Removing Biden Under the 25th Amendment Would Be Harder Than You Might Think, Says Jonathan Turley

As the fallout continues from the Hur Report, which said that while Joe Biden "willfully retained" classified documents, he wouldn't be charged in part because he's a "well-meaning elderly man with memory problems," calls for impeachment or removal under the 25th Amendment reached a fever pitch. While the impeachment process is straightforward, removal under the 25th Amendment is anything but.

As luck would have it, Georgetown University law professor and political analyst Jonathan Turley explained the workings of the 25th Amendment in a recent column. As Turley noted, Special Counsel Robert Hur said in the report that a jury would find Biden a “sympathetic, well-meaning, elderly man with a poor memory,” which in part led to Hur's decision against recommending charges against the 81-year-old president.

After the report was released, Biden's hastily arranged news conference, which was as disastrous if not more so than the report itself, the outcry for Biden's removal grew louder and louder — with various Republican members of Congress leading the way.

Not So Fast

"However," Turley cautioned, "constitutional removal would require more than just memory lapses and 'Get off my lawn” press conferences."

The ... calls for Biden to be removed under the 25th Amendment are similar to demands ... 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.

So what is the true purpose and standard for removal? The question of the "disability" of a president was first raised in the Constitution Convention in 1787. Turley further explained:

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.

Here's where it begins to get complicated, according to Turley.

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.

Translation: Removing Biden under the 25th Amendment would be all but impossible, particularly given the toxic political reality in which we now find ourselves.

'The question on the merits is whether “diminished faculties” constitute an incapacity.'

Here's another place where things get sticky, Turley explained.

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?
[...]
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.

Of course, Biden's handlers have tried to conceal his declining cognitive capacity since the early days of his 2020 "basement campaign." Hell, I would too, if I were Biden's campaign manager, wouldn't you?

"In that sense," Turley concluded, "the concern over Biden’s fitness is legitimate." Then this:

However, it will take much more of a showing to establish a case for his removal under the 25th Amendment.

And there it is, isn't it?

The Bottom Line

Given that the Democrat Party has no viable Plan B — as of yet, anyway — the chances of a required number of congressional Democrats, in both chambers, joining the Republicans to remove Biden from office are somewhere around zero.

Paul Krugman's Hallucinatory NYT Op-Ed About Biden Is One for the Ages

Survey: Majority of Likely Voters Not Buying Media's 'Cover Up' of Biden's 'Declining Mental Sharpness'