There has been a lot of talk recently about how to divest ourselves of the current president. There’s not a chance, and here’s why.
The United States has two constitutional methods for removing a president. The first is the impeachment process. Three separate constitutional provisions are involved. The first gives the House of Representatives the power to impeach.
Article I, Section 2, Clause 5 states: “The House of Representatives shall have the sole Power of Impeachment.”
Impeachment means an accusation or charging decision akin to an indictment. It is not a conviction. This means the House takes on the role of prosecutor and decides whether to bring charges.
In modern times, impeachment proceedings begin in the House Judiciary Committee, which investigates and holds hearings on the charges. The committee may produce an impeachment resolution that usually contains articles of impeachment based on specific charges. The House then votes on the resolution. Impeachment requires a simple majority in the House.
The Constitution gives the Senate the power to try an impeachment’s accusation. Article I, Section 3, Clause 6 states: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”
House members act as prosecutors for the trial. Attorneys for the accused can present a defense and question witnesses. The accused may testify. If the president has been impeached, the Chief Justice of the United States presides over the trial. In other cases, the vice president or the president pro tempore of the Senate is the presiding officer.
At the end of the trial, the Senate debates in closed session, with every senator limited to 15 minutes of time. Each article of impeachment is voted on separately and conviction requires a two-thirds majority. If all 100 Senators are present, sixty-seven are required to convict.
Article II, Section 4 of the Constitution defines who can be impeached and for what. It states: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
An impeached official can be convicted for the reasonably well-defined offenses of treason and bribery and the broad category of “high crimes and misdemeanors.” That phrase does not have a fixed definition. Perhaps most famously House Minority Leader Congressman Gerald Ford said in April 1970, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” At that time, Ford was seeking to impeach Supreme Court Justice William O. Douglas, a staunch liberal he accused of financial impropriety.
Impeachment is not limited to the president but applies to everyone in the executive branch and the judiciary. To date, the Senate has conducted formal impeachment proceedings nineteen times, resulting in seven acquittals, eight convictions, three dismissals, and one resignation with no further action. The eight convictions were of judges. Although three presidents have been impeached (Andrew Johnson, Bill Clinton, Donald Trump twice), the Senate has not convicted a president although Johnson survived by only one vote. (This post-Civil War drama produced one of the chapters in John F. Kennedy’s Profiles in Courage.)
The consequences of an impeachment conviction are removal from office and a disqualification from holding future federal offices. Article 3, Clause 7: “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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
A second process for removal of a president comes from Section 4 of the Twenty-Fifth Amendment. It reads:
“Whenever 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, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.”
The impeachment process is aimed at the conduct of a president, for the commission of bribery, treason, or high crimes and misdemeanors. The Twenty-Fifth Amendment is designed for situations where the president is incapacitated or dangerously unable to function but refuses to step aside. For example, before this provision became part of the Constitution, it is widely believed that Woodrow Wilson suffered a massive stroke and was no longer able to act as president. In essence, his second wife performed as the chief executive, which we tend to forget when we say that no woman has been president.
The Twenty-Fifth Amendment removal process is triggered if the Vice President and a majority of the Cabinet (or another body Congress creates) declare the president unable to discharge the powers and duties of the office. The Vice President becomes Acting President. The president can contest this determination. If the Vice President and a Cabinet majority again determine that the president is unfit, the matter goes to Congress, which can remove the president only with a two-thirds vote in both the House and Senate.
Something to be stressed here: The triggering process requires the Vice President and a majority of the Cabinet and may eventually require agreement of two-thirds of both the House and Senate. This is, indeed, a high bar.
Not surprisingly, Section 4 of the Twenty-Fifth Amendment has never been invoked.
But there is another wrinkle, and that is in the term limits of the Twenty-Second Amendment. It states: “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.”
It is the second clause of that provision that would be important in the highly unlikely event Trump would be removed. If JD Vance were to serve as president for more than two years of Trump’s unexpired term, he could only be elected to the presidency one time. If, however, he serves less than two years of the unexpired term, he could be elected to the presidency twice. The presidential term starts on January 20. In other words, again in the highly unlikely event Trump was removed before January 20, 2027, Vance would serve as president for more than two years of ‘Trump’s term and could be elected to that office only once. If, however, Trump wasbe removed after January 20, Vance could be elected twice and in theory could be president for ten years.
So. How likely are either of these events going to succeed in “ridding us of this meddlesome” president? Not very. Even if the House impeached, it is fantasy to think that two-thirds of the Senate would convict Trump. With the Twenty-Fifth Amendment, neither JD Vance nor a majority of the Cabinet are going to certify that Trump is so disabled that he can’t perform as President. And two-thirds of both the House and Senate are never going to vote for that. I, for one, hope that Congress would address more substantive issues such as comprehensive reforms of our immigration framework or our healthcare system. Wasting its time on impeachment proceedings that go nowhere is foolish.
That does not mean that I am not concerned about the performance and mental abilities of our president as is indicated by a tee shirt I have worn frequently in the last decade. It reads: “Trump: His Mother Did Not Have Him Tested.” My spouse gave it to me. The culturally literate, of course, will immediately recognize it as a reference to Sheldon Leonard on “The Big Bang Theory.” You can look it up.