25th Amendment consequences

Factual Questions
1

The 25th Amendment, Section 4:

Here’s the hypothetical.

President Elton John Lennon is being dogged by multiple criminal charges. To gather more favorable publicity he schedules a summit in Pyongyang, vowing to personally halt the North Korean nuclear program. But President Kim Kim Kim instead takes Lennon hostage, calling him Nowhere Man.

With the President incommunicado, Vice President Pound Shilling immediately invokes the 25th Amendment with the approval of the Cabinet and becomes Acting President.

There had been general consensus that the sitting president could not be indicted. Arguing that Lennon is no longer president, the attorneys general of 14 states indict him on charges of felony mopery and criminal dopery.

Is this legally legitimate? What have law journals speculated on this topic? Is there any consensus on what “Acting President” means?

Part the second. Then Kim releases Lennon, realizing that he would forever be stigmatized as the Asian who broke up the group. President Lennon invokes the rest of Section 4.

There are gaping holes in that timeline. Shilling has four days to declare that Lennon was brainwashed and is unfit to resume office. Who is President for those four days? Does Lennon become President and then re-lose the office upon Shilling’s declaration? Who is President while Congress has nearly a month to dither? If Shilling is retained as President are two terms as President still allowable since an Acting President isn’t President? Or is it?

All resemblance to living persons is coincidental and no current political commentary shall intrude. Since most of the authors of the 25th Amendment are dead, I am therefore allowed to say they really sucked at their one and only job.

2

It’s really not that bad. Pence says, “Trump’s unfit.” If Trump is captured by the North Koreans, then no one else says ‘Boo’ about it and Pence becomes the de facto President (same as if Trump fell into a cheeseburger induced coma.) When Trump is able to come back to the country, then he simply says “No, I’m not.” and he would immediately become acting president again. Pence then gets 4 days to convince the cabinet that Trump is a Manchurian candidate and submit a written declaration to Congress. Congress then gets to decide if he really is a North Korean drone. While they are dithering, Pence would act as president.

As for the state indictments, no one knows. It has never had to go before the courts. There’s general agreement that the courts would likely not let states prosecute a sitting President for obvious reasons. I would think that in this case, the courts of the individual states would likely put a hold on proceedings until the defendent is actually available at which point he would be President again and likely immune from prosecution. The most likely scenario I would see is that those attorney generals would just wait until he was a private citizen again and then indict. It actually wouldn’t surprise me in the least (not that I’m predicting it, only it wouldn’t surprise me) if Trump ends up indicted in New York for tax crimes after his presidency ends.

3

I think the key passage is “he shall resume the powers and duties of his office unless the Vice President”. To me that says Vice President Shilling can essentially veto President Lennon’s return to power. Then Congress has to step in and decide whether it will uphold Shilling’s decision. Until they decide, Shilling remains in power.

If President Lennon was able to resume office pending Congress’ decision then I feel the appropriate text would be “he shall resume the powers and duties of his office until the Vice President”.

4

The biggest hole to me is the “…or of such other body as Congress may by law provide…” Presumably this means congress could pass a rule that the House judicial committee can by majority vote dump the Prez, and if the VP goes along, tada! Ex-prez. There’s no timeline provided in the amendment… so if the VP conspires with the house and gets a majority in both houses, he can exercise the powers for 21 days. Put the president back in office for a minute, then repeat the process.

(The only check on this is a loss of the majority votes; and if they can get 2/3 in each house, the arrangement is permanent. It also prevents the president from packing his cabinet with obsequious toadies.)

Do existing charges disappear when someone becomes president, or would the states’ proceedings simply adjourn for a minute every 21 days?

5

The requirement for impeachment of a sitting President is one-half plus one votes in the House and two-thirds in the Senate; the requirement for a pennant removal in the case of the 25th Amendment is two-thirds of both the House and the Senate. A fair inference, then, is that if Congress is willing to make a removal permanent under the 25th for spurious reasons, they perforce would be willing to impeach, and it would require less of a majority to do so.

It’s also not clear to me that indictment would be permissible under Justice Department guidelines merely because the Vice-President has become Acting President; the President is still the President.

6

The President appoints the cabinet secretaries, so there’s some safety that a majority of them won’t back-stab him … friends and life-long advisers … these people are loyal to the President and not necessarily to the Vice-President … this still allows the OP’s hypothetical to proceed, but hopefully it will be rare enough we can deal with it on a case-by-case basis …

That was smart putting in the 21-day time limit on Congress … not having a President that long wouldn’t be anymore of a problem than the President taking a 21-day vacation …

Easier for the Vice-President as Acting President to send in the military to get the President back … and opps, one too many MIRV’s I guess … then the Vice President IS the President …

7

The majority is lower, but the procedure is higher: an impeachment requires a full trial in the Senate. The 25th just requires a vote in each House, no Senate trial

8

If there are statutes of limitations on the crimes are those limits on hold while he is president? Or can he run out the limitations while in office? (Assuming the limitations are less than his term in office.)

9

Is he, though? I know the 25th has been invoked for short periods in which the president was under anesthesia but everybody tacitly agreed that nothing changed. A longer term situation means that the U.S. has two presidents, one of whom is in a strange limbo state. I don’t know of anything quite analogous.

What Justice Department guidelines are you referring to? Can you please give a cite?

10

Really good question.

I do not find any statutory authority for the proposition that the decision not to indict because the target is the President would toll the federal statute of limitations. The statute of limitations is tolled (the clock stops ticking on the five year countdown) when the target is a fugitive. It’s tolled if evidence of an offense is in a foreign country, and the government needs extra time to get that evidence; this requires an official request to a foreign court or authority. In times of war, it’s tolled as to fraud or attempted fraud against the United States related to war contracts. It’s ten years, not five, for arson, human trafficking, and for certain financial offenses; and 20 years for thefts of major artwork. There is no statute of limitations for capital offenses or child abduction and sex offenses. See 18 USC §§ 3281 et seq.

However, there is substantial reason to believe that this does not mean an indictable President may avoid prosecution. The most obvious answer is that Congress may well react to the evidence that would persuade a grand jury to indict by impeaching and convicting the President, opening him up to criminal prosecution before his term would normally end.

Absent that, there is case law suggesting that the government may equitably toll the statute of limitations. See, e.g., *US v. Levine, 658 F.2d 113 (3rd Cir 1981), holding that statutes of limitation are “…perhaps not inviolable…” and intended for “…specifying a limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.” But they may be equitably tolled, albeit very rarely, when both “sound legal principles,” as well as the interests of justice, are implicated. (Quoting Alvarez-Machain v. US, 107 F. 3d 696 (9th Cir 1996).

On the other hand, Alvarez-Machain points out that equitable tolling is available “…absent evidence that Congress intended the contrary.” And 18 USC § 3282 says:

(emphasis added)

So an argument can be made that Congress evinced a clear desire to limit prosecutions to five years unless they enacted express instructions to the contrary. Alvarez-Machain was a civil suit in which the plaintiff was suing the United States and missed his deadline for filing, an area with somewhat more wriggle room.

The bottom line: I don’t know. The issue has never been tested. If it were me as a special prosecutor, and I had enough evidence to make me believe that I could convict the sitting President of a felony, and I believed he was in fact guilty of that felony, I’d seek an indictment and then force the President’s team to raise the spectre of quashing based on the constitutional concerns, and securing from the President a waiver of any speedy trial and statute of limitations defenses during that process.

In other words, I’d say, “OK, we can certainly hold off pursuing this indictment now because you’re so busy and what not as the Prez, but no claiming a speedy trial or statute of limitations defense after your time in office ends.”

11

Of course.

A Sitting President’s Amenability To Indictment And Prosecution (PDF), prepared by the Office of Legal Counsel, Department of Justice, October 16, 2000.

12

The 25th Amendment, Sec. 3, clearly provides that the powers and duties of the President “shall be discharged by the Vice President as Acting President.” (emphasis added).

This is distinct from Sec. 1, which equally unambiguously states, “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.”

So no, I don’t agree there’s any limbo. The President is still the President, even if the VP is Acting President.

13

There is a pretty good (and recent) rundown of whether a president can be indicted/prosecuted and more (such as subpoena a president) at the Washington Post. It includes that legal memo and other stuff.

Tl;Dr seems to be that legal opinion leans against indicting/prosecuting a sitting president but there has been some wiggle room over the years to leave a little room for doubt on that. Subpoenas are in a bigger gray area but to some extent the president can be subpoenaed (particularly for evidence…testimony is unclear). Bottom line is the Supreme Court has yet to rule on this stuff so still unsettled law. Special counsel like Mueller can apply to the attorney general for special exceptions to that memo.

Personally I think it would be weird for the court to make the president completely above the law but that is just my opinion.

14

Bricker, I think we’re discussing different scenarios. I deliberately kept the Justice Department and Congress out of it. Additionally, the Justice Department guidelines you gave talks about the President, while my entire question is what it means to have two Presidents. The circular argument that the president who isn’t president is president is the default assumption, to be sure, but my question was specifically what legal opinions exist that discuss this and the implications thereof. I take it there aren’t any. These huge holes loom, so there really should be.

15

Technically the Senate could simply skip the trial part and move to immediately vote on removal. Even if the presiding Chief Justice ruled otherwise it wouldn’t matter; unlike a judge in a criminal trial the Senate can override any ruling the Chief Justice makes by a simple majority.

16

So 218.5 votes? Because I always thought a majority meant “more than half” which for the House would only be 218 votes.

17

So, suppose that Kim Kim Kim never releases President Lennon from his cells. He produces evidence that he’s still alive, but beyond that keeps the President incommunicado. The President is alive but incapable of carrying out the duties for months or even years on end, and so Shilling is acting president for all that time. Does this time count against Shilling’s two-term limit? Can he appoint his own vice-president (or acting vice president)? If he can’t, is there anything else an actual president can do that an acting president can’t?

18

That raises another interesting question.

Let’s say President Simpson slips into what appears to be an irreversible coma. The 25th Amendment is invoked and Vice President Leonard becomes the Acting President. Does this mean the position of Vice President is empty? Or is Leonard simultaneously the Acting President and the Vice President? Can Leonard still cast tie-breaking votes in the Senate?

Suppose it’s decided that Leonard can’t hold both offices and that the Vice Presidency is empty. So in order to ensure the ongoing working of the government, he nominates Senator Carlson to fill the vacancy in the Vice Presidency. Carlson is confirmed.

Then Simpson comes out of his coma. He returns to office. What happens to Leonard? Does he go back to being Vice President, which would seem to be the normal procedure envisioned under the 25th Amendment. If so, what happens to Carlson? Or is Leonard considered to have resigned from the Vice Presidency?

If Leonard did resign from the Vice Presidency, at what point did he do so. Leonard nominated Carlson because the position of Vice President was vacant. This means Leonard had already left the Vice Presidency before Carlson was nominated. This was based on the decision that he couldn’t be Acting President and Vice President. If so, then didn’t he effectively resign the Vice Presidency when the 25th Amendment was invoked and he became the Acting President?

The reason this is not just a topic of speculation is that there have been three occasions when the 25th Amendment was invoked, albeit only for short periods of time. As far as I know, there was no question about the Vice President resuming his office when the President returned to duty.

19

What about Lennon’s two-term limit?

Let’s say Kim Kim Kim abducts president Lennon at the outset of his second term and keeps him for four years then releases him.

Can Lennon run for president again?

20

It wouldn’t be. The Vice-President remains the Vice-President. He is also the Acting President. Neither office is empty.

If President Locklear overdoses at her inauguration party and falls into a coma, Vice-President Sambora will serve as Acting President for four years, and the Vice-Presidency will not be “filled,” with anyone else, because Sambora will remain the Vice-President.