Impeachment and Invoking the 25th Amendment are not Mutually Exclusive Options

Both can be pursued simultaneously. And there is potentially good reason to do so.


Since I wrote my previous post on the subject of impeachment, last night, the idea of removing Trump from office has gained additional momentum. Earlier today Democratic Senate leader (and soon-to-be majority leader) Chuck Schumer said that Trump should be removed from power by invoking the 25th Amendment. Failing that, he urges Congress to immediately go into session in order to proceed with impeachment. In a helpful recent post, co-blogger Josh Blackman describes the 25th Amendment process, and explains how it can potentially be used to remove Trump from office for the remaining fourteen days of his term. As Brian Kalt, a leading academic expert on the amendment, notes, the short timeframe make it more feasible to use the 25th Amendment in this case, than in other scenarios, where the president would have more time to resist.

Both Schumer and (as far as I know) everyone else who has publicly commented on the issue appears to assume that the 25th Amendment and impeachment are mutually exclusive alternatives. We must either pursue one or the other. In reality, nothing prevents pursuing both options simultaneously. Neither the Constitution nor any other law forbids it.

Schumer is probably right to say that "[t]he quickest and most effective way - it can be done today - to remove this president from office would be for the Vice President to immediately invoke the 25th amendment." But Congress can still begin the impeachment and removal process at the same time.

The two processes serve distinct purposes. The 25th Amendment can be used to temporarily remove from office a president unable to perform his duties  (though, in this case, a temporary removal would likely cover the entire rest of Trump's term). Invooking does not involve any assessment of whether the president has engaged in wrongdoing, does not necessarily involve any moral opprobrium (the president could be removed because he is unable to serve for reasons that are not his fault, such as injury or illness), and cannot be used to bar him from holding office again in the future.

By contrast, impeachment followed by conviction removes the president from office permanently, and does require a judgment that he has committed a "high crime" or "misdemeanor." The latter need not be an actual violation of criminal law; but it does have to be some sort of significant abuse of power or threat to the constitutional order. Perhaps even more importantly, impeachment can be used to not only remove the president from office, but also to impose the additional penalty of "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." The latter would be a useful step to prevent Trump from ever returning to power and thereby once again abusing it in the ways he has over the last four years.

To a much greater extent than the 25th Amendment, impeachment can create a valuable deterrent against the repetition of similar misconduct by future presidents. Most politicians fear permanent removal from power much more than a brief temporary suspension from it. And many (though perhaps not Trump) also worry about long-term damage to their reputations, which is likely to be greater in the event of a successful impeachment than with an invocation of the 25th Amendment.

Thus, I tentatively suggest that Vice President Pence and the cabinet indeed invoke the 25th Amendment, if they can. And Congress should move to impeach and convict Trump at the same time. The former step would eliminate the immediate threat Trump poses. The latter can impose proper moral and legal sanctions for his actions, and prevent him from ever returning to power again.

All of this assumes that Pence, the cabinet, and Congress have the political will needed to take these steps. I remain skeptical that either Pence or a majority of the cabinet will actually invoke the 25th Amendment. Most of them are longstanding Trump loyalists. And, for reasons noted in my last post, impeachment may not be a desirable strategy unless there are enough votes in the Senate to actually convict Trump, or at least enough to generate bipartisan opprobrium that can seriously damage his political position.

I also assume that the inability referenced in the text of the 25th Amendment (which requires the Vice President and cabinet to indicate that "the President is unable to discharge the powers and duties of his office") can include the sort of malevolence displayed by Trump, as well as a more conventional lack of physical or mental capacity to carry out his duties. The issue of the exact meaning of "unable" is one I must leave to specialists on the subject.

But, with these important caveats, there is no reason why impeachment and the 25th Amendment should be considered mutually exclusive options. They involve different processes and serve different purposes. A president can be simultaneously  guilty of "high crimes and misdemeanors" that justify removing him from office, and also "unable" to perform his duties properly. Indeed, it is possible that a propensity for criminality and abuse of power is one of the factors that make him "unable."



NEXT: "Earth Was Spinning Faster Last Year Than at Any Other Time in The Past 50 Years"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. What "immediate threat" does Trump pose, exactly?

    1. He says things they don't want the public to hear.

      1. PART TIME JOB FOR USA ] Makings money online more than 15$ just by doing simple work from home. I have received $18376 last month. Its an easy and simple job to do and its earnings are much better than regular office job and even a little child can do this to and earns money. Everybody must try this job by just use the info
        on this page…. =-=-=-=-=-=-=-=-=-= USA ONLINE JOBS

    2. He has twelve more days in office. The mind - at least Ilya's mind - boggles. Besides, this is a way to show the world how much you don't like the Orange Man, as if the Russian collusion fiasco, constant media harping, and a baloney impeachment wasn't enough.
      Now is the time for Adam Schiff to finally come forward with the absolutely damning evidence he has said he had all along.

      1. Keep that mouth open wide, JohannesDinkle . . . you will commence swallowing in less than two weeks.

          1. Even more progress shaped by the liberal-libertarian mainstream against the wishes and efforts of conservatives.

      2. He just helped incite an insurrection that ended up with 4 dead, the Capitol invaded, and 56 police officers injured. He increasingly lives in a fantasy world and still has the nuclear codes.

        1. You do know that Puerto Rican separatists fired 30+ rounds from the gallery in 1954, injuring 5 Congressmen, one seriously.

          1. And if President Eisenhower had cheered them on, that would have been grounds for impeaching him.

      3. Are the Dems truly stupid enough to snatch defeat from the jaws of victory? It's possible.

        1. They're utterly terrified that Trump is still viable for 2024 even after this event, and that people still haven't accepted Biden by this point.

          1. The solution is to govern evenhandedly, with consideration of all viewpoints. Many of the issues that are so contentious are manufactured by cynical attempts to let the other side win.

            The usual pattern is that one side insists on a comprehensive solution at the same time including demands which the other side will not accept then rather than accepting something less to get much of what they want refuse to agree.

    3. They're worried that the public isn't listening when they tell them what to believe.

  2. The 25th amendment approach assumes that Trump's own cabinet agree with you about a lot of things, starting with Trump's supposed "malevolence".

    But you're a political enemy of Trump, and have been all along. Trump obviously had no motive to stack his cabinet with political enemies. So the 25th amendment was never likely to be invoked except in cases of actual incapacity.

    And he's not incapable, you just don't like him. But that's not new. What's the new thing that's going to turn his cabinet against him, and inspire them to what would probably be career suicide? That a few people at a rally rioted?

    1. What’s the new thing that’s going to turn his cabinet against him, and inspire them to what would probably be career suicide?

      Okay, maybe you really can be that dense.

      1. It's some sort of "na na na na can't see what's going on" thing.

        Despite what is actually happening, we have commenters here comparing it to a ... I wish I was making this up ... college festival!

        At least that's a little better than the whole, "IT'S REALLY ANTIFA! FALSE FLAG!!11!!!!" brigade.

        1. "Despite what is actually happening, we have commenters here comparing it to a … I wish I was making this up … college festival!"

          That's terrible. How messed up is it to compare open insurrection to a festival!

        2. Funny I've seen claims that all of the damage in the BLM mostly peaceful protests was from Proud Boys.

        3. Well, by the new normal established by Democrats, it was just a peaceful protest. You just don't like what they were peacefully protesting.

          That's what makes this whole event so funny: the rank hypocrisy.

    2. Refusing to send in the National Guard to protect the VP and legislature after his actions knowingly put them in danger seems like good enough reason to remove him via every method available.

      You are not a reasonable human being. You are a member of a disgraced and dangerous cult.

      1. Trump does not command the National Guard -- the DC Mayor does.
        You can't be to stupid to know that...

        1. You can’t be to stupid to know that…

          I believe that's known as assuming facts not in evidence.

          1. Fuck both of you, because you're both arrogant fucking idiots who are completely wrong, as usual.

            Since D.C. is not a State, and does not have a Governor, it is the only National Guard which reports directly to the President.


          2. And in case you try the 'wikipedia isn't a source" bullshit:


            "The D.C National Guard was formed in 1802 by President Thomas Jefferson to defend the newly created District of Columbia. As such, the Commanding General of the D.C. National Guard is subordinate solely to the President of the United States. This authority to activate the D.C. National Guard has been delegated, by the President, to the Secretary of Defense and further delegated to the Secretary of the Army. The D.C. National Guard is the only National Guard unit, out of all of the 54 states and territories, which reports only to the President. "

            Notably, the D.C. Mayor is not in charge of either activating, or commanding a mission-change to, the D.C. National Guard.

            Enjoy your arrogant idiocy.

            1. See? Slapping around these bigoted hillbillies can be quite enjoyable!

              1. Except that the schmuck is wrong...

                1. Yeah, lol. The official website of the D.C. National Guard is wrong.

                  Both of you ran your mouths and didn't bother to check if you were right first. Brilliant strategy!

            2. OK, how was she able to request the MD and VA Guard after it was too late...

              Yes, she did. And they, and a bunch of Virginia State Troopers rolled. So how was she able to do this????

              Could it perhaps be that everything above her is pro forma?

              1. Are you trying to say that the mayor of Washington DC is in charge of the Maryland National Guard, Virginia National Guard, and Virginia State Police?

                1. Not only that, but MD governor Larry Hogan had a press conference today where he explained that he was ready to send the MD national guard but that the feds refused to authorize it.

        2. As always, Dr. Ed is a liar. You can assume that whatever he says is the exact opposite of truth. The DC mayor does not control the DC National Guard; POTUS does.

      2. I'm kind of curious about this story that Pence was the one who ordered in the National Guard. Because, do the National Guard actually answer to the VP? I don't think he's actually in that chain of command.

        The CNN story seems to be a bit short on actual evidence that it went down the way they claim, while the White House officially continues to maintain that it was Trump. Every source I've found pushing this story is using unnamed sources, and has a long history of hostility towards Trump.

        Now, maybe there's some evidence beyond anonymous sources, but I'm not seeing it.

        1. Every source I’ve found pushing this story is using unnamed sources, and has a long history of hostility towards Trump.

          If I had a nickel for every time that's been applicable over the past for years.....

        2. Apparently DC's mayor deliberately turned down and discouraged any offers of additional federal support before the protests.

          How culpable is she here?

          1. EXACTLY.

            And you kinda know she would have gotten coverage had she gone to the media before all this happened and said she needed help.

            1. And do you really think that the Army Secretary would fall on his sword for Trump?

              No, he'd leak how Trump wouldn't let him send in the Guard.

          2. "How culpable is she here?"

            She's not because she's a Democrat.

        3. They literally cite quotes from Christopher Miller, and Kevin McCarthy.

          Can you not read anymore either? Are you seriously going to start lying about easily provable facts? You're a disgrace.

      3. You're a stupid, ignorant paddy.

  3. My understanding is that the denominator for the number of Cabinet officials does not change despite vacancies; you would need 8 for the invocation of the 25th Amendment.

    As such, the resignation of Chao makes it seem unlikely that the 25th Amendment is seriously on the table. If it was, she would not have resigned.

    1. Chao's resignation is not effective until Monday, so it leaves four days for the 25th. I can't imagine this would wait until next week anyway, if it were going to happen at all (which, to be clear, it almost certainly will not).

      1. Her resignation is both laughable and pathetic.

        I am resigning 4 days before I was scheduled to leave. I am virtuous.

        1. Not sure if you're expecting any disagreement here.

          1. Yeah. I don't think many of us who are just plain tired of all of this are going to be, "Hey, it's good to see the rats leaving the sinking ship. I was worried that they would go down with it!"

            Then again, given the performances of certain other people ... maybe we should at least be a little thankful that there is at least some line, somewhere, that makes people say, "Enough."

            Heck, look at the posts by the Conspirators today. Better too late, I guess, than not at all?

  4. If Chuck Schumer wants to do something its probably a bad idea

    The guy spends a copious amount of time pushing legislation that violates the basic rights guaranteed by the Constitution

    1. Fun fact. Charles Schumer was a sponsor of the RFRA.

      I would say that you didn't know that before posting, but ... yeah, I already knew that. 🙂

        1. Oh, I know. That's the joke.

          But most people who complain about legislation have very little idea what legislation most people are responsible for, or how the process works.

          FWIW, I find Schumer unbearable. The GOP doesn't have a monopoly on annoying politicians; but it anything, he's too busy pushing bills naming stuff and covering for Wall Street, not advancing any particular scary agenda.

      1. Yeah, because that obnoxious Jew thought it was only going to be for the benefit of the "oppressed." He turned on it when he saw Christians using it.

      2. So "probably" is too hard a word for you to understand. That explains a lot.

  5. If we are going to blame Trump for what happened yesterday, there also ought to be consequences for those who keep calling for a coup. Ilya is no more treasonous than the kids in the House.

    The other thing this is doing is justifying a similar scorched earth tactic against Biden.

    1. Take your best shot, clingers.

      I like it when the people I am politically curb-stomping make it more interesting by putting up a bit of a fight.

      1. RAK,
        What is most annoying about you is your total lack of good will that you demonstrate in every one of your posts.
        The toxicity of today's politics comes from just such a lack of good will in many from both parties and the scorched earth agenda preach by you and your ilk.

      2. ^^^ THIS

        Is why people are willing to storm the Capitol, and vote for somebody like Trump. The Democrat party of "reason" really knows how to inspire its enemies!

    2. "If we are going to blame Trump for what happened yesterday, there also ought to be consequences for those who keep calling for a coup."

      On this we agree. Sens. Hawley and Trump, Reps. Brooks and Scalise, and the idiots telling half the country that Trump actually won the election in November need to suffer consequences as well.

  6. Should the Swamp do something tremendously stupid, or do something pathetically spiteful?


  7. Fuck off and die, Reason. Nobody called for removal of Democrats who FUCKING BAILED OUT antifa rioters.

    Fuck off and die.

    1. Do you need a blankie?

      Maybe a bottle and a swaddle?

      1. It’s obnoxiously stated but he does have a point. Democrats paid bail for rioters. Harris, for one, spoke out in support of the riots.

        How should they be publicly shamed?

        Why not address his point instead of barfing out insults? Because you can’t?

        1. Democrats paid bail for people who were arrested. Harris, for one, did not speak out in support of riots.

    2. Open wider, Ra's al Gore.

      We may decide to start shoving the progress down your whimpering throat first.

  8. The 25th Amendment deals with Presidential disability - it isn’t a convenient alternative to Impeachment for removing a President who may have engaged in some form of malfeasance in office. I have considerable doubt that the first time a Vice President initiates the 25th Amendment process will be for a situation not squarely within the intended scope of the Amendment.

    Impeachment might be possible, but for the time frame required. Don’t see how it is possible to afford any type of due process in the few remaining days of Trump’s term. The Senate is only scheduled to hold pro forma sessions until after Inauguration Day, and while that could change, it appears that calling for Trump’s removal from office is more a means of expressing strong disapproval of his recent actions than actually removing him.

      1. “Pelosi’s gonna try it . . . “

        She’s calling on Pence & the Cabinet to invoke the 25th Amendment, and talking about doing something if they don’t, while the House remains in recess until January 11th. Hard to say given the unsourced reporting, but it doesn’t appear that Pence is actually doing anything to invoke the 25th, and Pelosi probably knows that, or could if she were to speak to him. So it appears Pelosi is is raising the issue without doing the one thing she could actually do to get the removal process started - call the House into session.

        1. Actually, it looks like I was a bit off on the House schedule. The House calendar shows a ‘District Work Period’ for next week, and no floor votes before Inauguration Day. Perhaps they will also be holding pro forma sessions, too, like the Senate.

          If Pelosi was serious about removing Trump, one would think that calendar would have already been modified.

        2. By the way, the POTUS can forestall removal by a letter to Congress asserting that he is fit. It then takes a 2/3 vote of both houses to remove him

          1. Yes, and per the terms of Sec. 4, Congress has up to 21 days to take the vote. i.e., they could choose run out the clock on 45's term.

            Which is mentioned in the OP: "it can potentially be used to remove Trump from office for the remaining fourteen days of his term."

            Do try to keep up.

    1. "it isn’t a convenient alternative to Impeachment for removing a President who may have engaged in some form of malfeasance"

      We had to break norms in order to save them.

      It would be an actual coup d'etat.

    2. The only process they think is due, is confirming that Trump is the President being removed. I think they can do that pretty quickly.

      But mostly it's one last NeverTrump fantasy.

      1. Once 20 Republicans threaten Trump with removal you don’t actually have to remove him for impeachment to have an impact. So in December 2019 20 Republican senators could have told Trump they will remove him if he doesn’t drop out of the 2020 race and then Trump could have said he will agree if they fund his wall and pass a major border security package with DACA solution. Pelosi would have had to agreed to those demands if she really believed getting rid of Trump was best for the country...instead we are where we are right now because Republican senators didn’t think outside the box. Trump actually had leverage in December of 2019 for acting like such an ass but Republican senators inexplicably took their chances he wouldn’t act the ass again!?!

    3. An impeachment would not become moot upon Trump´s leaving office. He would still be subject upon conviction to disqualification from holding future federal office.

  9. Why doesn't "Double Jeopardy" apply to Impeachment?

    1. Even if it did, what possible relevance could that have here, you coprophagic, cretinous traitor?

    2. Because the impeachment clause says it doesn't.

      More generally because impeachment is orthogonal to criminal law.

    3. Because it is a different crime. Double Jeopardy means you can not be tried again for a crime, not that you can never be tried again.

  10. Progfessor Somin: The 25th amendment will not be invoked. There will not be an impeachment.

  11. The question of what would justify removing Trump is somewhat analogous to whether Henry II was guilty of the murder of Thomas a Becket for saying "Will no one rid me of this meddlesome priest?" No, that's not a direct order to kill someone, but the four knights had little difficulty figuring out what he wanted.

    Trump has been pumping up his base for weeks with claims of a stolen election. He has them in a state of rage. And no, telling them to march on the capitol is not a direct order to storm the place, but the results were kinda predictable.

    1. That said, I agree there will be no impeachment and no invocation of the 25th Amendment, but it does make me worry what other little surprises he may have in store before January 20.

    2. Krycheck,

      Should DC's mayor be removed from office for turning down additional federal law enforcement personnel before the protests?

      1. Assuming she did that, and I know better than to believe everything I read in the federalist, it would have been negligent rather than inciting. In other words, hers was stupid; his was deliberate.

        1. I didn't see anywhere else that she declined further federal LE help but I saw in a couple of reputable places that she DID tell the DCPD to stand down before the rally. To keep a low profile so as not to inflame.

          As you say, not inciting but certainly short-sighted.

        2. Trump asked for a peaceful protest. You know, like Obama and Biden and Harris all did.

          Unless you're saying they also incited the billions in damages and dozens of deaths. Is that what you're saying.

          Meanwhile if the proper safety precautions for a protest were deliberately ignored.... That's criminal negligence.

          1. No,what I’m saying is that if you seriously can’t tell the difference between Trump’s speech and that of Obama, Biden and Harris, then your powers of observation are woefully lacking.

            1. It's different because Trump...

        3. Assuming she did that, and I know better than to believe everything I read in the federalist, it would have been negligent rather than inciting. In other words, hers was stupid; his was deliberate.

          You should really know better than to believe anything you read in the Federalist, but in this case they actually do post the letter she sent. Which as always makes clear that AL is telling at best a half truth.

          What her letter quite clearly says and is directed at was the Trump policy during BLM protests this summer of having unidentified armed personnel running around doing whatever they felt like. (And literally unidentified; not only were they not displaying personal IDs like badges or the like, but they were not even wearing anything that identified what agency they worked for.) What she requests — and remember, she can only ask; the feds don't answer to her — is that they only use identifiable people, in coordination with DC law enforcement, rather than unilaterally sending these people in.

      2. I agree that it's worth inquiring into the causes of what seem like woefully inadequate security arrangements at the Capitol.

        Obviously, any errors of judgment in this regard are orders of magnitude less troubling than Trump's malfeasance.

        1. You are confusing moral culpability with potential for producing harm. As I have said before, experience teaches that incompetence can cause much more harm than malfeasance.

          Not to mention that Trump will be gone in two weeks. The mayor of DC won't be.

  12. What a wonderful idea for brining the country back together and healing the wounds.

    On Jan 21, we can begin with impeachment for President Biden.

    1. Republicans have to control the House first.

      1. Only to win. But to push impeachment and to grab headlines, a minority of one can do that.

  13. Schumer needs to get the articles of impeachment in his hand and then he and 20 Republican senators can make Trump bark like dog! Once he has the articles of impeachment from the House Trump becomes their little puppet.

    1. Look, the idiot can be arrested and prosecuted on the 21st of January. Let Biden make that decision and respect his judgement

  14. Another jew following the script.....quite un American. Why not send all jews back to Israel???

    Just ignore the fact that WE THE PEOPLE have different opinions than jews like Schumer. Give it up.

    1. Up yours, Pavel.

      Am Chai Yisrael!

      We'll still be here while you're rotting away in the ground.

    2. What "people?" Go back to Russia. I understand their system of government is very hospitable to democratic ideals and free speech.

      (Putin, for some reason, loves Jews. Go figure.)

    3. Somebody should, via geostationary satellite and a powerful laser beam, keep a Star of David shining perpetually on your house.

  15. The Cabinet revolt rumor smells to me more as a desperate last ditch attempt to defuse the unpopularity of a pointless removal drive hoping some jumpy Republicans are dumb enough to scared by the headlines so they can be portrayed as sympathetic and spread the blame on both parties. And drive an intraparty wedge.

    The Republicans are dumb but I doubt enough are this dumb. If they are they really deserve to immediately be dissolved.

  16. Good to know when Biden starts another illegal war and starts paying China back for the Hunter cash.
    Will keep your thoughts in mind.

  17. “Orchestrating a mob to pressure Congress is inexcusable,” Barr said in a statement obtained by POLITICO. “The President’s conduct yesterday was a betrayal of his office and supporters.”

    When you've lost Bill Barr, you know what you did is indefensible.

    That said, I agree the 25th Amendment is inapplicable here, and there is not enough time for impeachment. That leaves only criminal prosecution of Trump after January 20th, which would be explosive. No good options, really.

    1. The only criminal prosecutions on the horizon are those of Hunter Biden.

    2. If Trump were actually going to be impeached or removed, nothing can move fast enough to stop his leaving the country on AF1, save an actual military coup.
      And we don't want that.

      1. Where would Trump go in your scenario? North Korea? Russia?

        1. Perhaps some country would chose to honor Iran's Interpol Red Notice on Trump. Not sure fleeing the U.S. is actually a good option for him right now, either.

  18. The people around Trump -- whether in his business "ventures" or in the Oval Office -- are perfectly aware that he is a buffoon. They ignore his crazier orders. We know this from several sources.

    For the next 13 days, they should ignore all his orders. Tie him to a chair.

    Since Republicans are not going to go along with the responsible thing to do -- the 25th Amendment or impeachment -- this is the best we can hope for.

  19. Best option here is for the Republican leadership (McCarthy, McConnell and Pence) to seat down with President Trump and lay down the law. Tell him to go to Mara Lago and play golf. Turn over all responsibilities to Pence. Leave him President in name only for the next 13 days.

    He refuses then 25th Amendment him. Tell him to take two weeks off, get a mental examination and rest.

    1. Dude all Trump needs to do to quash the 25th is write a fucking letter to Pence. Trump can run out the clock with 13 days left, so this is just bloviating because you're scared Trump still has enough support for 2024.

  20. Here's a perverse piece that I haven't heard mentioned.

    What happens if they impeach Trump, or if he's 25thed out? Or if he resigns?

    Pence becomes President.

    What did Gerald Ford do a month after Richard Nixon resigned?

    Pardoned him.

    President Trump may or may not be able to pardon Citizen Trump. President Pence, on the other hand, can certainly pardon Citizen Trump.

    1. Pence looked so distraught yesterday that he might not pardon Trump.

    2. OTOH, that would work as a deal that Trump might take. He certainly wouldn't resign for the good of the country. (Excuse me while I laugh hysterically for 10 minutes.) But as a get-out-of-jail- free card? Yeah, he would go for it.

      Would that be worth it? I would say so. Same reason why murderous third-world thug dictators are given asylum in some county like France, so long as they agree never to go back to power. You are trading justice for avoiding further harm.

    3. Pence doesn't become President. There is an exchange of written letters that involves the President before congress ends up needing to debate the issue. Simply not enough time left the 25th.

      So this is just bloviating. Impeachment would be more likely.

  21. I think a basic problem with impeachment here is that precisely because it involves wrongful conduct, the accused is specifically entitled by the Constitution’s text to a trial, which means due process and a defense, the ability to call witnesses and argue, etc. Letting a president be impeached and removed by attainder, simply letting a Congress that has enough votes vote him out and call what it does a “trial,” would go against any reasonable meaning of the word “trial” in the Constituon’s text.

    I think if the president in an impeachment trial has two weeks worth of witnesses to present, he is entitled to present them. The Senate can limit the witnesses the House can present if itbwants. But I don’t think the Senate can drastically limit the evidence the defense presents.

    This means that if President Trump were impeached tomorrow and his trial begins the next day, he could simply run out the clock, with the trial still going when Biden takes office.

    And I don’t see any constitutionally legitimate way out of it.

    The 25th Amendment procedure, which carries no implication the President did anything wrong, seems the better course here.

    1. The Senate has the exclusive and unreviewable to decide what process it will use to try impeachments (as long as the senators are under oath, a two-thirds vote is required to convict, and the chief justice presides if the president is the one who has been impeached):

      The conclusion that the use of the word "try" in the first sentence of the Impeachment Trial Clause lacks sufficient precision to afford any judicially manageable standard of review of the Senate's actions is fortified by the existence of the three very specific requirements that the Constitution does impose on the Senate when trying impeachments: The Members must be under oath, a two-thirds vote is required to convict, and the Chief Justice presides when the President is tried. These limitations are quite precise, and their nature suggests that the Framers did not intend to impose additional limitations on the form of the Senate proceedings by the use of the word "try" in the first sentence.

      Nixon v. United States, 506 U.S. 224, 230 (1993).

      1. Stop thinking only as a lawyer. The process has to have the appearance of legitimacy. You can't remove the President with the same rushed procedure a municpality would use to decide a traffic ticket. Even if SCOTUS won't intervene.

        1. I was responding to the claim that President Trump could complain that his impeachment trial didn't afford him sufficient process. He can't.

          Since the impeachable conduct is all caught on video, I see little reason why the trial couldn't happen in a day or two.

    2. But does impeachment actually require "due process and a defense"? I think some of your assumptions are about norms in the few impeachments that have happened ... not requirements.

      The Constitution contains no such rules that I can discern. Could the Senate just take a vote and say "90/100 of us think he tried to incite a riot, he's out! Done."? What appeal route would then exist? The S.Ct. has made it clear it's a political process, not a criminal one; that the Senate gets to determine its own rules, not the high court. And if you have lost 90 Senatuhs ... I doubt the S.Ct. would second-guess that 1/2hr roll call vote.

      I mean, there's no way that will actually happen, but I do want to query the norms-vs-requirements assumptions here. I think that if the Senate wanted to go fast, and the Majority Leader played along, an impeachments could (in theory) go *very* fast.

      1. Suppose the Supreme Court simply declared that Aftican Americans aren’t persons and aren’t covered by the 13th and 14th Amendments. They could. Nothing could stop them. It’s not like any other body has any review power over them.

        Similiarly, if the President decides to shoot a few people on 5th Avenue for sport, the Senate could simply decide that their dear leader’s need for blood sport pleaure is its own justification and acquit. Nothing would stop them. So why wouldn’t it be a legitimate option for the Senate to take? Your argument seems to be that if you can get away with it, you can do it.

        At some point, the people who have the power to act without being overruled - here the Senate - have to think about what’s right to do, based on their own oath to the constitution, not just about what they can get away with.

        Under the American system of law, the word “trial” connotes a reasonable opportunity for the defendent to mount a robust offense, and some measure of due process. If you don’t do that, you don’t have a trial.

        Think about the consequences if whenever the opposing party gets a majority in the house and a 2/3 majority in the senate, they simply remove the President following a kangaroo impeachment precedure. If they can do that to the President, they could do it to the Vice President at the same time, guaranteeing the line of succession would make one of their party leaders the new President. No fuss. No muss. And no Supreme Court review. Would there be any legitimacy to such a manouevre?

  22. Why do you people keeping talking about this with 13 days left? If he's so unpopular then he's not going to win in 2024, right? Right?

    You are utterly terrified that NOBODY GIVES A SHIT that the Capitol was stormed. You are utterly terrified that half the country STILL does not accept the election...WE WERE SUPPOSED TO BE PAST THIS BY NOW.


    1. Very well stated. This is all an attempt to pretty up 'Orange Man Bad' by any means necessary. They are acting like psychological abuse victims. "Show us on the Doll, where the bad man touched you.".

  23. I have never been a Trumpist but it seems to me using the 25th amendment in this situation would amount to a coup d'etat.

    The amendment says the Vice President and the cabinet can replace a President when that "President is unable to discharge the powers and duties of his office" not when the President is unwilling to perform his duties or when the President is not doing what some people thing the President should do or even when the president may in the opinion of some be violating the law or his oath of office. The amendment repeats language in Article 22 Section 1 of the Constitution which originally did not spell out how a President's inability could be determined.

    It is not a substitute for Impeachment.

    The intention and history clearly indicate it is intended to operate in case of an infirmity, such as the case of Woodrow Wilson who suffered a stroke which left him paralyzed and many believe his wife became Acting President from October 2, 1919 until his term ended on March 4, 2021. She always maintained he made all the decisions and she merely acted as his Steward. He died on February 3, 1924. Wilson's Vice President refused to assume the duties of Acting President unless a resolution was passed by Congress.

    A similar situation could have developed with FDR but didn't.

    Imagine Lincoln, Kennedy or any of the other Presidents who died in Office had been incapacitated but not died.

    The 25th amendment was enacted to clean up the details of succession in a age when crises and emergencies could happen in minutes or hours not to solve political problems which will resolve themselves in a matter of days.

Please to post comments