Will Trump Be Removed for Inciting Wednesday’s Riot at the Capitol?
BU legal scholar Jack Beermann on calls to invoke the 25th Amendment, launch impeachment hearings
“President Trump revealed that he is not mentally sound and is unable to process and accept the results of the 2020 election. [His] willingness to invite violence and social unrest to overturn the election results by force clearly meet this standard.”
House Judiciary Committee Democrats penned those words to Vice President Mike Pence?Wednesday night, urging him and Donald Trump’s cabinet to sideline the president—making Pence acting president—under the Constitution’s 25th Amendment. They, along with Senate Democratic Leader Charles Schumer and House Speaker Nancy Pelosi, Boston Mayor Martin Walsh, and one GOP congressman called for Trump’s removal after he invited thousands of supporters to Washington, D.C., on Wednesday and inflamed them with falsehoods about having won last month’s election. The mob violently stormed the Capitol and delayed the Senate’s certifying of President-elect Joe Biden’s electoral victory.
The 25th Amendment was adopted in 1967 to clarify presidential succession, four years after President Kennedy’s assassination. Both Ronald Reagan and George W. Bush were temporarily replaced as president under the 25th when they received medical care; no president has ever been permanently removed under the amendment.
Alternatively, some media observers, including conservatives, urged Trump’s impeachment.?
What would happen if the cabinet invoked the 25th Amendment? And with less than two weeks left in Trump’s term, is that or impeachment even a viable option? BU Today asked Jack Beermann, a professor of law and Harry Elwood Warren Scholar at BU’s School of Law.
With Jack Beermann
BU Today: How does the 25th Amendment work?
Jack Beermann: The 25th Amendment is a provision where the vice president and a majority of the principal officers of the cabinet decide that the president is “unable to discharge the powers and duties of his office.” They transmit that to the president pro tem of the Senate and the speaker of the House. Then the vice president becomes acting president.
BU Today: Others have called for impeachment. Is that possible given the time frame?
Jack Beermann: You couldn’t do an impeachment in the next 13 days. The [Republican-led] Senate would not vote in favor of it, so it would be another empty gesture. There’s not enough time for an impeachment. Theoretically, in an emergency, Congress can do whatever it wants; there are no constitutional rules about an impeachment. But normally they give lawyers for the president an opportunity to prepare, and they have to draw up articles of impeachment. It’s not like going to traffic court. It would be shocking if they could even get an impeachment resolution done in the House before the end of his term.
BU Today: Could Trump run for president again if impeached?
Jack Beermann: It has to be in the penalty, when they convict him, that he also is disqualified [from running]. And there’s a question whether that’s constitutional. But [impeachment] is not going to happen.
BU Today: If he were to be removed via the 25th Amendment, how quickly could that take place?
Jack Beermann: They could do it in five minutes. I expected that if it were going to happen, it was going to happen immediately after the [Electoral College] votes were finished for Biden [following Wednesday’s riot].?
[Under the Amendment], the way a president gets reinstated is, he himself declares to the Senate president pro tem, “I am now able to discharge the office.” He gets his job back unless, within four days, the majority of the cabinet and the vice president repeat their declaration. Then it says, “Thereupon, Congress shall decide the issue,” assembling within 48 hours. It takes a two-thirds vote of both houses; otherwise, the president gets it back.
BU Today: What’s the political likelihood this will happen?
Jack Beermann: Zero. I would say less than zero. They’re going to wait out the 13 days, and if he tries to do anything insane, the cabinet will countermand him. The things he can do that would be terrible would be military, and the military leaders aren’t going to go along.
BU Today: Richard Nixon’s defense secretary, James Schlesinger, told the brass, if he orders any military strikes, clear it with me first, during Watergate, when [Nixon] was said to be drinking heavily.
Jack Beermann: I can imagine that going on right now. There are safeguards there. He can’t issue an order to extinguish some species or something like that.