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Succession by Defenestration: How Biden’s Withdrawal May Trigger a 25th Amendment Fight

Below is my column in the Hill on the withdrawal of President Joe Biden from the 2024 election. After weeks of Democrats and the media raising the alarm of his mental capacity, Biden finally gave up his public refusal to step aside. Harris will now be the nominee through succession by defenestration, or being tossed from a window. Yet, there remains a lingering question of Biden’s capacity to serve for another six months as president.

Here is the column:

President Joe Biden’s decision to withdraw as the Democratic Party’s nominee solved an immediate problem for his party. Biden has plummeted in the polls as the vast majority of voters concluded that he is too diminished by age to serve another term. Yet, it has now created several new problems, including the obvious problem of a president who is viewed as incapable of running for an office that he continues to hold.

The Democratic Party essentially created its own political version of the 25th Amendment in forcing Biden off the ticket. This decision was about as voluntary as leaving a building by way of a window on the 46th floor. That is particularly the case when you are thrown out of the window by your closest friends.

The unseemly image of succession by defenestration will soon be whitewashed by a media that will praise Biden after weeks of declaring him incompetent and enfeebled.

That, however, leaves the lingering question after the fall. How can Biden remain in office when he is incapable of running for the office?

Biden is notably vague about the reason for his withdrawal after maintaining for days that he will be the party’s nominee. He simply says that it is in the best interests of the country.

The Democratic establishment has two equally unappealing options.

First, it could argue that Biden was withdrawing out of recognition that he is no longer politically viable. But that makes a mockery out of the democratic process. Millions of people went through the primary elections to select him as their nominee. Now he would be set aside and replaced by a vote of the party establishment like a shift in the Russian politburo.

Second, it could admit that Biden was, as stated for weeks in the media and by figures like Special Counsel Robert Hur, greatly diminished both mentally and physically. However, that makes this withdrawal an admission that could trigger a fight under the 25th Amendment.

The development could create a new constitutional controversy. The 25th Amendment was written with largely physical disabilities in mind. If a president is comatose, the incapacity is obvious and Section 4 allows the vice president and a majority of the Cabinet to sign a declaration to Congress that a president is incapable of holding office.

However, Harris is eager to avoid the image of Brutus in the dispatching of the president. To support such a declaration would risk Biden proclaiming “Et tu, Kamala?” to the nation. The key to succession by defenestration is not to be seen as the hand that pushes the president out the window. Politics follows the same rules as the mafia for capo di tutti i capi: Kill a don, never be a don. While sometimes honored in the breach in the mob, it is hardly an auspicious path for a politician.

There is, however, another intriguing possibility.

Section 4 provides that a president’s fitness can be put before Congress when the “Vice President and a majority of either the principal officers of the executive departments or such other body as Congress may by law provide.”

Previously Democrats have cited that language to suggest that they could create their own body to force former President Donald Trump out of office. Indeed, Rep. Jaime Raskin (D-Md.) sponsored legislation called the Oversight Commission on Presidential Capacity Act to create a commission empowered to examine a president to Congress on the president’s capacity. It would circumvent the necessity of getting Harris to be the primary hand that dispatched a president.

The question is whether Congress will now make this decision to warrant an investigation or even a Raskin-like bill.

This is different than President Lyndon Johnson’s decision on March 31, 1968, that “I shall not seek, and I will not accept the nomination of my party for another term as your president.”

That was before the end of the primaries. In this case, Biden won a primary in which the Democratic Party obstructed anyone who would challenge him and barred any debate.

Millions voted for him, and tens of millions of dollars were contributed to his campaign. He is now withdrawing weeks before accepting the nomination. That unprecedented decision alone would warrant a House investigation into Biden’s continuing capacity to serve in an office that he no longer believes he can run to occupy after January 2025.

Before this decision, a special counsel cited President Biden’s diminished faculties as a reason not to indict him for unlawfully retaining and handling classified material. Now, the president is effectively saying that, in addition to being allegedly too diminished to be prosecuted, he is too diminished to run for the office that he currently holds.

The question is whether Biden has ended the fight to retain his nomination only to trigger a fight to retain his office.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster).

591 thoughts on “Succession by Defenestration: How Biden’s Withdrawal May Trigger a 25th Amendment Fight”

  1. As a former and successful journalist I am happy to say I was never fooled by Biden, Pelosi, Harris or Obama. My mother’s sage advice to me “Try not to be next them in the judgement line (They ain’t smarter than Aquinas and his Quinque Via)”. As a finance writer I thought the Inflation Reduction Act was a joke, even funny

  2. Defenestration or the ‘Putin Heave’ is an interesting way to describe the removal of Biden. It is, however, consistent with Democrat ‘projection’ and their deep and abiding interest in the successful methods of Putin for opposition reduction by gravity.

  3. The debate in question, Trump lied about 30 times or outright refused to answer. Trump did win the debate on body language. Biden had a bad performance but why are we ignoring Trump’s appalling performance?

    2. Biden told 61 lies. I have listed them here before. Would you like to see them again?

      He told 15 lies in the first 6 minutes. His rate of lying only slowed down when he forgot how to talk.

      1. Trump has been lying about anything and everything FOR DECADES. And far far far beyond the “typical” politician lies and distortions. But that always gets a pass from his supporters. Always.

        Forgetting for the moment anything about actual policy and his ability to actually hold the office of POTUS, Trump is quite simply a lousy excuse for a human being… and an even worse excuse for a conservative or a Republican (by pre-MAGA definitions, anyway).

        Justify the support of this man, if you can.

        1. But what exactly are Trump’s. Never enumerated lies..they would be more than a number..start us off with a few .

  4. @Turley,

    While I do not believe that Biden was ever fit for office… there will not be any actual 25th Amendment fight.

    First, he handed this off to Harris so that she won’t do it. (Unless of course she loses the nomination at the convention even though she has received enough pledges to secure the party’s nomination.

    So without her, the cabinet won’t do it.

    There’s the other thing… Biden walked away. There’s a lot of speculation that there was the threat of using the 25th along w some back room blackmail and deal making to get him to give up the race.

    Even if Biden said no… they did the 25th… he would have found enough support from Congress that he would have still stayed in the race.

    The issue is if they were to use the 25th, you now open the flood gates of “who knew what and when” which forces a lot of questions… not just of Biden but the WH, Congress and some down stream races. Talk about creating an unnecessary ‘sheet show’ [sic]

    So no, the Bidens were working on their exit strategy.

    Harris is their best hope and she’s not going to beat Trump in a fair race.
    -G

  5. Can you imagine Kamala Harris as President of the United States? They keep saying we’re scared of Kamala, to clarify, if anyone is not scared of the Democrats stealing their way to the Whitehouse for her is NOT scared, then they are not paying attention.
    A guaranteed end to the America we have loved and a sure start of WW 3.

    1. Can you imagine a conversation between Kamala Sutra and Vladmir Putin? She would become an instant Russian asset without any consciousness of it happening.

    2. “Currently no such body exists.
      But congress can pass law to empower one”
      Do you really think that, should Congress ad hoc create such a body for the express purpose of getting rid of a specific President, that there would be no court challenges to that, or that the outcome of any challenges would be preordained? I’m skeptical of that. I’m also a bit fearful about what might happen in the future if Congress created such a body and process. When Congress establishes some new authority, uses it for a limited time, and then “leaves it laying around”, so to speak, it seems to me there is a real danger of some member or committee picking it up later on and doing real mischief with it that was the original intent of the legislation/authorization. In plain English, I don’t trust the Congress of today to go pawing through the Constitution looking for hidden powers that they have not yet exercised, I don’t trust them anywhere close to that much. They do a far more than sufficient job fornicating things up with the tools they already employ. YMMV

      1. You shouldn’t worry about Congress pawing through the Constitution looking for hidden powers. They crap on the Constitution daily, i.e., we were not founded as a Democracy, but a Constitutional Republic. Ever since that ruse was put over on Americans, we have steadily lost our freedoms. Today’s Democrat party has tried every which way to circumvent it…buying votes in GA for $2,000 a person (Warnock), buying votes by unilaterally forgiving student loans and sticking us with the bill (Biden, soon Harris), impeaching Trump without an investigation or trial, opening our border and flying people across with tax dollars, no ID, no Biometrics, no passport or visa, give them a cell phone and a debit card. And the worthless weak dix in the GOP just go on Maria’s show and whine, then write dozens of stern letters with deadlines in the next decade, which are roundly ignored with impunity. Dems vote against citizen-only voting (can’t enforce the current one?), give $6b to Iran without approval, vote down a bill to audit and account for funds to Ukraine, ad infinitum. Looking for hidden powers? When they are unopposed and unaccountable, who even reads the constitution? They get to do anything they want. Change the rules to swap out a losing old candidate to a younger one. Too many offenses to list. The last thing they’re doing at night is “combing through the Constitution.” Dems ignore it, GOP hides from it because they might find out they owe the voters a defense of it. Sorry to be cynical, but this is too far gone (both sides) to fix without another revolution.

        1. Sorry to be cynical, but this is too far gone (both sides) to fix without another revolution

          You’re not cynical but rather clear sighted. I’ve been lambasting Republicans for years (OK, decades) because they are, as you wrote, “worthless weak dix”. I cant bring myself to vote Republican because it just means enabling Democrats to yell at Americans BOHICA – without vaseline.

          I would vote for a Tulsi Gabbard – Nancy Mace ticket, 2 strong women, 2 intelligent women, 2 articulate women, and former military officers. Tulsi Gabbard is an independent and Nancy Mace is barely a Republican. Otherwise, the only solution I see is to shut it all down (close the Federal Government except for ‘defending our borders which they do not do now). Let evolutionary pressures run their course.

          Pathology is everywhere in America and metastasizing. We can not continue to live in the society we currently have. Memento mori

    3. “paying attention” to WHAT, exactly? We non-MAGA Americans do pay attention to Trump”s: criminal convictions, misogyny, lying, name-calling, other criminal indictments, sex assault adjudication, fraud adjudication, the insurrection he started by the Big Lie, and Project 2025. Kamala Harris has been: VP, a US Senator, an Attorney General and courtroom prosecutor. She is smarter, better-educated and more articulate than Trump. Other countries have had women leaders for years–to wit: Margaret Thacher in England, Italy’s woman President, etc.. There is massive enthusiasm about her candidacy–not so much for Trump and, especially, Vance.

      1. What planet are you on? This woman’s “accomplishments” are all due to the fact that she “serviced” many powerful men to help her gain her “station/s” in politics. Poor Gigi! I suggest that you get your info from some other source than the SRM. More articulate then DJT? Everything
        out of the mouth of “Cackling Comma-la” is a garbage sandwich. She is a Marxist and is all out to destroy our once great country, as is Obama,
        the world famous “community organizer”, from his third term as POTUS thru Biden. He didn’t finish his “fundamental transformation” of our USA in his 2 terms, so he et al will use surrogates to help him finish his “transformation.”

        1. Why are Americans so filthy? You disgust me.
          The vice president of the United States was formerly elected as a US senator, and prior to that she was elected as state attorney general for six years and elected as district attorney of a large US city for seven years.
          She has committed her career to public service.
          But Republicans don’t give a damn. She’s the DEI Queen who slept her way to the top. How Harris accomplished this beyond the reality of hard work, study, and winning elections evades all reasoning beyond “Democrats are so good at cheating they can steal elections without leaving any evidence.”
          Keep it up. Trumplicans attacking Harris based on race and gender, including her laugh, reminds independents of the indecency, intolerance, and incompetence of Our Long National Nightmare.

        2. Ahhh, yes, more talking points spoon-fed to you from AM Hate Radio, and propaganda-masquerading-as-news sites like BreitBart and Newsmax.

          The Democrats, while far from wholesome by any means, are not in any way “Marxist” or “communist”. In most other countries they would be viewed as a SOLIDLY centrist party… and in a few of those, they’d be considered right-leaning.

          The only reason the Democrats are talked about in such ways is because the MAGA Republicans have lurched so significantly to the extreme right. And they would absolutely lose their minds if the Democrats were actually the “Marxists” or “communists” or “socialists” or “radicals” they claim them to be.

      2. But i thought biden was gonna win, gigi???

        By the way, why did he drop out?

  6. SCOTUS decisions
    Trump trials delayed
    Fani on trial
    The debate
    Trump charges dropped
    Trump assassination failed
    Joe gets canned

    Here is the best news the libtards have gotten in 6 weeks:

    Kamala is your candidate.

    Cant really blame them for pretending to be happy.

    1. Attempting to sound intelligent, while using a term like “libtard”.

      Grow up.

  7. The 25th Amendment cannot be implemented without being initiated by the Vice President. Here is the first sentence of Section 4 of the 25th Amendment with line returns inserted to make it easier to understand:

    Whenever the Vice President

    and

    a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide,

    transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.</i.

    So, while Congress can set up any "other body" it may want to, the 25th Amendment does NOT get implemented without the Vice President's agreement.

    1. This is an edited version of my comment:
      The 25th Amendment cannot be implemented without being initiated by the Vice President. Here is the first sentence of Section 4 of the 25th Amendment with line returns inserted to make it easier to understand:

      Whenever the Vice President

      and

      a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide,

      transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

      So, while Congress can set up any “other body” it may want to, the 25th Amendment does NOT get implemented without the Vice President’s agreement. Stated another way, the necessity of getting Harris to be the primary hand that dispatched a president pursuant to the 25th Amendment cannot be circumvented.

      1. That’s what we get because our Founders assumed that people would elect a government “by the people” instead of “by professional politicians” who will bleed our country dry. Silly Founders. Dems found a way to screw you (and us) even after you’re dead.

    2. “or of such other body as Congress may by law provide”

      did you miss that part ?

      Currently no such body exists.
      But congress can pass law to empower one – so says the 25th amendment.

      It is probable that congress does not have the votes to get rid of Biden – either by the 25th amendment or by impeachment – which would be easier. But the Democratic party did not actually have the power to remove Biden as candidate – and yet they did.

      With sufficient pressure Biden will resign.

      That said – Republicans are not going to be foccused on getting rid of Biden for Harris,
      They are going to be focussed on using Biden as an albatross arround the neck of democrats.

      1. “the Democratic party did not actually have the power to remove Biden as candidate…”

        What?!
        Remember Fox News lies (see ~$787.5 million defamation settlement with Dominion), as do its Republican interviewees.
        This was no coup. No Insurrection. No attack on democracy.
        Biden was not “the candidate” or nominee. The Democratic convention hasn’t even been held yet.
        The two political parties can nominate whom they want how they want. You might recall Ted Cruz attempting to persuade convention voters to choose him as nominee instead of Trump for states Trump won the primary in 2016. Did Trump compete in primaries and caucuses in 2020? (Hint: NO.) Primaries indicate preference. That’s all.

        All of these lies were the GOP’s effort to normalize January 6th and Trump’s seditious conspiracy to thwart the Constitution, disenfranchise millions of legal voters, and steal the 2020 election.
        Recall all the promises of GOP lawsuits to block Harris from being the presumptive nominee? Not one was filed. Just the same old lies and hate- and fear-mongering.

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