Impeachment? – or 25th Amendment ?

(… or maybe 14th Amendment?)

 

As promised to some lawyer-colleagues in England, and for anyone else over here in the UK interested in the constitutional crisis raging in America but unfamiliar with the process of impeachment, here are the sections of the US Constitution that are repeatedly mentioned and paraphrased in the media – not always accurately – together with some comments of my own, indented and italicised:

Article 1: Section 3

The Senate shall have the sole Power to try all Impeachments.

It is for the House of Representatives to approve articles of impeachment (by a simple majority); and for the Senate to try the President on those articles (two-thirds majority is required: see below).

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.

Contrary to a suggestion I have heard made by some TV pundits, a two-thirds majority would be required to convict the President if the trial in the Senate were to take place after Trump ceased to be President.

It is perhaps more open to question whether any trial of Trump taking place after 20 January (when Biden will be inaugurated) would be the trial of a ‘President of the United States’ as that phrase is understood in Article1, Section 3.

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:

This is an important limitation. It is unlikely that a fair trial in the Senate could be concluded before 20 January – the President is entitled to defend himself! – which leaves disqualification from office as the only meaningful object of impeachment. Many are saying that object can be achieved under the 14^th Amendment (see below). For his political opponents to impeach Trump solely for the purpose of denying him his presidential pension might be thought vindictive.

– but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

This reminder of his liability to common law indictment and trial undermines the argument that impeachment is necessary to ensure that any wrongdoing by the President does not go unpunished, or is otherwise inconsequential.

Amendment 14: Section 3

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

In other words: No person shall hold any office who, having taken an oath to support the Constitution, has engaged in insurrection or rebellion against the Constitution, or given aid or comfort to others who have done so.

The important words are : “or comfort”. If what we saw on 6 January was “insurrection or rebellion against the Constitution”, then Trump certainly gave comfort to those engaged in it.

Amendment 25: Section 4

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.

This is undoubtedly the most efficient means to strip the President of his powers if there are real concerns as to the possible abuse of them. The transfer of powers and duties to the Vice President is “immediate” upon the written declaration being submitted to Senate and the House. But the initiative has to be taken by the Vice President, and Pence has shown no appetite to take it.

NB: should the 25 Amendment be invoked, Pence would not become President – only “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, –

Trump may challenge the declaration; but he would not automatically resume the powers and duties of President pending resolution of the challenge.

– 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.

The President remains stripped of his powers if the Vice President and Cabinet majority stick to their guns: they have four days in which to do so

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.

In short – if the 25^th Amendment is invoked, and Trump fights back by declaring that there is no disability, he will nonetheless be powerless until the House and the Senate vote on the issue; and he will remain so if a two-thirds vote of both Houses confirms that he is indeed unable to discharge his powers and duties.

Postscript

This note is long enough; but I will end it with an observation which is not meant, in the slightest, to be flippant. Trump’s rhetoric reminded me of Marc Antony’s forum speech – with the caveat, it hardly needs saying, that the oratory fell a little short of what Shakespeare gave Marc Antony. In both instances, however, the orator deliberately fired-up the crowd to the point of riot. Neither requested in terms that the rabble go on a rampage – but each might be suspected of having wanted precisely that; and each, if nothing more, was culpably reckless as to the consequences of what he was saying. That recklessness  is summed up by Marc Antony in these chilling words:

“Mischief, thou art afoot. Take thou what course thou wilt.”

 

Gerald Gouriet QC

Inner Temple
London

9 January 2021