Business.

Suggested citation: Vincent J. Napoleon, Invoking the 25th Amendment to the United States Constitution: The Removal of President Donald J. Trump, JURIST – Professional Commentary, January 8, 2021, https://www.jurist.org/commentary/2021/01/vincent-napoleon-25-amendment/.

This article was prepared for publication by Brianna Bell, a JURIST Senior Editor. Please direct any questions or comments to her at commentary@jurist.org.