GOP lawmaker asks Merrick Garland to invoke 25th Amendment to remove Biden from office

Rep. Claudia Tenney, R-NY, is calling on Attorney General Merrick Garland to invoke the 25th Amendment in an effort to remove President Joe Biden from office after special counsel Robert Hur’s report said the president should not be prosecuted for mishandling classified documents.

Tenney wrote to Garland in a letter Thursday expressing her “grave concerns” about Hur’s findings, focusing in particular on the special counsel’s description of Biden as suffering from a poor memory. 

Hur’s reasons for not bringing charges against Biden even though the president “knowingly and willfully removed, mishandled, and disclosed classified documents” over a period of decades were “alarming,” Tenney wrote.

Hur declined to prosecute Biden for his handling of classified documents, but said in his report that the president’s practices had presented “serious risks to national security.” In his report, the special counsel described several instances of the president suffering from memory loss. He added that part of the reason he didn’t pursue charges against Biden was because the president could portray himself as an “elderly man with poor memory” who would be sympathetic to a jury.

Tenney criticized that reasoning in her letter to Garland. 

“We don’t prosecute or decline to prosecute people based on their personalities, or on the public’s anticipated perception of them,” Tenney wrote. “If Special Counsel finds that the evidence forms a reasonable basis to bring charges, he must do so.”

Tenney compared Hur’s decision in his investigation of Biden to special counsel Jack Smith’s bringing charges against former President Donald Trump for his handling of classified documents at Mar-a-Lago. The Department of Justice “cannot ethically bring charges” against Trump “because he has mental acuity and a forceful personality” while declining to bring charges against Biden because of his “cognitive decline,” Tenney argued.

Trump, who faces several charges, including the willful retention of national defense information, false statements and representations, conspiracy to obstruct justice, and corruptly concealing a document, has pleaded not guilty in that case.

“President Biden needs to be charged, or he needs to be removed. There is no middle ground,” Tenney wrote. She added that it was “incumbent” upon Garland to begin proceedings to remove the Biden using the 25th Amendment. 

The amendment, ratified after the assassination of President John F. Kennedy, provides the procedure for replacing the president in the event of death, removal, resignation or incapacitation. One of its sections provides the vice president and majority of either the Cabinet “or such other body as Congress may by law provide” with a mechanism to transfer power from the president.

Biden responded forcefully to Hur’s report Thursday, asking “How in the hell dare he raise that?” in response to Hur describing an instance in which Biden couldn’t remember when his son Beau died.

The president has emphasized that the report has cleared him from wrongdoing, adding, “My memory is fine.”