Less than a week after insurrectionists stormed the Capitol in a siege that left five dead, members of the United States House of Representatives expressed their desire to restore order to American democracy by considering the use of two powers contained in the Constitution for removal of the President: invoking the 25th Amendment and impeaching the President (again). Time is of the essence if our elected officials aim to achieve their goal of removing President Trump from office before his term expires on January 20th, efforts meant to insure a peaceful transition of power as Joe Biden becomes the 46th president.
Invoking the 25th Amendment
During proceedings broadcast by CSPAN and covered by the Associated Press, Democratic House Majority leader Steny Hoyer of Maryland proposed a resolution known as “H Res 21”, which was authored by fellow Maryland representative Jamie Raskin.
This resolution urges Vice President Mike Pence to “convene and mobilize the principal officers of the executive departments of the cabinet to activate Section Four of the 25th Amendment to declare President Donald J. Trump incapable of executing the duties of his office and to immediately exercise powers as acting President.” Representative Alex Mooney of West Virginia immediately objected to the resolution, which was ultimately tabled after the House was adjourned.
Representative Hoyer revealed via Twitter that he still intends to bring the resolution to a vote. According to the House Majority Leader’s website, a first vote is scheduled for today at 7:30 pm. The last vote is expected to occur around 10:30 pm.
Democratic stalwarts like Adam Schiff are strong proponents of removing the President from office.
“If the Vice President refuses to do his duty, Congress will move with urgency to do ours,” said Schiff, referring to a possible impeachment if the 25th Amendment is not invoked.
According to the Gerald R. Ford Presidential Digital Library, the 25th Amendment was ratified in 1967 largely to clarify the line of presidential succession outside an election. Shortly after its ratification, the amendment was used to elevate Ford to the vice presidency and then to the presidency after Richard Nixon resigned in the wake of Watergate.
Section 1 of the Amendment states “[i]n case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” While this section was applied in the 1970s, Section 4 is more pertinent to the current political situation. It provides that the Vice President, along with a majority of the principal officers of the executive departments, can submit a declaration that the President is “unable to discharge the powers and duties of his office.” Under these circumstances, the President can challenge the declaration, but Congress may overrule that challenge by a two-thirds vote of both houses.
In addition to invoking the 25th Amendment, there has been widespread talk of another impeachment, potentially giving Donald Trump the dubious distinction of becoming the first President to be impeached twice.
Representatives Ted Lieu of California, David Cicilline of Rhode Island and Representative Raskin have already drafted an impeachment article for the House. They accuse the President of “willfully inciting violence against the Government of the United States, through inflammatory rhetoric” and prior efforts “to subvert and obstruct the certification of the results of the 2020 Presidential Election.”
The Article of Impeachment asserts “President Trump. . .has demonstrated that he will remain a threat to national security, democracy and the Constitution,” and the clear objective is to remove the President and prevent him from holding any “office of honor, trust or profit under the United States.”
The outline of the procedures for impeachment can be found in Article 1, Section 2 of the Constitution. Impeachment starts in the House of Representatives, which is the only body with the power to impeach. However, impeachment does not automatically equate to guilt — it is, rather, the equivalent of being charged in a court of law.
After a successful impeachment, a trial is held in the Senate. According to Article 1, Section 3, two-thirds of the Senate must agree with the impeachment and find the accused official guilty in order for a conviction to be successful.
The consequences of the impeachment process is removal from office and becoming disqualified from running for future elected positions. It does not necessarily prevent an individual from facing separate criminal charges. However, the pardon power can provide protection from criminal prosecution of federal crimes (this is touched upon in a previous article).
The President may be subject to either, neither, or both of these possible mechanisms to remove him from office. What is abundantly clear is that a growing number of resigning Cabinet members and disaffected Congresspeople have expressed disapproval and dismay over the scene at the Capitol last week and are acting to effectuate what they see as justice.
Christopher Becker is a civil litigator practicing in New York. Christopher graduated from the University of Alabama’s School of Law in 2016. There, he was a Senior Editor of the Civil Rights and Civil Liberties Law Review.