Cato: Impeachment, the 25th Amendment and Trump’s Final Days

 We started the week with an impeachment debate that looked like a rewarmed version of the one we had last year. “Read the transcript!”: when President Donald Trump got on the phone Saturday to lean on Georgia election officials, was it another “perfect call” or a second, sordid shakedown attempt?

By yesterday afternoon we were in entirely new territory: a violent mob storming and trashing the Capitol, four dead, guns and explosives seized, Congress evacuated, Vice President Mike Pence fleeing a mob inspired by the president’s tweets. “We will never concede,” Trump fumed at the pre‐​riot rally, “you don’t concede when there’s theft involved. Our country has had enough. We’re not going to take it any more.… if you don’t fight like hell, you’re not going to have a country any more.” Howard Beale only asked people to yell out of their windows, and he didn’t have nuclear weapons.

As of Wednesday night there were at least 32 House Democrats publicly calling for a second impeachment. Though both houses are supposedly done working until after inauguration, an article of impeachment has already been drafted for circulation. And today, the incoming Senate Majority Leader called on Pence and the Cabinet to trigger the 25th Amendment and remove Trump from power.

Can either of those things be done? Both? How might the Constitution’s presidential defenestration provisions work here? Let’s take a look.

First, impeachment: the article of impeachment being circulated now charges Trump with making “statements that encouraged—and foreseeably resulted in—imminent lawless action at the Capitol.” Is incitement to riot an impeachable offense? Yes: it’s not even a hard question.

“High Crimes and Misdemeanors” is a broad term designed to reach serious misconduct that demonstrates unfitness for high office: not just criminality or abuse of official power but, as the Nixon‐​era House Judiciary Committee report on “Constitutional Grounds for Presidential Impeachment” put it, conduct “grossly incompatible with the proper function and purpose of the office.”

In fact, the first impeachment case to result in conviction and removal from office, Judge John Pickering (1803) involved a federal judge whose main offense was showing up to work drunk and behaving in a “profane and indecent manner … degrading to the honor of the United States.” The 10th article of impeachment against President Andrew Johnson, approved by the House in 1868, charged the president with “a high misdemeanor in office” based on a series of “intemperate, inflammatory, and scandalous harangues” he’d delivered in an 1866 speaking tour. And Johnson didn’t incite a riot.

Impeachment is not a criminal process. You don’t have to prove all the elements of a federal criminal statute or pass the Supreme Court’s Brandenburg test for incitement. And, despite what the president’s lawyers argued the last time around, nothing in the Constitution requires extensive hearings. Even at this late date, the House could mount a fast‐​track impeachment.

Could a successful impeachment bar Trump from ever holding the presidency again? Article I, section 3 of the Constitution provides for an additional punishment beyond removal: “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” It’s only been invoked three times, all against federal judges.

There’s a question, however, of whether the presidency is an “Office of honor, Trust or Profit under the United States.” The legal scholar Seth Barrett Tillman has argued that “Office… under the United States” is a term of art like “Office under the Crown” in British law: it covers appointed officials, not elected ones. In that reading, Donald Trump could be barred from serving as a federal judge, or Secretary of State—but not a second shot at the presidency.

Read more at https://www.cato.org/blog/impeachment-25th-amendment-trumps-final-days