Posted on by rjonakait

REMOVAL OF THE PRESIDENT: A PRIMER

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.

Posted on by rjonakait

Snippets

It’s been a long time. In 1841, fifty-two years after the Constitution went into effect, John Tyler became the first vice-president to ascend to a vacant presidency. Only two dozen years later, Andrew Johnson succeeded the assassinated Abraham Lincoln. In 1881, Vice-President Chester A. Arthur became President as the result of the murder of James A. Garfield. Two decades later, Theodore Roosevelt became President because of the assassination of William McKinley. Twenty-two years later, Calvin Coolidge ascended to the presidency after Warren G. Harding’s death. After another twenty-two years, Harry S. Truman became President upon the death of FDR. Eighteen years later, in 1963, Lyndon B. Johnson became President after the assassination of John F. Kennedy. And only eleven years later, after the resignation of Richard Nixon, Vice-President Gerald Ford became President. Since then, however, no Veep has moved up to a vacant presidency, the longest stretch in our history since Tyler took the high office. With the possibility of an aged president who seems to indicate declining cognitive powers and a gun-toting population, are we due again for a vice-present to become president?

The Twenty-fifth Amendment to the Constitution lists procedures for declaring a president unable to carry out the powers and duties of the office. The Vice-President then becomes Acting President. Rumor has it that people around JD Vance, perhaps funded by Peter Thiel, are already studying this provision so if Trump wins, six months later Vance can be president.

A perceptive analyst said: “The people for public trusts are the people who can be trusted in private.”

Some Trump supporters, who, when asked about some of Trump’s problematic, sometimes frightening statements, say that Trump does not really mean it when he says that he will use the army against Americans, get rid of Obamacare, impose 100% or higher tariffs, etc. In other words, these Trumpistas support Trump because theyse don’t believe what he says. Amazing.

“The whole problem with the world is that fools and fanatics are always so certain of themselves, and wiser people so full of doubts.” Bertrand Russell.

I have friends and acquaintances who ask how, at this point, anyone could vote for Trump. Many of these people, however, would find it close to impossible to vote for a Republican even if the Democratic candidate were Bob Menendez or Eric Adams. Of course, there are many people who truly support Trump, but there are many who simply can’t vote for a Democrat. Some are voters who we might call hold-your-nose-and-vote-for-Trump, but since Trump heads the Republican ticket, they will vote for him. The crucial time is not now. It was in 2016 when he became the Republican standard bearer. Trump did get more votes than any other single candidate in the 2016 Republican primaries, but he did not get a majority of the ballots cast. However, under Republican rules, he got the majority of the delegates. Eight years ago, a majority of Republicans did not want Trump, and since then, a majority of Americans overall have not wanted him. But he may be our president again.