By Donna J. Blevins and Elvia R. Arriola,
Members of the Women on the Border Board of Directors
On January 6, 2021, the nation witnessed an attack on the Capitol grounds by insurrectionists incited by President Donald J. Trump. The tragic events disrupted the proceedings required by the Constitution to accept the votes of the Electoral College to install the winner of the November 2020 election as the next President. The attack, which resulted in the deaths of five individuals, including a capitol grounds police officer, followed a speech by the President, who alleges that the 2020 election results were fraudulent, wherein he encouraged his supporters to stop the Congress from accepting the report of the Electoral College and defend his claim to a second term.
If Donald Trump incited the violence on the Capitol, how is he to be held accountable under the Constitution? In response to his speech, a violent crowd, some of whom were armed, breached the Capitol, entered offices of representatives, toppled statuary, stole files and computers and otherwise forced members of Congress to seek cover in fear of their lives.
The writing below takes no opinion on which procedure might be invoked to address the consequences of an event that has been labeled a failed coup. The possibility of either impeachment or invoking the 25th Amendment is but a difference in terms of who can start the process, what procedures must be followed, and whether there are consequences beyond removal of Mr. Trump from the office of President of the United States.
Authority
Impeachment: Article I(2) – the House “shall have the sole Power of Impeachment”; Article I(3) – the Senate “shall have the sole Power to try all Impeachments”.
Section 4, 25th Amendment: when “the President is unable to discharge the powers and duties of his office.”
How It Begins
The Impeachment process starts in the Legislative branch (Article I), specifically in the House of Representatives.
The 25th Amendment removal is a function of the Executive branch (Article II). The Vice President doesn’t have to start the process, but it cannot move forward without the VP’s approval.
Required Procedures
Impeachment: There are two parts – impeachment and conviction (leading to removal). The House draws up articles of Impeachment and, if approved by a majority vote, the President is impeached. The House sends the impeachment articles to the Senate, which holds a trial and votes to acquit or convict. If the President is convicted by a two-thirds vote, he is removed from office. (Article I(3), paragraph 6). Think of it as the House functioning like a grand jury and the Senate like a trial jury. A grand jury (the House) looks at charges and decides whether to issue an indictment (impeachment). An indictment goes to a trial jury (the Senate) to acquit or convict.
25th Amendment: The Vice President and a majority of Cabinet members (the various secretaries of state, defense, and all the other departments) sign a written declaration “that the President is unable to discharge the powers and duties of his office.” Once they deliver the declaration to the Senate Speaker Pro Tempore and the Speaker of the House, the President is immediately removed and the VP becomes Acting President. The President can challenge, but the VP and Cabinet majority can re-assert its declaration, and the President can be reseated only by a 2/3 vote in each house of Congress.
Lasting Consequences
Impeachment: If the Senate convicts the President of the articles of impeachment, the Constitution sets the punishment as removal from office and a lifetime ban from ever holding another federal office (Article I(3), paragraph 7 & Article II (4)).
Congress also barred Impeached Presidents from receiving their annual pensions, office expenses, and other miscellaneous perks under The Former President’s Act (3 USC §102). A President removed under Article II(4) (Impeachment) is not considered a former president (3 USC §102(f)(2)), and so loses many of the perks. As of 2021, the former president pension alone is about $219,000. The former President and First Lady receive Secret Service protection for life under H.R. 6620, the Former Presidents Protection Act of 2012, even if removed from office via impeachment.
Once convicted and removed, the former President would “be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” (Article I(3), paragraph 7.) So, if a President is impeached, convicted, and removed from office, that former President could be arrested and tried for any criminal offenses that were in the Articles of Impeachment.
25th Amendment: Other than the public and political humiliation of having been removed from office, there is no barrier to future office-holding under the 25th Amendment. And, as a private citizen, the removed President would be legally liable for his actions.
Historical Note
The 25th Amendment was ratified in 1967. It resolves issues that arose when Lyndon Johnson’s ascension to the presidency created a vice presidential vacancy after John F. Kennedy’s assassination, with no real guidance on how to fill it. Sec. 4 of the amendment established the legal steps required to remove a sitting President incapable of performing the duties of the office. Most of us are familiar with seeing it used is as a temporary measure when a President is sedated for a medical procedure.