Could they remove Biden under the 25th Amendment? Should they?

The report on President Joe Biden’s retention and mishandling of classified material hit Washington this week with a thunderclap. Yet the finding of Special Counsel Robert Hur that Biden “willfully retained” such material was not as shocking as Hur’s explanation of why he will not be prosecuting.

Hur noted that, even if he prosecuted Biden, a jury would find him a “sympathetic, well-meaning, elderly man with a poor memory.” That was followed by a disastrous press conference at the White House, where a cranky president lashed out at the reporters while exhibiting additional signs of confusion.

Now, some are calling for Biden’s removal from the presidency under the 25th Amendment. However, constitutional removal would require more than just memory lapses and “get off my lawn” press conferences.

The Hur report details alarming gaps in Biden’s memory, and what Hur described as the president’s “diminished faculties.” Given the detailed accounts in the report, Biden’s press conference bordered on self-immolation. On Thursday night, Biden insisted that he was still sharp and not diminished mentally…before confusing the presidents of Mexico and Egypt. This followed a week when Biden repeatedly referenced conversations with long-dead world leaders.

The subsequent calls for Biden to be removed under the 25th Amendment are similar to demands made from Democrats and various law professors and pundits during the Trump administration. At the time, figures such as the University of Chicago’s Eric Posner argued that the “conventional understanding” of the amendment should be “enlarged” to include instances where both parties “lose confidence in the president’s ability to govern.” 

The various experts and pundits who called for Trump’s removal under the 25th Amendment are notably silent this week, even after his own Justice Department cited his diminished faculties as a reason for not charging him. 

Nevertheless, as I wrote with regard to the Trump demands at the time, calls for Biden’s removal ignore the true purpose and standard for removal. 

The issue of “disability” of a president was briefly raised in the Constitutional Convention in 1787.  It was a delegate from Biden’s home state of Delaware who asked how they would respond to a disability, “and who is to be the judge of it?” John Dickinson’s question was left unanswered in the final version of the Constitution.

What followed were persistent controversies over succession. This issue came to a head after President Dwight D. Eisenhower suffered a stroke. After the assassination of President John F. Kennedy, Congress finally addressed the issue in the 25th Amendment. The amendment addresses the orderly succession of power as well as temporary disabilities when presidents must undergo medical treatment or surgeries.

It is Section 4 that allows the removal of a president. One option is what I have called the “mutiny option.” It requires a vice president and a majority of the Cabinet to declare that the president is “unable to discharge the powers and duties of his office,” and notify Congress that the vice president intends to take over. If Vice President Kamala Harris could get eight Cabinet officers to go along with a letter to Congress, her status as the “Acting President” would likely be short-lived. Joe Biden (who yesterday declared, “I’m elderly and know what the hell I’m doing”) would only have to declare to Congress that “no inability exists.” Biden would then resume his powers.

Harris would have to send another declaration with the Cabinet members within four days to the president pro tempore of the Senate and the Speaker of the House, rejecting Biden’s claims.

With that second declaration, Congress would have 48 hours to assemble to debate the issue. It would then have 21 days to vote on the removal. However, that would require two-thirds majorities in both houses. If Congress did not vote within 21 days, the president would resume and keep power.

In other words, it is about as likely François Mitterrand coming forward to say that he faked his death and has indeed been in communication with Biden.

The question on the merits is whether “diminished faculties” constitute an incapacity. While the 25th Amendment was written with physical disabilities in mind, it clearly can apply to mental or cognitive disabilities. Yet if Biden’s decline is viewed as a barrier to prosecution, would it necessarily be a barrier to the presidency?

The answer is complicated. A study in Psychology Today of the first 37 presidents suggests half of them experienced some form of mental illness. They were still able to perform their duties. 

Memory problems are not a compelling basis for removal. However, it is a matter of degree. Biden’s cognitive problems are becoming increasingly evident, but the sole question is whether he can carry out the duties of his office. The standard is not whether he can carry out those duties well.

There is a difference between Biden confusing names and actually carrying on conversations with dead people. The latter would clearly be grounds for removal. Of course, it is hard for the public to know the degree of Biden’s decline. The White House staff has clearly shielded Biden from the public and the press for years. Even during the 2020 campaign, many suspected that the staff was hiding Biden’s mental struggles. 

In that sense, the concern over Biden’s fitness is legitimate. However, it will take much more of a showing to establish a case for his removal under the 25th Amendment.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.