How would the invocation of the 25th Amendment play out?

Law expert explains the process
Posted at 10:08 PM, Jan 07, 2021

WXMI — Authorities in D.C. and around the country are hard at work identifying rioters who stormed the hallowed Capitol building Wednesday, destroying property and pushing false claims the president won the 2020 election.

Hours after the dust settled inside the building, Joe Biden was officially confirmed by lawmakers at the nation’s 46th president.

READ MORE: Joe Biden’s win in the Electoral College confirmed, Trump commits to 'orderly' transition

But what charges, if any, are rioters open to if they’re caught?

“That’s just a matter of whether or not there’s the political will to charge some of these individuals, and there should be,” said Michael McDaniel, an Associate Dean at WMU Cooley Law School and a former national defense official. “I mean you need to set an example, this is political violence.”

McDaniel, a former Deputy Assistant Secretary of Defense for Homeland Defense Planning and a current Brigadier General in the Michigan National Guard and constitutional law professor, says sedition and insurrection are the two charges those rioters are most open to.

“Insurrection focuses on actions, violent actions, intended to overthrow a government,” said McDaniel. “Sedition has to fall outside of political speech…when you break the window at the U.S. Capitol you have broken from protected speech into unprotected criminal conduct.”

And McDaniel says you don’t have to look further than the language in the sedition law that was put in place in the early-1800s. Sedition applies when someone attempts to “delay the execution of any law of the United States or by force seize any property of the United States.” “I think both of those did apply yesterday,” said McDaniel. “Clearly that was the intent. I mean, they were looking for the legislature if you look at the video when they’re saying ‘where’s the Vice President, where’s Congress…’”

As of Thursday, almost 30 Democrat lawmakers, including House Speaker Nancy Pelosi, and one GOP Senator, Adam Kinginger of Illinois, have called for the invocation of the 25th Amendment. Section 4 of that Amendment state’s the Vice President and a majority of the executive cabinet can vote to remove the president from office. In that event, the president then has four days to respond while the vice president is in charge, then, the vote needs a super majority vote in both houses of Congress.

READ MORE: Cabinet members, lawmakers, industry group talk about 25th amendment

“Section 4 of the 25th Amendment has never been carried out so we’d be getting into uncharted territory here,” said McDaniel.

McDaniel added that court challenges to the invocation of the 25th Amendment, like the Trump team’s many challenges to the election results, are likely to fail.

“There is a clear process in the Constitution which has been left to the Legislative and the Executive branch and no role has been assigned to the Judiciary,” he said.