What is sedition? What’s the 25th Amendment?

The violent events at the U.S. Capitol on Jan. 6, 2021, have raised numerous questions about the incidents themselves and the political or legal consequences for those involved.

We spoke with James Curry, associate professor of political science, for some context on the terminology in play and the procedures in place for a president to be removed from office. Despite the disturbing assault on the Capitol, he says, the certification of the election results in its immediate aftermath was a display of strength of our constitutional democracy that offers hope for the structure of our government. This interview was conducted on Jan. 8, 2021, prior to Vice President Pence’s declining to invoke the 25th Amendment and President Trump’s second impeachment.

In recent days we’ve often heard the term “sedition.” What does sedition mean? How does it apply to what happened at the Capitol?

Sedition, in general, is any sort of conduct that’s aimed at inciting rebellion or some other form of violence against the government or the state. So in that sense, yes, what we saw from some of the rioters on Wednesday could be considered acts of sedition. What those individuals essentially were doing, whether this was their intent in every instance or not in storming the Capitol building, was to threaten our duly elected representatives and senators with either physical harm or death if they didn’t do what those rioters wanted, which was to overturn the votes of the Electoral College and declare Donald Trump the winner of the 2020 presidential election instead of Joe Biden. So that’s sort of about as clear of a case of sedition as you’re going to get. This is a group that was trying to use violence to essentially overturn the rule of law and essentially obstruct the constitutional order.

We’ve also been hearing a lot about the 25th Amendment. What is the purpose of the amendment and how could invoking it play out, in this case, to remove the president from office?

The 25th Amendment, which was ratified in 1967, relatively recently where constitutional amendments are concerned, has the purpose of generally dealing with presidential succession and disability. Governmental officials in the first half of the 20th century or so had become repeatedly concerned that there was no clear procedure in place for when a president died or became incapacitated while in office. We saw this happen with a number of presidents during the first 60 or so years of the 20th century. The 1963 John F. Kennedy assassination in particular put a scare into a lot of lawmakers. There was a possibility initially after the shooting that Kennedy would survive, but become permanently disabled. And while the constitution did make clear that in the event of death or resignation of the president, that a vice president would take over, there was nothing in the Constitution about what happens if the president was otherwise unable to perform his duties.

There was also nothing in the Constitution prior to the 25th Amendment about what happens if there is no vice-president, which raised the question: What if both of them die? Who’s in charge?

The 25th Amendment consists of four sections and creates processes and procedures for what would happen under each of these instances. Every part of the 25th Amendment has been implemented except section four, which is the part that is being talked about this week. Section four states, basically that the vice president, along with the majority of the “principal officers of the executive departments,” essentially meaning 15 cabinet members, can transmit to the House and the Senate a written declaration that the president is unable to discharge the duties and powers of his office. And as a result, the vice-president would immediately assume the power of the presidency. The president would still be the president, but the vice president would get all the powers of the presidency and actually be in control of the government.

However, what most people don’t realize is that there are subsequent steps that happened under the 25th Amendment. So, even if the vice president and a majority of the cabinet signed such a declaration and transmitted it to Congress, the president can object in a written statement to Congress. And if he does object, which I think you would assume under a hypothetical scenario that Trump would, he immediately resumed the powers of the office. If the vice president and the cabinet continued to press their declaration that the president is unfit, then Congress has to come in and adjudicate and they have 21 days to decide who is right. And if they want to side with the vice president and the cabinet against the president, they have to do so with a two-thirds majority vote in both the House and the Senate.

It’s not as simple as the vice president and the cabinet decide the president unfit and he’s out. It goes back to being a process like an impeachment, where you need to get a high threshold of support in Congress to actually remove the president which is why this is a section that was written mainly for incapacitated presidents who couldn’t voluntarily give up their power.

What would be historic about it would be using this part of the Constitution to remove a president who is less incapable of discharging the powers of the office and more seen as unfit to discharge the powers of the office, which is what impeachment is usually used for.

That leads us to the current talk of another impeachment. In the time remaining in the president’s term, what are the possibilities of that course of action?

There’s theoretically plenty of time to impeach and convict the President of the United States. Technically, if nobody wanted to debate this at all and wanted to do it as fast as they could, it would only take as long as it takes for members of the House to literally write down the articles for the House of Representatives to vote on them, for it to be literally walked over to the Senate, and then for the senators to vote. You could impeach a president theoretically that fast if you wanted to. I think it’s relatively likely that the House of Representatives will draft up, debate and vote on articles of impeachment in the next week, but there is an almost 0% chance that the Senate will do anything about it. The Senate has recessed essentially until the day before Joe Biden’s inauguration. The senators have already left town. Now, if they were really excited about convicting President Trump and removing him from office, they could by unanimous consent agree to a return to the Capitol and hold a trial. But that seems particularly unlikely because it would take just one Senator to object.

If, under either scenario, the president was removed from office before President-elect Biden’s inauguration on Jan. 20, what would happen then?

The vice president, Mike Pence, would be sworn in as President of the United States, and he would remain president until Joe Biden is sworn in on Jan. 20. He technically would have the right to appoint a vice president, but there certainly wouldn’t be time for him to do so and for Congress to ratify that choice. And I doubt he would bother.

What might be the political consequences if neither course of action proceeds and the president serves out his full term?

That is a highly likely outcome. It’s possible the House will back off the path they’re on right now and just decide to not bother because by the time the House resumes session, you’re already one week away from Biden’s inauguration and some members may just say, what’s the point. If the House does impeach, and if House Democrats are able to get a sizable number of Republican House members to vote for those articles of impeachment, I think that has a very important political consequence of signaling bipartisan disgust with President Trump’s behaviors over the last days, weeks and months, and serves as a fairly powerful rebuke of a president who seemingly tried to subvert the rule law and the constitutional order.

Now, on the other hand, if the House of Representatives returns and impeaches the president, but does so on a party-line basis, that may actually have a political effect that is opposite of what proponents of impeachment want to see. A partisan impeachment effort, much like in 2019, is likely to restore Trump’s standing. It would turn into a partisan flashpoint in which Republicans will rally to their president and Democrats will rally against him. So, if you’re hoping for a rebuke, you don’t want that kind of impeachment outcome. You’d rather have Congress do nothing.

How did you feel as you watched the assault on the Capitol unfold?

My immediate reaction was a sort of a surreal feeling first because before I moved to Utah, I lived in Washington and I spent some time as a congressional staffer on Capitol Hill. For anybody who has ever spent time working in the Capitol or the Capitol complex, to see the buildings overrun and to see members and staff have to flee for their lives, it’s just sort of a surreal experience and somewhat of a scary experience for any of us who know people who still work on Capitol Hill. There are real people who are there whose lives were in danger.

That was then followed by feelings of disgust and frustration to see citizens of the United States take such violent action against the Constitutional system and the Constitutional order, trying to unduly force the overturning of an election result by storming Congress and threatening members with violence or death if they don’t do what they want, which is not how the civil government is supposed to work. And certainly, that doesn’t mean that our country has never had violent acts. But even if those things are part of our history, it’s still not what we want to be.

However, I ended the 24 hours of Wednesday into Thursday really feeling very positive because a strong constitutional democracy doesn’t require that nobody ever tries to subvert it or that nobody ever behaves poorly or that no government official ever breaks their oath. What it requires is that the system is strong enough to resist it.

Our constitutional system has proven itself over the last days, weeks and months to be quite resilient in that you had the President of the United States, the most powerful officeholder in the federal government, work actively through the courts, through rhetoric, through the public and then ultimately, through some of his followers, through violence to try to overturn an election result against the prescriptions of the laws and the Constitution. And it failed. It failed in numerous ways with the courts checking the president and pushing back, with members of Congress checking and pushing back and with state elections officials, both Democrats and Republicans, pushing back on the president.

And that’s exactly how the Madisonian Constitutional system is supposed to work. For all the ways you might criticize the constitutional system for any of its failings, the founders had one real stroke of genius. It doesn’t require that men or women are angels. What it does is it takes their ambitious natures and it turns them against each other so that they all become a check on each other. Each branch becomes a check on the other. Each office holder becomes a check on the other officeholders so that nobody can really take power that easily in the system. And that’s the kind of thing that actually protects our constitutional order and our constitutional democracy from attempts to subvert it as we saw on Wednesday.