Editor’s Note: Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” on weekends.
The coronavirus outbreak at the White House has thrown the government into chaos. In a time of unimaginable crisis, the Constitution provides vital stability by answering most – but not quite all – of the vexing questions about what happens if the worst-case scenario unfolds.
Venerated document that it is, the Constitution isn’t always crystal clear or helpful on the specifics. Take impeachment, for example. Essentially all the Constitution tells us is that a president can be removed for “high crimes and misdemeanors” by the majority of the House, two-thirds of the Senate, and good luck figuring out the rest.
But the 25th Amendment, fortunately, is both clear and specific about what happens if the president is “unable to discharge the powers and duties of his office.” That may be because the 25th Amendment is one of the newest on the books, proposed in 1965 and ratified in 1967, shortly after the assassination of President John F. Kennedy (which raised questions about what would happen if a president was rendered comatose).
Under the 25th Amendment, essentially, there’s an easy way and a hard way to transfer power away from an incapacitated president. The easy way is that the president himself can voluntarily certify in a formal written declaration to Congress that he is or will be incapacitated, passing temporary power to the vice president, who then becomes “acting president.”
When the president recovers sufficiently to resume office, he can so certify, and the job is his again. This has happened three times, each time for less than a day: in 1985 when President Ronald Reagan underwent cancer surgery (though there was uncertainty about whether Reagan had formally invoked the amendment), and in 2002 and 2007 when President George W. Bush had routine colonoscopies.
On the other hand, the hard way to transfer power under the 25th Amendment requires the vice president, joined by at least a majority of “the principal officers of the executive department,” to certify to the Senate president pro tempore and speaker of the House that the president is “unable to discharge the powers and duties of his office.”
This is one section where the amendment is less specific, as there is some question about who qualifies as a “principal officer.” Clearly, the secretaries of treasury, state, defense, and other long-established agencies would qualify. But would the secretary of homeland security – an agency created only recently, in 2002 – qualify? And would temporary or “acting” agency heads, on which the administration seems to rely, qualify?
After this certification, the vice president assumes the powers of the presidency. The president, in turn, can contest this by certifying to congressional leaders that “no inability exists,” at which point he returns to power – but it’s not necessarily over at that point.
If the vice president and Congress disagree that the president is able to reclaim the powers of office, they can again certify to Congress that the president remains incapacitated. And if the president disagrees, then he can object and throw it to Congress, which can transfer power to the vice president – but only by a two-thirds vote of both the Senate and House.
It’s all a bit head-spinning to contemplate, but at least the procedures are crystal clear – up to a point. Things get murky, and scary, if both the president and vice president were to become incapacitated at the same time, or one quickly after the other.
There is no constitutional provision that transfers power from an incapacitated vice president to an “acting” vice president (even if the president remains healthy), though the 25th Amendment does enable the president to fill a vacant vice presidency by nominating a candidate, who must then be confirmed by a majority of both the Senate and House.
There also is no clear answer as to whether and when we go into succession if the president has passed away or is incapacitated and the vice president is alive but incapacitated. And, while the Presidential Succession Act specifies that the speaker of the House and Senate president pro tempore are third and fourth in line to the presidency, followed by the secretary of state, there is a constitutional question about whether congressional leaders can properly assume the presidency by succession, or whether the secretary of state should properly be next in line after the vice president.
Thankfully, we are not at the point where we need to break the glass on the 25th Amendment, and all the messy questions that could attend a worst-case scenario involving incapacitation of both the president and the vice president. But we are closer than we have been perhaps since the 1981 assassination attempt on Reagan. This moment compels us to at once be thankful for the clear guidance provided by the 25th Amendment, and to contemplate – and eventually to address by unambiguous legislation – some of the remaining gaps in our emergency contingency planning.
Now your questions:
Patrick (Wisconsin): Can the president, or anyone else, delay the date of the general election?
Article II of the Constitution empowers Congress to set the date for the presidential election, and requires that the date be uniform throughout the country. Exercising that constitutional authority, Congress has passed a federal law setting the date for the general election as the Tuesday after the first Monday in November – in 2020, that will be November 3. The same law also specifies the dates when presidential electors must cast their votes in their states (this year, December 14) and when Congress must receive and count those electoral votes (January 6).
Congress could pass a new law changing those dates, though that would require agreement from the Democratic-controlled House and the Republican-controlled Senate, plus the president’s signature.
Even in the exceedingly unlikely event that Congress passes and the President signs legislation postponing the 2020 general election, the date can only be pushed back so far. The 20th Amendment to the Constitution requires that the terms of the president and vice president end at noon on January 20. The Constitution can, of course, be amended, but that requires votes of two-thirds of both the House and the Senate, plus ratification from three-fourths of all state legislatures. That simply is not going to happen, either as a political or practical matter, before January 2021.
Maya (New York): Can the federal government still criminally charge the police officers involved in the killing of Breonna Taylor?
Yes, it can. State prosecutors in Kentucky have decided to bring criminal charges against only one of the three officers involved in the incident, for “wanton endangerment” charges not directly related to Taylor’s death. But the FBI continues to investigate the Taylor case as well.
Federal authorities can charge police officers who use excessive or unjustified force with the crime of willful deprivation of civil rights under color of law. And the Supreme Court in 2019 confirmed the doctrine of “separate sovereigns,” permitting both state and federal authorities to charge a person for the same conduct without running afoul of the Constitution’s bar on double jeopardy (the court reasoned that the federal government and state governments are separate political entities, so both can lawfully charge the same case).
Federal authorities have not yet reached or announced their determination on the Taylor case, but they do have the ability to bring charges if they deem such charges appropriate.
Steve (Florida): Attorney General Barr urged prosecutors to consider charging violent protesters with “sedition.” Could this really happen, under the law?
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There is a federal law criminalizing “seditious conspiracy,” but application of that law to the conduct of protesters – even those relatively few who commit acts of violence – seems like an unsupportable stretch. To prove the crime of seditious conspiracy, prosecutors must establish beyond a reasonable doubt that an individual plotted to “overthrow, put down, or destroy by force the Government of the United States.” It would be exceedingly difficult for a prosecutor to satisfy that evidentiary burden in a case involving disparate street protests.
Not surprisingly given the high legal bar, there is no recent history of federal prosecutors successfully charging seditious conspiracy. The Justice Department last charged the offense a decade ago, in 2010, and a judge ended up dismissing that case for insufficient proof. Don’t count on that changing anytime soon.
