by Fred Lucas
After the riot at the Capitol, congressional Democrats increasingly are calling for the removal of President Donald Trump before his term expires Jan. 20, either through a second impeachment or by invoking the 25th Amendment.
Rep. Katherine Clark, D-Mass., an assistant House speaker, said lawmakers could vote on impeachment within a week.
Theoretically, if Trump were removed from office, it would create two historic precedents.
First, Trump would be the first president to be impeached twice. And second, if Vice President Mike Pence were to become the 46th president—with a term expiring Jan. 20—it would be the shortest presidential term in American history. President William Henry Harrison died 31 days into his term.
Here are six things to know about efforts to boot Trump from office before his term ends in less than two weeks.
1. Could Opponents Use 25th Amendment?
House Speaker Nancy Pelosi, D-Calif., and Senate Democratic Leader Charles Schumer, D-N.Y., have called for Pence and the Trump Cabinet to use the 25th Amendment to remove Trump from office.
Pelosi said the House could move to impeach Trump if his Cabinet didn’t act. On Friday, she issued a statement calling for Trump to resign or face impeachment:
It is the hope of Members that the president will immediately resign. But if he does not, I have instructed the Rules Committee to be prepared to move forward with Congressman Jamie Raskin’s 25th Amendment legislation and a motion for impeachment. Accordingly, the House will preserve every option–including the 25th Amendment, a motion to impeach or a privileged resolution for impeachment.
Raskin, a Maryland Democrat, introduced his 25th Amendment legislation in October.
But legal experts say the 25th Amendment is not in play in this case, primarily because Pence reportedly has no plans to call the Cabinet together to remove Trump.
“The 25th Amendment wouldn’t be applicable here,” Ross Garber, a lawyer who specializes in political investigations and impeachment and teaches at Tulane Law School, told The Daily Signal.
Garber represented four governors who faced state impeachment investigations in Connecticut, South Carolina, Alabama, and Missouri.
The 25th Amendment to the Constitution allows for the vice president and a majority of Cabinet secretaries to determine that a president is physically or mentally unfit to carry out the duties of the office. It provides for the vice president to become acting president on a temporary basis.
Congress then could remove the president from office permanently with a two-thirds vote of both the House and Senate. That would be an even higher bar to reach than impeachment, because the latter requires only a simple majority in the House to remove a president, but two-thirds of the Senate.
Congress adopted the 25th Amendment in 1967, about three years after the assassination of President John F. Kennedy. The move was based on the concern about what to do while a president was still alive but experiencing a health crisis.
“The 25th Amendment is for when a president is unable to fulfill the duties of the office for either physically or mental reasons,” John Malcolm, director of the Meese Center for Legal and Judicial Studies at The Heritage Foundation, told The Daily Signal.
“I don’t think it’s appropriate as a matter of constitutional law,” added Malcolm, also a former deputy assistant attorney general in the Justice Department’s Criminal Division.
And it’s not practical since Pence doesn’t plan to invoke the option, he said.
Rep. Adam Kinzinger, R-Ill., on Thursday became the first GOP lawmaker to call for Trump’s removal under the 25th Amendment.
“It’s time to invoke the 25th Amendment and end this nightmare,” said Kinzinger, who also said he would back impeaching Trump.
2. What Could Trump Be Impeached For?
The charges that Democrats most often talk about are sedition, incitement to riot, and insurrection, or in aiding and abetting a riot or seditious acts.
This approach would be different from the House’s 2019 impeachment of Trump on two articles that did not allege a crime, but specified abuse of power and obstruction of Congress.
“It’s not sedition, that would be ridiculous, or aiding and abetting,” said Robert Ray, a former independent counsel who investigated President Bill Clinton and was a lawyer for Trump in the 2020 Senate impeachment trial.
“But an impeachment alleging incitement [of a riot] or aiding and abetting would not suffer the same defect as the earlier impeachment,” Ray told The Daily Signal. “At least there would be an alleged crime. A factual basis would be the challenge.”
The federal statute on sedition defines it as conduct promoting the overthrow of the U.S. government.
Both Republicans and Democrats referred to the actions of the mob that broke into the Capitol and overwhelmed police as an “insurrection.”
Federal law defines an insurrectionist as “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.”
Federal riot law includes provision on those “with intent” to “incite a riot,” or to “aid and abet any person in inciting or participating in or carrying out a riot.”
In Trump’s speech Wednesday at the “Save America Rally” before the riot, which many on both sides criticized as inflammatory, the president said at one point: “ I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
However, Trump also told the crowd: “Fraud breaks up everything, doesn’t it? When you catch somebody in a fraud, you’re allowed to go by very different rules.”
The president also said: “We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.”
U.S. Capitol Police announced Thursday night that Officer Brian Sicknick, 42, had died of his injuries and that authorities were treating the 12-year veteran’s death as a homicide. He was the fifth person to die as a result of the chaos at the Capitol.
Twitter, the social media platform that Trump long has used to spread his message, announced late Friday that it had “permanently suspended” his account “due to the risk of further incitement of violence.”
Heritage’s Malcolm said earlier that he didn’t want to guess what the House’s articles of impeachment would say, but said he thought sedition would be a stretch.
“I don’t think the president was trying to set up a coup to take over the government, but his words were certainly unwise and inflammatory,” Malcolm said.
Beyond his words at the rally are news reports that the president resisted securing the Capitol and that senior Trump administration officials had to go around him to bring in the D.C. National Guard to help bring order to the building.
“A key issue to focus on is what the president did after the riots and whether he refused to deploy forces to secure the Capitol,” Garber said. “If that is true, it’s hard to justify.”
All impeachment proceedings should be based on whether an officeholder poses a danger to the country, the government, or the office, Garber said.
“That should always be the justification for impeachment,” Garber said. “It’s not to censure or punish. It’s meant to protect the country. … You could make an argument that the president has enormous power he could exercise in 12 days.”
Rep. Ilhan Omar, D-Minn., announced Wednesday that she was drawing up articles of impeachment against Trump.
The House impeached Trump on Dec. 18, 2019, on charges of abuse of power and obstruction of Congress in connection with his telephone conversation with Ukrainian President Volodymyr Zelenskyy in which the two leaders discussed Biden’s son, Hunter Biden, as well as U.S. military aid.
The Senate acquitted Trump on Feb. 5, 2020.
3. Time Expiring for a Senate Trial?
Although only one Senate Republican, Mitt Romney of Utah, voted to remove Trump in last year’s trial, Sen. Ben Sasse, R-Neb., said Friday morning that he would consider supporting articles of impeachment if the House sent them to the Senate.
Sen. Lisa Murkowski, R-Alaska, called Friday for Trump to resign.
Even if the House impeaches Trump next week, the likelihood that the Senate could or would reconvene in time to hold a trial before Biden’s inauguration as president Jan. 20 seems unlikely, Malcolm said.
“The House could draft articles of impeachment and vote on it in 12 days,” Malcolm said. “I do not think there is time for a Senate trial. But Trump could be the first president in American history to be impeached twice.”
The Senate would have to come back into session to address House charges against Trump. The Senate calendar has the body scheduled to be in recess until Jan. 20.
Still, that early return to Washington is not impossible, Garber said.
“There is conceivably time to do this. Impeachment doesn’t have to be drawn out,” he said. “Impeachment is intended to be a measure in an emergency.”
4. What’s the Point of Impeaching Trump Now?
Article I, Section 3, Clause 7 of the Constitution says that if a federal official is convicted in an impeachment trial, “judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”
Legal experts debate whether disqualification from running for future office requires the same two-thirds majority as removal from office, or just a simple majority.
“It would not be wise to rush an impeachment for the purpose of preventing him from holding office again and bar him from running in 2024,” Ray said. “That should be something voters could decide.”
So the House could impeach and the Senate—soon to be under slim Democratic control—could hold a trial even after Trump leaves office. It basically would be to disqualify Trump from running for president again, as many suspect he will do in 2024.
5. Could Trump Be Impeached After Leaving?
Precedent going back to the scandal-plagued Grant administration’s War Secretary William Belknap suggests that retroactive impeachment could occur.
Belknap ran what is now the Defense Department for almost eight years. In 1876, a House investigation found evidence that he took part in kickbacks and corruption involving a military vendor that paid $20,000 to the war secretary.
On March 2, 1876, Belknap resigned from office just minutes before the House was scheduled to impeach him. If he thought this would preclude impeachment, he was wrong.
The House approved five articles of impeachment, including one that accused Belknap of “criminally disregarding his duty as Secretary of War and basely prostituting his high office to his lust for private gain.”
The fact that Belknap no longer held office didn’t prevent the Senate from holding a trial. On Aug. 1, 1876, a Senate majority voted in favor of all five articles of impeachment—well short of the two-thirds required to convict. The former war secretary was acquitted and never prosecuted.
Such drama would consume much of Washington if it occurred with Trump, Ray said, and that likely isn’t what Biden wants.
“Is this really how Biden wants to begin his administration?” Ray said. “It’s not really in the country’s best interest, and it isn’t in the Democratic Party’s best interest.”
6. Could Biden Justice Department Charge Trump After He Leaves?
Well before the Capitol riot, many on the left clamored for Trump to be prosecuted for something—anything—after leaving office.
Biden announced this week that he will nominate a federal appeals judge, Merrick Garland of the D.C. Circuit, to be his attorney general. President Barack Obama nominated Garland to the Supreme Court in March 2016, but the Republican-led Senate declined to consider the nomination with the presidential election eight months away.
Biden’s choice of Garland as attorney general makes a political prosecution somewhat unlikely, Ray said.
Ray secured a plea deal with Bill Clinton just before the 43rd president left office in which Clinton agreed to surrender his law license and admit to making misleading statements under oath to avoid future prosecution.
“In the past, the judgment of the Justice Department was to leave well enough alone with former presidents,” Ray said.
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Fred Lucas is chief national affairs correspondent for The Daily Signal and co-host of “The Right Side of History” podcast. Lucas is also the author of “Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump.”
Ken McIntyre contributed to this report.