Impeachment or the 25th Amendment? How Trump could be removed from office under the US Constitution
As Washington becomes increasingly engulfed by the spiralling crises in Donald Trump’s presidency and it is compared to the dark days of Watergate, even Republican voices have been asking how the commander-in-chief might be replaced.
Six decades ago, Dwight Eisenhower’s various illnesses stimulated a serious debate in Congress over this question, but it was not until the 1963 assassination of his successor John F Kennedy that Congress approved the 25th Amendment to the US Constitution, which provided a set of procedures for replacing a president in the event of death, removal (permanently or temporarily), resignation, or incapacity.
A significant constitutional gap was plugged. Although Article II, section one of the US Constitution discusses the issue of presidential succession, it did not spell out how a vice-president would assume the presidency if an incumbent died, resigned or was unable to perform the office’s duty. When Kennedy died, the new president, Lyndon Johnson, had known health issues; the next two people in line for the presidency were 71-year-old House speaker, John McCormack, and the 86-year-old Senate president pro tempore, Carl Hayden.
Ultimately ratified by a majority of the states in 1967, the 25th Amendment’s procedures were first invoked in 1973, when Richard Nixon’s vice-president, Spiro Agnew, resigned after pleading no contest to a charge of federal income tax evasion in exchange for the dropping of political corruption charges. The amendment was triggered again less than a year later during the Watergate affair, after the Judiciary Committee of the House of Representatives approved articles of impeachment against Nixon for obstruction of justice, abuse of power, and contempt of Congress.
Nixon resigned, and his new vice-president, Gerald Ford, was sworn in as the 38th president under section one of the amendment; for his new vice-president he nominated Nelson Rockefeller, whom both congressional chambers confirmed by simple majorities. Thus the nation’s two highest offices were filled without a popular vote.
The hard way
The 25th Amendment also gives a president a way to leave office voluntarily. Its section three stipulates that the incumbent can make a written declaration to the president pro tempore of the Senate and the speaker of the House that: “he [sic] is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the vice-president as acting president.” But as far as we know, Trump doesn’t have any incapacitating health issues, and it seems safe to assume he won’t voluntarily resign. So what about impeachment?
For Trump to be removed from office pursuant to Article II, section four of the constitution, he would need to be impeached and found guilty of “treason, bribery, or other high crimes and misdemeanors”. And now the US Department of Justice has appointed the highly regarded and greatly experienced Robert Mueller as special counsel with broad authority to investigate “any links and/or co-ordination between the Russian government and individuals associated with the campaign of President Donald Trump”, as well as other matters that “may arise directly from the investigation”, impeachment must be considered a possibility.
Members of Congress and outside commentators have increasingly entertained the idea that Trump and/or his aides might have obstructed justice while the president has been in office: Trump himself lately admitted that he sacked FBI Director James Comey because he declined to halt or slow down the FBI’s investigation into his and former National Security Adviser Michael Flynn’s possible contacts with the Russian government. Depending on Mueller’s findings, criminal charges may be brought against Trump that the Congress might subsequently regard as impeachable.
But once impeachment proceedings were underway, and particularly if Trump were to refuse to resign, the House Judiciary Committee could extend its ambit to examine Trump’s possible conflicts of interest, attempts to intimidate judges, and violations of the Constitution’s emoluments clause. Should members of Congress begin subpoenaing business records to explore those issues, given the president’s previous reluctance to disclose records, Trump might decide the game is up and resign.
It’s important to bear in mind that impeachment isn’t purely a legal process, and it doesn’t require a president to violate the criminal law; it is inevitably a highly political and sometimes partisan process, as Bill Clinton discovered during the Monica Lewinsky scandal. The House of Representatives alone decides what it regards as impeachable offences; Clinton, a Democrat, was impeached in 1998 by a Republican House on charges of perjury and obstruction of justices, and two months later the Senate acquitted him of those charges.
If Congress regarded Trump as a danger to the country, the House could use the impeachment process to remove him. With Republicans in control of Congress (at least until after the 2018 elections) as well as the White House, whether or not impeachment is invoked will depend then on opinion within the Republican Conference in the House, as well as a two-thirds majority of the Senate. But if Republicans do not act, and their party loses its majorities next year, it will be House and Senate Democrats who decide whether or not there is sufficient evidence to impeach Trump.
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 section was meant for a situation in which the president is disabled physically or mentally, as happened to Woodrow Wilson when he suffered a stroke in late 1919. What it was not meant for was to help remove a president simply too incompetent and irresponsible to be trusted to carry out his constitutional duties and responsibilities without doing further damage to the US’s democratic institutions and its national security.
Leaving aside the question of whether a vice-president and cabinet secretaries would collectively move against an incumbent president who wasn’t severely incapacitated, there’s another problem to consider. Were the 25th Amendment activated in this way, it would surely open the possibility of political coups, thereby undermining the presidency’s legitimacy and the premise that officeholders are chosen by voters.
If that became the norm, Trump’s successor – as well as future incumbents – could hardly expect the legitimacy their predecessors enjoyed. And Vladimir Putin, for one, would be laughing.