Republican West Virginia Attorney General Patrick Morrisey has written a letter to Vice President Kamala Harris urging her to invoke the 25th Amendment and remove President Biden from office, based on the Hur Report's repeated characterization of Biden as an "elderly man with a poor memory." In many ways, the Hur Report resulted in insult without indictment—declining to recommend prosecution of the president, but suggesting that his cognitive abilities are "significantly limited."
Assuming that the vice president would even take a letter from a State Attorney General seriously, could the 25th Amendment be used to remove President Biden from office?
First, no. Nothing in the 25th Amendment allows for the actual "removal" of the President. At most, it allows the vice president to become the "acting" president during the still-president's disability.
Section 4 of the 25th Amendment allows the vice president and a majority of the Cabinet to declare a president "unable to discharge the powers and duties of his office" when the president will not do so herself/himself (which is covered by Section 3). It's true that the VP and the Cabinet majority's declaration automatically transfers power—but not the office—to the vice president. The president is still the president. The VP is just the "acting" president.
Like Section 3, Section 4 also allows the president to declare he is ready to come back to the job. But unlike Section 3, Section 4 does not take the president's word for it. Section 4 requires a president to convince some folks he's ready.
If the president declares "I'm back," he's not back. The VP remains in his acting role for four days. During that time, if the VP and Cabinet don't think the president is ready to come back to work, then the issue goes to Congress. The only way the president doesn't come back then is for two-thirds of both the House and Senate to vote within 21 days that he should not return. Then, the VP stays as "acting" president.
But if anything else happens, for example, if less than two thirds vote, then the president becomes the president again (and the VP and Cabinet members probably start looking for new jobs). And there's no limit on how many times the president can "declare" his return and force this procedural pageantry—so one can imagine a kind of "filibuster" where a fatigued VP, Cabinet, and Congress finally give in and let the president re-assume his duties.
So it appears that the 25th amendment does not remove a president the way resignation or an impeachment conviction does. Instead, it's designed to give the president the benefit of the doubt, return him to the White House, and put the fear of God into all those who may later be perceived as betraying him or her.
Is the 25th Amendment likely to be used to temporarily place Kamala Harris in a role as "acting" president? Also no. It's not going to happen.
First, there's no reason why Vice President Harris should take her marching orders from a state attorney general, or a state governor, or a state wildlife commissioner. States are separate sovereigns—literally different "kingdoms"—from the federal government.
Second, politically, there's little reason for the democratic VP to care much about impressing voters in West Virginia. It's a state that went heavily for Trump in 2020, and is historically a reliably red state in presidential elections.
Third, even if Kamala Harris were secretly scheming to take over the presidency, the 25th Amendment is the worst way for her to do it: It's designed to be a temporary and acting role only. It's not the best way to go about getting a presidential library.
Fourth, even if Harris were some treacherous Iago-like figure, she would have to have a majority of the Cabinet back her—the same Cabinet that was appointed by the guy she's seeking to declare unfit.
Most Cabinet members would probably choose to "dance with the one who brung ya," and back Biden, not Harris.
Fifth, even if the Cabinet and VP choose to remove Biden, once he utters "ready," it's hard to imagine a modern Congress getting to two-thirds in both houses on any issue, especially one that would require all Democrats to turn on their president.
So no matter how feeble-minded Biden was portrayed by the Hur Report, Biden will not be "removed" from the White House, and Kamala Harris will not be "acting" president as a result.
Danny Cevallos is an NBC News and MSNBC Legal Analyst and a criminal defense attorney.
The views expressed in this article are the writer's own.
Uncommon Knowledge
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
