25th Amendment Implementation, 1973-2021 - The American Spectator | USA News and Politics
25th Amendment Implementation, 1973-2021
Secretary of State Al Haig speaks to the press about President Reagan’s condition on March 30, 1981. (Wikimedia Commons)

IPart I, I covered the historical precedents (1789-1960) up to JFK’s tragically short presidency; Part II covered the years 1961-67, featuring the reaction to 1963’s assassination horror, which led to the 1967 ratification of the 25th Amendment. Part III carries the story through Trump. It begins with the serial vice-presidential and presidential vacancy crises of 1973-74. The years following saw several assassination attempts (two in 1975 and one in 1981) and multiple instances since of temporary presidential disability, with at first a reluctance to invoke the 25th Amendment formally, and later a better practice of using the 25th to cover temporary instances of disability.

The Succession Crises of 1973-74

What President Nixon’s press secretary called a “third-rate burglary” was carried out by seven Republican campaign operatives at an office building in the Watergate Complex on June 17, 1972. By the spring of 1973, it had mushroomed into a first-rate campaign finance scandal. The ensuing Senate Watergate Committee hearings had by June of Watergate Summer exposed a second-rate coverup leading to the president’s 1974 resignation. The prelude to that had been the 1973 travails of Vice President Spiro Agnew, who in June 1973 had become a target of a corruption investigation that was to lead to his resignation on October 10. Agnew pleaded nolo contendere to a single count of tax fraud, thus avoiding indictment on charges of conspiracy, extortion, and bribery arising out of public contracts awarded during Agnew’s tenures as county executive and governor.

October 1973 proved fateful not only for Agnew but also for Nixon, who on October 20 made the mistake that doomed his presidency by firing special prosecutor Archibald Cox. When both Attorney General Elliot Richardson, who had negotiated Agnew’s plea deal, and Deputy Attorney General William Ruckelshaus refused the president’s direct order to fire Cox, Nixon fired both, thus perpetuating what the press nicknamed the “Saturday Night Massacre.” The public outcry forced Nixon to appoint a successor, Texas lawyer Leon Jaworski, who was tactically more skillful than Cox, a law professor. Now Nixon faced not an academic but a savvy trial lawyer, a bad trade.

October 1973 also saw two tectonic events overseas that could have proved highly destabilizing had the 25th Amendment not been in place: the Yom Kippur War and, in its midst, the Arab oil embargo. The former led to a nuclear alert for the first time since the Cuban Missile Crisis; the latter triggered the skyrocketing oil prices that caused significant recessions in 1973 and 1979 and transferred trillions to sheikdoms, with billions invested to finance transnational terrorism. Nixon’s decision to nominate Gerald Ford minority leader of the House was widely praised on both sides of the aisle. Ford’s nomination was confirmed in 57 days.

The second succession crisis came in 1974, as the impeachment proceedings headed to a climax — Impeachment Summer. The final week of July was to prove the president’s Waterloo. On July 24 in U.S. v. Nixon, the Supreme Court ruled 8-0 that a president’s claim of executive privilege must yield to a subpoena of evidence pertaining to a specific criminal case; William Rehnquist, then an associate justice, recused himself, having provided legal advice to attorney general John Mitchell, a Watergate target.

On July 30, the House Judiciary Committee had sent three articles of impeachment to the House:

  • Obstruction of justice
  • Abuse of presidential power
  • Defiance of a lawful subpoena for taped White House conversations pertinent to the Watergate coverup

Public disclosure of a taped conversation in which Nixon had ordered the FBI director to curtail the bureau’s investigation of certain Watergate matters led a delegation of senior GOP leaders to visit the president. They told him that the full House would surely impeach him and that enough Republican senators would cross the aisle and vote to convict in the ensuing Senate trial. On August 8, the president addressed the nation; on August 9, he resigned, and Ford was sworn in. To succeed him as vice president, Ford nominated former New York Gov. Nelson Rockefeller on August 20; on December 9, the House-Senate voted 90-7 (93 percent) to confirm, and on December 19, the House voted in favor, 287-128 (69 percent). On September 8, Ford pardoned Nixon, who otherwise would have been indicted; the decision angered millions and was a significant factor in Ford’s losing the 1976 presidential election to Jimmy Carter. Rockefeller’s path from nomination to confirmation took 121 days, more than twice that for Ford.

Near Misses (1975, 1981, and 1998-99)

In 1975, two would-be assassins tried to shoot President Ford. One, Sara Jane Moore, fired her .30 caliber handgun at a 40-foot range, narrowly missing the president; her second attempt was deflected before she could fire by an alert bystander. Incredibly, Moore had been arrested the day before for illegal handgun possession but was immediately released. The other, Lynette (“Squeaky”) Fromme, a member of the Charles Manson “family” albeit not implicated in any of the cult’s murders, tried to shoot Ford with a .45 caliber handgun at point-blank range and pulled the trigger but the chamber was empty; she was grabbed by a Secret Service agent, convicted of attempted assassination, and sentenced to life, but paroled in 2009. (Bonus — NOT making this up: As a child, Fromme was part of a dance group that appeared on The Lawrence Welk Show and . . . at the White House)

Ronald Reagan had an even closer call, having actually been shot. The whole story is told in Del Quentin Wilber’s 2011 book, Rawhide Down: The Near Assassination of Ronald Reagan. (“Rawhide” was Reagan’s secret service code name.) On March 30, John Hinckley, who had become obsessed with assassination after watching the Robert De Niro film Taxi Driver, which featured actress Jodie Foster, on whom he had a crush, decided that he could impress her by assassinating the president. Hinckley stood in a crowd that afternoon and rapidly fired six shots from his .22 revolver as Reagan exited the Washington Hilton Hotel rear entrance after giving a speech to union supporters. One bullet ricocheted off the presidential limousine, another gravely wounded Press Secretary James Brady, and one bullet each struck Secret Service agent Timothy McCarthy and D.C. police officer Thomas Delahanty. Hinckley won acquittal by pleading insanity, which led to a change in the federal insanity defense law. Hinckley also had once been arrested in Nashville — for illegal possession of a firearm — during Jimmy Carter’s term. In 2016, a federal judge ordered Hinckley, then age 61, released, ruling that he was no longer a threat.

Reagan’s survival was miraculous. The bullet was a “Devastator” designed to explode upon impact. The fragmented bullet had entered his lung. Jerry Parr, the secret service agent who had pushed Reagan into the presidential limo and rolled on top of him, noticed as they headed back to the White House — the originally preferred destination for reasons of security, in case other assassins were at large — foamy blood on Reagan’s lips, indicating a punctured lung. Parr immediately ordered the driver to head for nearby George Washington University Hospital. His decision saved Reagan’s life.

Reagan wound up politically profiting from his near-miss due to his widely reported aplomb at the hospital. While he was being treated, he quipped to Parr: “I hope they (the doctors) are all Republicans.” He told the doctors: “All in all, I’d rather be in Philadelphia.” His first words to Nancy Reagan were: “Honey, I forgot to duck!” The public was under the impression that Reagan was immediately able to fully resume his presidential schedule. Medical briefings by GWU medical staff were upbeat, with no mention made of how close Reagan came to dying. But according to his personal physician, it was not until June 3 that Reagan worked a full day, and not until October that he told his doctor: “Now, I really feel like I’m all the way.”

Less remembered, but a big story for a few days, was the disastrous press conference held at the White House on March 30. With Reagan under general anesthesia, clearly, he was temporarily disabled. At the White House, Deputy Press Secretary Larry Speakes, replacing his permanently disabled boss, was asked who had command of the nuclear codes, given that Vice President Bush was on an airplane, flying back from Texas. The inexperienced Speakes was sputtering, looking like a deer caught in the headlights; he had no idea how to answer such a question. Downstairs in the White House Situation Room, meeting with other national security officials, the secretary of state, Alexander Haig, rushed upstairs into the press room, announcing that he was “in control here” until Bush returned, and that if anything happened, he would check with the vice president.

Unfortunately, Haig also said: “Constitutionally, you have the president, the vice president and then the secretary of state, in that order.” Haig, an expert on national security matters — albeit, later on, Defense Secretary Caspar Weinberger told Haig that he had misstated the nation’s alert status — was hardly one of the best constitutional scholars. He had omitted the Speaker and president pro tem, both of whom stood in front of Cabinet officials in the line of presidential succession. People more knowledgeable on the relevant laws sat downstairs, aghast, including Attorney General William French Smith. Haig, in his haste, was flustered as he took the podium, which amplified the negative impact of his well-intentioned effort.

The only senior official who had done any contingency planning was White House counsel Fred Fielding, whose preliminary draft became the basis for handling future instances. Twenty-fifth Amendment scholar John Feerick notes that it remains unclear to what degree Vice President Bush was involved; Bush, for his part, was scrupulous in avoiding even the appearance of being a usurper. He flew from Andrews Air Force Base to the vice president’s residence and then took a chopper to the White House South Lawn. He worked as acting president from the vice-presidential office. In any event, the Haig kerfuffle proved a proverbial tempest in a teapot, thanks to the president’s bravura performance.

Mini-Intervals (1985-2007)

Reagan, Bush 41, and Bush 43 saw several episodes of routine presidential incapacity due to the administration of anesthesia. In 1981, Reagan’s advisers decided not to invoke the 25th Amendment. According to Nancy Reagan and others, the 25th Amendment was informally invoked when Reagan went under surgery in 1985 for the removal of colon polyps. It was not formally, publicly invoked for fear that acknowledging presidential disability would alarm the public and our allies. To reassure the world, the first lady stayed at the White House, and the vice president stayed at his family summer home in Maine. In early 1987, some White House aides reportedly asked Chief of Staff Howard Baker to invoke the involuntary disability provisions of Section 4 of the 25th, asserting that the president was “inattentive and inept.” Nothing was done.

In May 1991, President Bush had minor surgery for an irregular heartbeat, but not under general anesthesia. That December, he had an intestinal virus that struck him at dinner during a state visit to Japan; he recovered by morning. In neither instance was the 25th invoked.

During Bill Clinton’s presidency, in March 1997, he slipped on stairs while visiting Aussie golfer Greg Norman. The “White Shark” caught Clinton and cushioned his fall, preventing serious injury. The president underwent knee surgery, for which he was put under local anesthesia. A 25th Amendment letter was drafted but not transmitted.

Bush 43 & VP Cheney

On June 29, 2003, President Bush formally invoked the temporary disability provisions of Section 3 when he was given anesthesia during a colonoscopy. The procedure took only 20 minutes, but Bush did not resume his powers until fully clear of sedation effects. Vice President Cheney was acting president for 2 hours, 15 minutes. The ongoing War on Terror was the stated reason for transferring power. In July 2007, Bush underwent a similar procedure. This time Cheney was Acting President for 2 hours, 5 minutes.

For his part, Cheney, because he had a long history of coronary artery disease, and aware that the 25th Amendment does not have a vice-presidential disability provision, had his chief of staff prepare a resignation letter, signed by the vice president, to be effective upon delivery to the secretary of state. Only the president was shown the letter. The president alone would decide whether to deliver the letter.

Trump (2017, 2020, 2021) 

Thrice in President Trump’s term the idea of using the involuntary disability provisions of Section 4 was surfaced. In April 2017, Deputy Attorney General Rod Rosenstein reportedly proposed removing Trump because of his firing of FBI Director James Comey, and alleged collusion with Russia. He reportedly gathered evidence by secretly taping the president. Rosenstein denied this, saying his suggestion was “sarcastic” and “in jest.”

In October 2020, when Trump and the first lady contracted COVID, there was public discussion of presidential disability if the president’s condition worsened and depending upon what medications he was taking. The president rapidly recovered, and nothing came of this.

After the January 6, 2021, Capitol riot, some in Congress called for using the 25th Amendment. On January 11, House Speaker Nancy Pelosi give Vice President Mike Pence 24 hours to invoke the involuntary disability clause of Section 4, or else she’d call for impeachment. Pence refused.

Bottom Line

Modern 25th Amendment precedents have made Section 3 on temporary disability routine in straightforward cases. While Section 4 on involuntary disability has never been used, that may change with the current administration.

John Wohlstetter is the author of Sleepwalking With the Bomb (Discovery Institute Press, 2d. ed. 2014).

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