Up until his very last minute in office (and beyond it), Donald Trump is making history in ways that his descendants will not like. In fifty years, instead of saying that a person’s name is Mud(d), we might be saying that his name is Trump.
Right now, there are three possibilities being discussed in D.C. and on op-ed pages. Each have some legal questions associated with it.
The first option — which seems dead in the water as the Cabinet and Vice-Coward Mike Pence seem to be reluctant to take responsibility for suspending Trump’s presidency is the Twenty-Fifth Amendment. Many constitutional amendments are simple establishing one basic rule. E.g. authorizing or repealing prohibition, giving women the right to vote). Others, like about half of the bill of rights, have multiple related but separate concepts (e.g. First Amendment covering freedom of speech, freedom of religion, and freedom of assembly). The Twenty-fifth Amendment is one of those multi-part amendments addressing several aspects of presidential succession.
The Twenty-fifth Amendment was passed after the Kennedy assassination. Counting the vacancy caused by that assassination, there had been sixteen times in U.S. history in which there was no vice-president — about half from the death of the president and about half from the death of the vice-president with one resignation of a vice-president who was not reelected. In other words, more than one-third of the vice-presidents did not complete their term in office. So one provision (which has now been implanted twice, both times related to the Nixon-Agnew scandals) created a mechanism to fill the vacancy in the office of vice-president. (Another provision made express what had been the practice — that if the office of president became vacant, the vice-president would succeed to the office for the remainder of the term.)
Besides the issue of vacancy, there had been, at least, two times in recent history when the president had serious health issues resulting in a temporary incapacity (during the Wilson and Eisenhower presidencies). So the Twenty-Fifth Amendment included two sections related to that issue. One provision, Section 3, involves the president self-invoking a temporary transfer of power to the vice-president. (Since the enactment of the Twenty-fifth Amendment, there have been three times that presidents have temporarily transferred powers to the vice-president in connection with surgical procedures. Once, Ronald Reagan did not invoke Section 3. The other two times, George W. Bush, expressly invoked Section 3.) Another provision, Section 4, applies when the president is unwilling to self-invoke the transfer of power.
Under Section 4, the vice-president and the majority of the cabinet can temporarily remove the president from office by notifying Congress that the president is unable to perform the duties of the office. There are several ambiguities in this section. Most significant is whether “acting” department heads count. Given that the process for nominating and confirming a new head for a cabinet department takes time, it is not unusual for one or more departments to have an acting head. It is unclear if such a person counts — either in calculating how many votes are needed to invoke Section 4 or as a vote to invoke Section 4 if that person signs off on invoking Section 4. An equal ambiguity is what it means to be unable to perform the duties of the office. The reports prepared by Congress suggest that the issue was a physical or mental disease that rendered the president legally incompetent. As such, it is not surprising that Pence and the cabinet are unwilling to read the Twenty-Fifth Amendment more broadly to cover the lack of a presidential temperament.
Like the Twenty-Fifth Amendment, the Fourteenth Amendment also contains multiple sections. At issue here is Section 3. As with the Twenty-fifth Amendment, there was a historical motivation for Section 3. Under the Constitution, all federal and state officials take an oath to support the Constitution. In almost every state that took part in the insurrection, the vote to rebel was taken by state legislators (who by definition had sworn that oath) and many federal officials resigned their federal offices to join in the rebellion. After the Civil War, the political establishment opted to return these rebels to office. So the Reconstruction Congress included a ban on these people serving in office in Section 3.
But Section 3 does not say much about how it should be implemented. As a general rule, the Constitution bars Congress from passing bills of attainder. Historically, a bill of attainder was a resolution passed by parliament finding individuals guilty of high crimes (typically treason) and imposing punishments on them without trial. Of course, the prohibition on bills of attainder are in the main text; so, potentially, a resolution invoking Section 3 would be an exception to that restriction. Of course, at the time of the drafting of Section 3, there was no serious question about who was covered by the provision. There were clear records of who had held office prior to 1861 and thus taken an oath of loyalty to the United States, and people who participated in the insurrection did not hide that fact with lots of public records confirming that fact. Because there was no real dispute, there were multiple mechanisms for enforcing the Fourteenth Amendment at the federal level. For example, both houses are authorized to determine the qualifications of members-elect. Any person barred by Section 3 would simply not be seated (which the Reconstruction Congress was already doing). And, if any such person received electoral votes for President, that would be textbook example of a vote not regularly given which Congress could reject. And to the extent necessary, Section 5 authorized Congress to pass appropriate laws if such people were being elected to state and local offices to permit federal officials to take acts to remove such people from office.
In 1867 and 1868, there were no factual or legal disputes about whom was subject to Section 3. And so enforcement of Section 3 was relatively easy. Since then, the only time that Congress has invoked Section 3 was in 1919 to preclude the seating of a Socialist who had been elected to the House from Wisconsin. That member-elect had been convicted of espionage. After the conviction was overturned, when that same person was elected for additional terms, he was seated.
Today, there is no rebel government with public records of whom participated. And, while there is certainly a case that could be made that Donald J. Trump did encourage insurrection, no court has yet found him guilty of encouraging an insurrection. As Section 3 is silent on who gets to determine if a person has engaged in insurrection, it is unclear that Congress could preemptively bar Trump from running in 2024 simply by a joint resolution finding that he violated Section 3. (I think the issue is different about whether the Republican Party could adopt a rule barring him from winning any delegates to any future Republican National Convention — which would be protected by the First Amendment. And arguably, if an ineligible person received electoral votes, as discussed above, Congress could reject those votes. )
And that leaves impeachment. There have not been many cases of impeachment — twenty total — at the federal level. And there have only been three cases — two judges and one cabinet officer — in which the impeached official resigned between impeachment and trial. In one case, the Senate acquitted the official. In the other two, the impeachment proceedings were dismissed with the agreement of the House after the judge resigned. But the little history does suggest that impeachment can proceed even after an individual leaves office. And, at the time of the framing, there was an impeachment trial in the United Kingdom against a former colonial governor.
Assuming that the impeachment trial can proceed against a former official, there are two parts to an impeachment verdict. Part one is the finding of guilt. The finding of guilt has to be by a two-thirds vote in the Senate. Part two is the punishment if there is a finding of guilt. And the Constitution provides two potential punishments — removal from office and disqualification from holding office in the future. It is possible to impose both punishments on a defendant. But, in the case of Donald Trump, the only available punishment would be to disqualify him from holding office in the future. There is no express requirement of a two-thirds vote on the issue of punishment.
If Trump were still in office, a vote to remove him would have consequences for certain benefits like his pension. But as the statute governing those benefits refers to removal before the end of the term, it is unclear if an impeachment conviction would impact those benefits. Of course, Congress could re-write those statutes, but there would be a significant dispute about whether such a change would be an unconstitutional ex post facto law. (In plain English, an ex post facto law is one which imposes an additional penalty for an offense which was committed prior to the effective date of the law.)
As the ten Republicans who crossed party lines to vote in favor of impeachment (the most in history) recognized, Donald Trump’s conduct is so far over the line that there has to be a real consequence. A resolution of censure is the equivalent of a slap on the wrist, especially to Donald Trump. And the article of impeachment is based on Donald Trump’s public comments and speeches other than his phone calls to the Georgia Secretary of State so claims that the House rushed to judgment by not holding a lengthy hearing simply ignore that the evidence is already a matter of public record.
Besides the issue of whether you can proceed with a Senate trial after a term has expired, there are some procedural questions. The Constitution requires the Chief Justice to preside over the trial of a president, but it is unclear if that provision also applies to the trial of an ex-president for conduct while in office. If the Chief Justice does not preside over an impeachment trial, the presiding officer of the Senate presides over the trial. The rules of procedure for impeachment trial do permit the Senate to adjourn the trial and resume the conduct of ordinary Senate business. Thus, for example, the Senate could hold trial proceedings from noon to 5 p.m. and take up votes and debates on legislation and nominations at 5 p.m. (or in the morning prior to the start of that day’s trial proceedings).
Of course, because a two-thirds vote is necessary to convict, the outcome of the impeachment trial will depend on the willingness of Senate Republicans to honor their oaths and vote based on the law and evidence. At this point, there are probably five or six Republican Senators who are likely to do so and vote to convict. For the additional eleven votes for conviction, it is going to come down to whether Senator Turtle believes that it is in the best interest of the Republican Party to bar Donald Trump from running for office again. If Senator McConnell decides that the only hope for the future of the Republican Party is to wash its hands of Donald Trump, then he can probably bring another twenty or so Senators with him. If on the other hand, Senator McConnell decides that voting to convict Donald Trump would cost the Republican Party a good chunk of its base, then it will be almost impossible to get the 67 votes needed to convict. Of course, if you read the Federalist Papers, the framers understood that it would be very hard to impeach a president, and that politics would probably prevail over the law in any impeachment proceeding.
In the best of all worlds, the Republicans will stand up for the values that they claim to represent and vote to convict. In the short term, such a “courageous” stance will cause some division in the Republican ranks. And such divisions may impact what can be accomplished over the next two years in both good and bad ways. But if Republicans decide that loyalty to Trumpism is the defining feature of their party, the profile in cowardice will signal that almost nothing will be possible outside of reconciliation over the next two years. If that is the case, the Democratic agenda will probably depend on the results of redistricting and the 2022 election.
