We want to preface this post by informing our readers what this week’s blog is not about:
• Donald Trump holding the distinction of being the first president in American history to be impeached twice.
• Whether it behooved Congress to pursue this path only days before Trump’s term ends.
• When and if a Senate impeachment trial should proceed.
• Whether VP Mike Pence could have invoked the 25th Amendment to remove Trump.
• If Congress can invoke the 14th Amendment to remove Trump.
These interrelated topics have been debated ad nauseum by both the liberal and conservative press since the happenings of January 6, when a mob stormed the Capitol building.
Many Americans are familiar with the term “impeachment.” Few people are aware of the 25th and 14th Amendments, and even less so the granularities associated with them. Nonetheless, these terms, along with corresponding hypotheticals, are being carelessly thrown around as if they are almost interchangeable.
Time for a civics lesson: Impeachment, the 25th Amendment, the 14th Amendment, and the nuances around what exactly each means not only for Donald Trump but any sitting president in the future.
Step 1: The House Of Representatives proposes articles of impeachment.
Step 2: The House votes.
Step 3: If a simple majority votes in favor, the president is then “impeached.”
Step 4: The Speaker of the House sends articles of impeachment to the Senate.
Step 5: The Senate holds a trial.
Step 6: If a two-thirds majority vote to convict, the president is removed from office.
Key Questions & Answers:
Q: Can a president be impeached, and a trial held after his term ends?
A: Unclear; a legal grey area. The Constitution does not say when impeachment and subsequent trial must be held. Thus, it appears legal that a president could be impeached and tried after his term ends, for crimes committed while still in office. The countervailing argument is simple: per the Constitution, private citizens cannot be impeached.
Q: If a president is impeached, does this mean he or she can never run for office again?
A: Contrary to what many people think, the simple answer is no. If the Senate votes to convict, to preclude the president from ever running for office in the future, the Senate must hold an additional vote specifically pertaining to this matter. As opposed to a trial where a two-thirds majority is needed to convict, a simple majority of Senators is all that is needed to disqualify a president “to hold and enjoy any Office of Honor, Trust or Profit under the United States” in the future. Note: To date, only judges have been banned for life under this statute. Constitutional lawyers disagree as to whether the office of the president falls under this legal umbrella.
Q: Can the Senate hold a vote to bar a president from future office (which only requires a simple majority) prior to having an impeachment trial (which requires a two-thirds majority)?
Q: If a president is impeached, does he or she forfeit their lifetime pension of $200,000 per annum and other guaranteed benefits?
A: No. At a minimum, for a president to lose their perks upon leaving office, they must be impeached, found guilty, and removed from office. Even then, some legal scholars cite ambiguity in the law about this matter.
Section 3 of the 25th Amendment allows a sitting president to temporarily relinquish power by declaring in writing that they are "unable to discharge the powers and duties of their office." Typically, section 3 is invoked voluntarily by a sitting president undergoing surgery when general anesthesia is administered. Once recovered, the president resumes by declaring in writing that he or she is now fit to “discharge the powers and duties of their office.”
Q: Has Section 3 of the 25th Amendment ever been invoked?
A: Yes, three times.
Q: What is section 4 of the 25th Amendment?
A: Section 4 of the 25th Amendment allows the Vice President to invoke the 25th Amendment and assume the role as commander and chief if he decides, in conjunction with the majority of his cabinet, that “the president is unable to discharge the powers and duties of his office.”
Q: Has Section 4 of the 25th Amendment ever been invoked?
Q: What happens if Section 4 of the 25th Amendment is invoked?
A: Most probably, a sitting president will challenge this by declaring in writing, per their legal right, that they plan to reassume power. If this transpires, the Vice President and his cabinet would once again declare in writing that the president is unable to do his job. Then, the House and Senate would hold a vote within 21 days. Unless a two-thirds majority in both houses is achieved, the sitting president will retake power.
Section 3 of the 14th Amendment prohibits elected officials that have “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies there of” from holding federal office in the future.
After the Civil War, Section 3 of the 14th Amendment was used as a mechanism to bar Confederates from being elected to office. Aside from American history buffs and constitutional legal scholars, until last week, it has been all but forgotten.
Q: Can a sitting president be removed from office by invoking the 14th Amendment?
A: Probably not. There is no “removal mechanism” in this Amendment.
Q: Can a sitting president be deemed ineligible to hold future office by invoking the 14th Amendment?
A: Possibly. The constitutionality of such action would ultimately be decided by the Supreme Court.