Attempts to Remove President Trump from Office Constitutionally

Many in Congress intend to remove President Trump from office. Find below some facts and some related Constitutional text.

Facts

On Wednesday, January 6, 2021, there was a violent attempt to overturn the results of the 2020 presidential election. Following a speech by President Trump, a large crowd gathered at the Capitol Building, menaced and injured officers of the Capitol Police, forcibly entered the Capitol chambers, menaced Members of Congress and the Vice President, and tried to prevent the Members from executing their official duty to record and certify the Electoral College results for the 2020 Presidential election. The gathering, forcible entry, and many acts of insurrection were broadcast over live television or recorded on phone cameras and later made public.

There have been over 60 court challenges to the state elections for president and the Electoral College results. Those challenges failed to change the results of the election as reported by the officers of the various state election administrations. I believe pro-Trump litigants lost all but one or two cases. They lacked credible evidence capable of affecting the results.

Even acknowledging that failure to find X is different from confirming the absence of X, it is a fact that Joseph Biden won the popular vote, won the electoral contest of electors, and won the court challenges to confirm him as president. In sports terms, the call on the field is that Joe Biden scored a touchdown, his opponent threw the challenge flag, but the replay officials let the call on the field stand. Touchdown Joe Biden.

The assault on the Capitol was a violent attempt to overturn the election of Joe Biden. As to violent intent, some people built a gallows and chanted ‘Hang Mike Pence,’ the Vice President of the United States whose duties include presiding over the certification of the Electoral College votes of each state. As to motive, some people held ‘Stop the Steal’ signs, referring to the allegation that the Electoral College results were somehow fraudulent. As to violent result, if anyone did not see it live, video recordings of the mayhem are easily accessible from credible sources.

Some other relevant facts are still uncertain. Who is responsible for what? To what extent, if any, were the acts on January 6, 2021 premeditated? Among the crowd, were there people who intended to merely exercise their rights to free assembly and to petition for grievances, but who were present during the violent actions of others? To what extent, if any, did people in positions of public trust aid and abet the acts on January 6, 2021? To what extent, if any, did public officials arrange security preparations in ways that enabled the insurrection? To what extent, if any, did public officials delay or obstruct aid to the Capitol Police once the insurrection started?

My standard comment on second-guessing applies. There was more than one way for an insurrection. Officials undertook preparations without the benefit of hindsight. Example – reportedly the Mayor and Police Chief of Washington, DC sent a letter to the army (controls DC National guard) for help, but requesting that guard personnel be unarmed and kept away from the Capitol building. In hindsight, this appears like a mistake.

However, just as there could be intelligence warning of pro-Trump efforts to instigate crowds at the Capitol, there could be intelligence warning of pro-Trump efforts to direct the chain of command for federal troops. For example, one credible potential strategy would be for pro-Trump agents to use a crowd to cause violence at the capitol, send in federal troops, and then have the army declare martial law. Even if we do not doubt the loyalty of the guard, the mayor’s request to keep the Guard away from the capitol might not have been unreasonable with the facts revealed so far.

Further investigation is needed and will occur.

Constitutional Methods of Removing President Trump

Investigation takes time, and many Members of Congress want President Trump removed now. Members of Congress are considering various alternatives to remove President Trump. One method would be for the House of Representatives to impeach the president and the Senate to convict. This method would also bar the president from holding public office in the future. Some argue that under the 25th Amendment, a majority of the cabinet along with Vice President Pence can remove the president for incapacity, although some others believe that the 25th can only be used if a president cannot function physically. Some argue that under the 14th Amendment, the president cannot continue to serve because he has violated his oath to protect the Constitution. Some others dispute the scope of the 14th Amendment.

Here is the Constitutional text https://www.archives.gov/founding-docs/constitution that addresses impeachment, presidential incapacity, and violation of the oath to the Constitution. For additional context, I recommend that readers see The Constitution Annotated by the Library of Congress https://constitution.congress.gov/ and commentary by The National Constitution Center. https://constitutioncenter.org/ (Note that the Archives preserves some spelling that today would be considered incorrect.)

Article I, Section 3
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I, Section 3
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article II, Section 2
The President shall be… …and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Article II, Section 4
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.

Article III, Section 3
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Amendment XIV, Section 3
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Amendment XXV, Section 4
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.

Thereafter, 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 unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

https://www.archives.gov/founding-docs/constitution-transcript

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