To impeach or not to impeach?

A look at impeachment and the 25th Amendment

Since Wednesday’s insurrection at the Capitol, there have been many questions about what to do with Donald Trump. As White House staffers and cabinet members resign, the president released a video statement in which he called the attack on the Capitol “heinous” and claimed to be “outraged by the violence and mayhem.”

The statement contradicted much of what Trump has said over the past two months and was an obvious attempt to head off removal or another impeachment. Pointedly, the president now calls for “healing and reconciliation” and pledged a “smooth, orderly, and seamless transition of power” when just a few days earlier he vowed never to concede.

But, given the events of this week, is it enough, and can Donald Trump be trusted?

First, let’s look at the options. There are two constitutional tools that can be used. The first is impeachment, which is geared toward past offenses, and the second is removal by the 25th Amendment, which is aimed at preventing future problems. Here is a brief rundown on each.

Impeachment:

  • Used for high crimes and misdemeanors

  • Requires simple majority in the House to impeach

  • Requires two-thirds majority of Senators present to remove from office

  • Articles of Impeachment can ban president from holding office in the future

25th Amendment:

  • Used when president is unable to discharge powers and duties of office

  • Requires approval by vice president and a majority of cabinet

  • Can be contested by president

  • VP and cabinet then have four days to submit written declaration to Congress

  • Congress must assemble in 48 hours and then has 21 days to make a decision

At this point, there seems little doubt that President Trump’s actions are deserving of a second impeachment. President Trump summoned the mob to Washington, fired them up with claims that the election was being stolen, gave them false hope that Mike Pence would throw out the Electoral College votes, and then dashed those hopes when Pence acknowledged that he had no authority to overrule the voters. In his address to the crowd on Wednesday morning, Trump even said that he would lead the march on the Capitol. (He didn’t.)

As I pointed out yesterday, Trump’s malfeasance did not end with firing up the crowd and turning them loose. The president reportedly never called out the National Guard. Mike Pence had to make that call even though he lacked the authority to do so. Trump also was silent through most of the incident, finally releasing a very weak video statement and tweet in which he told the rioters that he loved them. I can also point out that Trump has threatened mob violence by his supporters since 2016 and has a long history of provoking political violence.

If a president inciting an angry mob to attack the Capitol in order to overturn election results is not an impeachable and removable offense, then we might as well strip the impeachment clause from the Constitution. The president’s actions are even more serious now that a Capitol Police officer has died from injuries sustained in the attack.

The president’s comment in the video that “our incredible journey is only just beginning" is also problematic. His political career should be over. Although I don’t think there is any chance that he could be re-elected, I am less certain that he wouldn’t win the Republican nomination in 2024 and force the country into another “socialism” versus authoritarianism rematch.

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The case for the 25th Amendment is somewhat weaker. The amendment is aimed at removing a president who is unable to fulfill the duties of the president, not for removing a president who is a clear and present danger to the country. The Constitution does not specifically address the situation that we are in now. Presumably, our forebears assumed that no Americans would be dumb enough to get into our current mess. Nevertheless, the 25th Amendment is the tool we have for the job at hand.

The conundrum now is whether Trump can be trusted to safely discharge his duties. Very few people in positions of power would trust the president at this point, but they have already reacted to this mistrust by essentially placing him under house arrest, as Steve wrote this morning. But what part of the Constitution allows the president to be isolated and stripped of his authority without due process? A legitimate case could be made that such actions constitute a coup just as much as the actions of the rioters.

There have been questions about whether cabinet resignations would affect the ability to invoke the 25th Amendment. The text of the amendment says, “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…” In my opinion as an uncertified amateur internet lawyer (whatever that is worth), the vague language means that a majority of the remaining cabinet members and acting members fulfills the requirement. By the time any opposition is adjudicated, the crisis will be passed.

I’ll also point out that the cabinet decision would be final in this case. President Trump has only 12 days remaining on his term and the amendment allows Congress 21 days to make a decision on whether to affirm the cabinet’s determination. Unless it acted quickly, Congress’s decision would be moot.

Nevertheless, a 25th Amendment solution seems dead in the water for now. CNN reports that the 25th Amendment has been discussed among the cabinet, but that Pence is “highly unlikely” to pursue it at this point. If Pence is not on board, the movement will go nowhere.

Not so for impeachment though. A skinny version of impeachment could be done quickly if the House votes to amend its procedures to allow it. The Democrats still control the House and Speaker Nancy Pelosi has left the possibility of impeachment on the table.

On Friday morning, Assistant House Speaker Katherine Clark (D-Mass.) told the Week that if Pence did not move forward on the 25th Amendment, "We will move forward with impeachment.”

With a Democratic majority, the House could almost certainly impeach Trump a second time. The bigger question is what would happen in the Senate, where Democrats will hold a majority by the time the issue reaches the floor. Removal would require 67 votes, which means that at least 17 Republicans would have to cross the aisle.

Whether this would happen is anyone’s guess, but it would give Republicans a chance to redeem themselves and atone for failing to hold Trump accountable for four years. Remember that if Republicans had voted to remove what everyone knew was a corrupt and lawless president a year ago that the Capitol riot would never have happened. We might also have had a much more effective response to the pandemic that would have left Republicans in control of the White House and Congress.

There is an argument that impeachment and removal by either method would further enrage Trump supporters, but the truth is that the Trump base that includes QAnon and the Proud Boys are already enraged.

Both the president and his supporters need to be held accountable for their unprecedented, unconstitutional, and horrible actions, not only because their actions require justice, but to prevent future presidents from following in Trump’s footsteps. The prosecutor for the District of Columbia has said that the rioters who stormed the Capitol may be charged with sedition. This would be entirely appropriate.

Impeachment is an appropriate punishment for Donald Trump. Even if the Senate fails to remove the president, he will have the shame of going down in history as the first and only president to be impeached twice. It will be to the shame of the Republicans if they fail to remove him twice.

Invoking the 25th Amendment would also be the right thing to do. Although Mr. Trump acts conciliatory now, we have seen in the past how quickly his moods can swing. Once impeachment starts, it may well be necessary to isolate him and strip him of his powers. The 25th Amendment is the only constitutional way to do that.

I can offer a compromise, however. If President Trump will admit his guilt in inciting the riot and affirm to his supporters that the election was free and fair, then he should be allowed to immediately resign without being impeached. This solution balances the need for healing with the need for justice.

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