Since his inauguration in January, many opponents of Donald Trump have called for his removal from office. The first troubling aspect of his administration has been what is known as the Emoluments Clause in the Constitution. This clause is set out in Article 1, Section 9, Clause 8 and reads as follows:
“No Title of Nobility shall be granted by the United States. And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
From Day 1 of his presidency, Trump’s various real estate holdings, both here and abroad have troubled constitutional scholars. Nearly every elected federal officeholder before Trump have placed their financial holdings into what is known as a “blind trust” where the trustee manages their finances without any interaction whatsoever. Trump’s idea of meeting this requirement was to turn over management of his real estate holdings to his sons to run for him.
So he continues to visit his resort at Mar-A-Lago, where he doubled the membership fee from $100,000 to $200,000 after his election as president, and holds fundraisers at the Trump International Hotel in Washington, D.C., a property that he leases from us, the U.S. taxpayers.
To put all of this in some kind of perspective, Jimmy Carter was forced to sell his gosh-darned peanut farm.
So why, might you ask, isn’t Trump impeached for this obvious violation of the U.S. Constitution he swore to uphold and defend. Let’s examine the three ways that a President can be removed from office.
This process is covered in Article II, Section 4 of the U.S. Constitution.
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
While impeachment works much like an indictment by a Grand Jury, and only requires a majority vote in the House of Representatives, the Conviction party is also the rough equivalent of a trial by jury and requires a 2/3 majority vote. If the person being impeached is the President, the Chief Justice of the Supreme Court presides over the Senate proceedings.
But a critical distinction needs to be made. Impeachment and conviction are not legal actions – they are political ones. While “treason” and “bribery” are spelled out as impeachable offenses, “the other high Crimes and Misdemeanors” leaves a whole lot of wiggle room.
Only two sitting Presidents have been impeached and neither was convicted by the Senate.
The 25th Amendment, Article 4
The 25th Amendment to the U.S. Constitution was ratified following the assassination of President John F. Kennedy, per law.cornell.edu, to “provide the procedures for replacing the president or vice president in the event of death, removal, resignation, or incapacitation. The Watergate scandal of the 1970s saw the application of these procedures when Gerald Ford replaced Spiro Agnew as vice president, then when he replaced Richard Nixon as president, and then when Nelson Rockefeller filled the resulting vacancy to become the vice president.”
Article 4 of the amendment is somewhat lengthy, but it basically boils down to this: if the Vice President and a majority of the Cabinet or Congress determines that the President is no longer able to fulfill the duties of the presidency, the Vice President becomes the Acting President.
There have been historical precedents for a president being incapacitated physically, e.g., Woodrow Wilson, when his wife Edith, along with his doctor, hid his illness from the Cabinet and became de facto President. There was also concern during the 1950s due to Eisenhower’s heart condition, and what would happen if he had an attack that did not kill him, but made him unable to continue. Would Nixon step in? There was nothing in place.
It is doubtful that the writers of this amendment envisioned a scenario where a president might be incapacitated by mental disorder. And that presents a real problem with the calls for enacting the 25th Amendment now. Because the Article 4 states:
“Thereafter (the Vice President becoming Acting President) when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office …….”
So if Trump is removed via the 25th Amendment there is nothing to prevent him from writing the very next day to say he is no longer incapacitated. And this is where it gets really dicey. Once again the Vice President and a majority of the Cabinet or the Congress have to determine he is not capable. The next step, and the only way to stop him, is for Congress to assemble within 48 hours and determine, within 21 days after receipt of the president’s letter, by a two-thirds vote of both Houses that the President is no longer able to discharge the powers and duties of his office.
This is an even greater number than required to impeach and convict, and remember that no president has ever had two thirds of the Senate vote to convict him. Bear in mind also that this part of the 25th Amendment has never been invoked, and there would no doubt be major legal challenges that could only be resolved by the Supreme Court.
In the meantime, our country would be in a state of chaos as to who is in charge. Remember when Reagan was shot and General Alexander Haig told everyone not to worry because he was in charge. That could be child’s play compared to invoking the 25th Amendment.
The ONLY time a sitting president was removed from office was when Richard Nixon resigned in 1974 when facing certain impeachment by the House over the Watergate scandal. The Articles of Impeachment had been written, but leaders of the Republican Party were able to convince Nixon that he would be impeached, and for the good of the nation, he should resign. Nixon, for all his flaws, was a political realist. He took their advice.
Unfortunately for the United States, Donald Trump is the president who has the least grasp of political reality in our history. The only hope that he would resign would be if the entire Republican leadership, along with the Vice President and his Cabinet, convince him that if he does not, he will face certain impeachment and/or removal from office via the 25th Amendment.
If the routes of impeachment or the 25th Amendment are followed, his die-hard supporters, including Fox News, will claim a “coup” against him, regardless of the fact that both are Constitutional measures.
Trump might relish a fight in Congress over impeachment. A lot will depend, however, on the outcome of the Mueller investigation. But is also a proud man, a vain man. If he could be convinced that the 25th Amendment would definitely be used to remove him from office on the grounds of “mental incapacity” then he might find resignation a more palatable choice. He could claim whatever reasons he wishes – health, more time with his family, he achieved his goals, to resign.
The leadership in Congress of both parties have two powerful tools at hand to save the country from Donald Trump. If persuasion doesn’t work, then threats might. In any case, for the good of our country, Trump needs to go. As soon as possible. If he choses to resign, then he might retain some degree of respectability and save the nation from a bloody, internecine political war.
But Donald Trump will only go if he can be convinced it is for the good of Donald Trump. In the meantime, God protect us all.