Memories of the footage of the insurrection at the U.S. Capitol, on January 6, 2021, will be forever etched in the minds of the citizenry. No American since the War of 1812 has seen an assault on our Temple of Democracy. This siege--a failed coup--was incited by President Donald Trump who, in a speech on the elipse, to thousands of his supporters at rally that he organized, told his faithful, yet again, that the 2020 election had been rigged, that victory had been stolen from him, and that they had to “fight like hell” to take their country back.
The violence at the Capitol, which left five dead, and resulted in extensive damage to the chambers of the House and the Senate, as well as members’ offices, aimed to halt a solemn congressional duty, enumerated in the Constitution: to count the electoral votes and, finally, certify the election results. The insurrection did delay the proceedings, but did not prevent their successful conclusion.
In the immediate aftermath of the attack on the Capitol, members of Congress were left with another serious responsibility, that of deciding how to remove President Trump from office. House Speaker, Nancy Pelosi (D-CA), told the nation that Trump represented “a clear and present danger” to the United States. She said he was no longer “fit” to hold the Office of the Presidency, and that he needed to be removed. The question, at that point, involved the means of Trump’s removal from office. There were options, indeed, constitutional means, for achieving that wish.
Speaker Pelosi stated that President Trump should resign the office that he had held since the election of 2016. Trump might have resigned, as President Richard Nixon had, in August of 1974, after Republican leaders told him that he would, indeed, be impeached by the House and convicted and removed by the Senate. The argument brought by leading conservatives represented an appeal to Nixon to “do the right thing,” and spare the nation the agony of an impeachment process against a sitting president for the first time since 1868, when President Andrew Johnson was impeached. Nixon agreed and, after some two years of the Watergate investigation, the Nixon Presidency came to an end. As his successor, Gerald Ford said, in explaining his decision to pardon Nixon in September of 1974, “our long national nightmare is over.”
Although Donald Trump has often spoken admiringly of Nixon, whom he viewed as a mentor of sorts, he was unwilling to relinquish the reins of power, and thus refused the invitation to resign. That left two constitutional mechanisms for removing Trump from office: invocation of the 25th Amendment or resort to impeachment. If nothing else, this constitutional crisis was providing Americans with a civics lesson involving the exercise of some of the most challenging powers in our constitutional order.
Speaker Pelosi called on Vice-President Mike Pence to convene a meeting of the Cabinet and to invoke the 25th Amendment. She added that if he did not act to remove Trump through this amendment, that the House would proceed to impeachment. Vice President Pence refused to invoke this power, but for many Americans, it was their first look at this means of removing a sitting president.
The 25th Amendment was ratified in 1967. It represented a long, bi-partisan effort, led, principally, by Sen. Birch Bayh (D-IN), to protect the country from a crisis of succession in the event that the president was unable to discharge the duties of his office, possibly because of a medical issue such as a stroke or heart attack or other serious events. Under the terms of the amendment, the vice-president, and a majority of the cabinet, could determine that the president was unable to perform the duties and responsibilities of the office and, therefore, he should be removed from power. The president might disagree with that conclusion, and could challenge it, in writing, within four days. At that point of contention, Congress would have up to 21 days to determine whether the president should remain in office.
The checks and balances in this amendment—The Bayh Amendment—have been widely praised, although some have wondered whether it might be used, that is, abused, by opponents of the president to dislodge him from office. We recognize that every constitutional power is subject to abuse, which is why our constitutional system builds in numerous checks and balances to guard against arbitrary acts that might harm the nation.
Vice-President Trump decided that he would not invoke the 25th Amendment, even though many throughout the nation suggested that Trump was unable to perform the duties of the office because he was, to some degree, “delusional.” That argument was grounded in his refusal, since the election, to acknowledge President-Elect Biden’s victory, and his continued rants that denied the legitimacy of the election and, in fact, declared without evidence, that it was rigged and riddled with fraud.
Trump continued to maintain this position, despite some court rulings in roughly 60 cases before both state and federal judges, including numerous Trump appointees, across the country, who consistently asked for evidence from Trump attorneys, but never received it. Of course, there is no evidence of widespread voter fraud that would have changed the electoral outcome. And, it must be noted, attorneys for Trump were unwilling to assert in a court of law that they possessed evidence to support the president’s claims of fraud, because lying to a court can lead to discipline by the bar association.
The 25th Amendment might well have moved quickly, much more quickly than the impeachment process, but Vice-President Pence, likely for considerations of his political future, reused to invoke it. As a result, Speaker Pelosi, fellow Democrats in the House, and some 10 Republicans voted, as a bi-partisan majority, to impeach President Trump for “incitement to insurrection,” which the House rightly viewed as a High Crime and Misdemeanor.
The next step in the impeachment process is a trial in the Senate, which may begin on January 20, the day that Joe Biden takes the oath of office and becomes the 46th President of the United States. Next week, we will take a look at what constitutes an impeachable offense and what the Senate trial may portend for Trump and the nation.
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David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.