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

Rep. Claudia Tenney, R-N.Y., is calling on Attorney General Merrick Garland to invoke the 25th Amendment to remove President Joe Biden from office after special counsel Robert Hur’s report said that while the president should not be prosecuted for mishandling classified documents, he does suffer from a poor memory.

In a letter to Garland Thursday, Tenney expressed her “grave concerns” about Hur’s findings. She said that 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.”

Hur said the president’s practices had presented “serious risks to national security,” and described in his report 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.

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“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. 

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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 had died.

The president said that the report had cleared him of wrongdoing, adding, “My memory is fine.”