U.S. President Donald Trump’s term ends at noon on January 20, 2021. Following the riots or insurrection at the Capitol on January 6th, and claims that he incited it, many want him out sooner - or at least want to punish him for what he did.
There are essentially four options: 1) Impeachment; 2) Removal via the Twenty-Fifth Amendment; 3) Censure; and 4) Post-presidential criminal prosecution. Each of these options comes with legal and political consequences. Let’s review all four.
Article II, section four outlines the process for impeaching and removing a president from office. It declares that the president, vice-president, and other civil officers of the United States can be removed from office by “impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Removal of the president is a two-stage process. First a major of the House of Representatives must agree on one or more articles of impeachment. If that happens, the House then appoints a committee to lead the prosecution of the articles. The Senate then must hear the articles of impeachment in a trial-like proceeding over which the Chief Justice of the Supreme Court presides. It takes a two-thirds vote of the Senate to convict and if that happens, the president is removed from office. Think of House impeachment as similar to indicting one for a crime of which then the Senate is a trial to determine guilt.
What would Trump have to do to constitute an impeachable offense? Article II, section four lists three possibilities. Treason is the first, and the Constitution defines that to be engaging war against the United States or giving our enemies Aid and Comfort. Treason is a high bar to meet, really historically requiring something where it involves military action or issues that directly address national security.
Finally, there is the phrase high crimes and misdemeanors? What does that mean? In adopting this phrase the constitutional framers employed language that had existed in England since 1386 when the Parliament used the term to refer to a variety of actions including the misappropriation of funds or dereliction in the performance of official duties. Mal-administration comes to mind as a close meaning, although when that word was proposed at the Constitutional Convention by George Mason, James Madison objected to it and substituted high crimes and misdemeanors in its place. Mal-administration is not simple policy disagreement or even sloppy administration, it needs to rise to perhaps a constitutional level, perhaps even including something approaching gross negligence and dereliction of duty.
The House could reasonably conclude that Trump’s speech on January 6, 2021 encouraging individuals to go to the capital and use force constituted an impeachable offense–perhaps waging war against the US, encouraging insurrection, or perhaps a dereliction of his duties under Article II, Section III of the Constitution to ensure that he “take care to faithfully execute the laws of the US.”
In the four previous instances when impeachment was pursued against Andrew Johnson, Richard Nixon, Bill Clinton, and Donald Trump, it took several weeks if not months to hold hearings and get to a vote on impeachment. It does not have to take that long and it could be expedited here against Trump, taking place in a matter of days.
But then there must be a trial. It generally takes a few days but preparation time is required for it. In theory, this all could take place before Trump leaves office, but it is unlikely. If that is true why pursue impeachment? Can a president be impeached after he leaves office?
Enter William Belknap. He was a US Secretary of War under President Grant and he was impeached by the House but resigned before the trial. The Senate nonetheless decided he could still be tried. Thus Trump could still be impeached and tried even after he leaves office. Why do it? Several reasons.
One impeaching Trump a second time would send a message about his behavior. Second, if convicted, the Constitution declares that he would be barred from ever holding federal office again. For those–both Democrats and Republicans who want to make sure Trump does not run for president again, this is an option. For Republicans, it would be a way to purge the president from the party.
Article I, Section 9, Clause 8 of the United States Constitution states that “no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” The emolument clause was added to the Constitution out of fears of foreign interference with the US government. If Trump is receiving directly or through his business holdings money or other benefits from another government, such as a state-owned enterprise, that could be an emolument violation, constituting either bribery or another constitutional violation that could be seen as a high crime or misdemeanor. Whether all this is factually accurate we do not know and the FBI investigation in part was aimed at answering these questions, thereby making his firing an effort to obstruct justice.
Finally, so far the Trump presidency has been marked by either non- or mal-administration. It has largely been ineffective in getting much done, and it is mired in a host of controversies that have rendered his administration unfit to govern. He is putting US governance in danger, suggesting that it would not be wrong for Congress to decide that his very impotence and incompetence merits impeachment.
Of course, whether impeachment will happen is up to the Republicans. Unlike with Nixon in an era where bipartisanship still existed, so far Republicans are largely behind Trump. It will not be until he is so politically embarrassing and damaging to the party that he needs to go. Trump has already done worse than what Clinton did to merit impeachment, and what he has done is potentially rising to the level of what Nixon did. The issue then seems to be not whether he should be impeached, but when.
Removal via the Twenty-Fifth Amendment
The Twenty-Fifth Amendment was ratified in 1967 to address two constitutional problems. The first was to clarify presidential succession, the second regarding what to do with presidents who are incapacitated or unable to perform their duties. For the latter, Section Four are most applicable to Donald Trump.
Section Four would allow, upon a majority vote of the vice-president and cabinet, to remove a president from office if he is “ unable to discharge the powers and duties of his office.” To do that, the vice-President would need to send a letter to the Speaker of the House and President Pro-Tempore of this decision and then the vice-president would serve as president until such time as the president informs Congress he can resume his duties. The vice-president and the cabinet have four days to vote to overrule him and then Congress would have to resolve the issue of presidential incapacity by a two-thirds vote of both the House and the Senate.
There are several issues surrounding the use of the option. As originally conceived, Section Four removal was designed for physical disabilities, not a questioning of the judgment of the president of losing faith in that person. It is not clear the Twenty-Fifth Amendment could be used for this purpose and it is not clear that his January 6, speech indicates that Trump is unable to discharge the powers and duties of his office. But even if it does fit that definition, the time periods associated with removal here will not necessarily get Trump out before January 20.
Politically, using this option as a removal of a president might set a bad precedent for what to do when the public loses faith in a president. What Trump did he possibly fits closer to an impeachable offense, but it also might simply mean that what he did was unpopular or in bad judgement and Congress and the cabinet have a right to draw a constitutional line to define acceptable behavior.
Either or both Houses of Congress could vote to censure the president. Censure is an inherent power of Congress. Here the House of Representatives could censure Donald Trump for his role in encouraging the attack on the Capitol. The Senate could do the same or join the House in doing this.
The benefit of censure is that President Trump would have no ability to appeal or challenge it as with impeachment or the Twenty-Fifth Amendment removal. Censure, especially if done jointly by both Houses, would be a permanent stain on Trump and it would set a precedent for future presidents. Censure might give Republicans an option to disapprove that does not have legal consequences. Censure would also likely pass a Democratic Party controlled House and Senate, perhaps even garnering several Republican Party votes.
Censure does not remove the president. It could also be perceived as partisan if it did not secure sufficient Republican votes.
Could Donald Trump face criminal prosecution for his actions? Possibly, but it is not clear. One could argue that President Trump’s speech constituted a crime. That cold be aiding and abetting the destruction of federal property, or making a terroristic threat. These are felonies. Conversely, it might be protected free speech and beyond prosecution. In Brandenburg vs. Ohio, the Supreme Court said that the line between speech and non-speech (or potentially prosecutable action) was whether it advocated imminent lawless behavior that was imminent. Arguably, his speech could be viewed as simply a statement of political opinion protected under the First Amendment. Thereby, much in the same way that advocacy by communists and other political groups have been ruled also to be protected free speech.
Assume the speech was not protected under the First Amendment. Therefore, to prove a criminal violation, one would need to show not just that Trump gave the speech, but that he had the required state of mind - or criminal intent, to violate an applicable law. This would not be easy.
Trump could be prosecuted for such a crime. The Department of Justice dating back to Richard Nixon and Watergate has argued that sitting presidents cannot be indicted for a crime. But no one thinks that a president is immune from prosecution, after his term ends.
Prosecution will not force President Trump out early. But, it would punish him after he leaves office. Trump may try to pardon himself before he leaves office, but mainstream legal opinion does not support that he has this power.
If President Trump resigned, or was forced out via the Twenty-Fifth Amendment, Mike Pence as President could pardon him even before being charged with a crime. President Gerald Ford did so with Nixon and a federal court upheld that.
Conversely, Joe Biden once president, in the interest of healing the country, could pardon Trump. This was Ford’s rationale in pardoning Nixon. Pardons, according to the Supreme Court, come with the implicit recognition of guilt and therefore such an action.
Short of Donald Trump resigning, it is unlikely an option being considered now can force the president out of the office early. Each option brings with it legal and political benefits and liabilities.
Author David Schultz is Distinguished University Professor at Hamline University (USA), visiting Professor at Mykolas Romeris university (MRU) and a member of MRU LAB Justice Laboratory.