Congressional Democrats vowed over the weekend to plow ahead with impeachment proceedings against President Donald Trump after last week’s siege of the Capitol, while several Republican senators voiced support for removing Trump from office. But political and legal experts at Northeastern question whether the options for removing Trump are feasible in the short time left in his term.
Former Massachusetts Gov. Michael Dukakis, the Democratic nominee for president in 1988, said he doubts impeachment is likely, given the narrow majorities in the House and Senate.
“When you’ve got a divided Congress and some strong feelings about what’s going on, you’re not likely to get any action,” Dukakis, a distinguished professor emeritus of political science at Northeastern, said late last week. “I think impeachment is really very unlikely.”
Some have argued that impeachment could create a path toward permanently barring Trump from holding another federal position. But Jeremy Paul, former dean of the Northeastern School of Law, says it’s unclear whether elected offices would fall into that category.
“There is debate about whether the ban on office includes elected office,” he says.
“There is a lot of confusion about this everywhere. And very little precedent,” adds Paul, who now teaches constitutional law, property and jurisprudence.
There’s no limit to the number of times a president can be impeached—even for the same crime, Paul says. Presidents are not protected by double jeopardy, which prevents someone from being charged with the same crime twice.
Congress would likely pursue broader abuse of office charges this time, but might include the accusations that led to the initial impeachment proceedings, Paul explains.
Over the weekend, as pressure to impeach Trump mounted, lawmakers gave some hints about what might happen this week. House Speaker Nancy Pelosi circulated a letter on Saturday advising colleagues that they should prepare to return to Washington this week, and that “there must be a recognition that this desecration was instigated by the President.”
Meanwhile, Rep. Ted Lieu, a California Democrat, announced on Saturday that an article of impeachment drafted by him, David Cicilline of Rhode Island, and other House Democrats had drawn more than 180 co-sponsors.
“We will introduce the Article of Impeachment this Monday during the House’s pro forma session,” Lieu tweeted.
Republican Sen. Pat Toomey of Pennsylvania told Fox News on Saturday that he thought Trump “had committed impeachable offenses.” But Toomey said that he wasn’t certain that attempting to remove the president days before he leaves office was the right action to take.
Republican Sen. Lisa Murkowski of Alaska called for Trump to resign. “I want him out. He has caused enough damage,” she told the Anchorage Daily News. Republican Sen. Ben Sasse of Nebraska told CBS News on Friday that he would consider articles of impeachment.
Northeastern’s Paul says Trump could be impeached before Jan. 20, the day of President-elect Joe Biden’s inauguration. But Paul thinks it is almost inconceivable that Trump would be impeached and convicted in the short time before he left office.
“The question would then be ‘Could there be a trial after he’s out of office?’” Paul says.
That happened in 1876, Paul says, when President Ulysses S. Grant’s secretary of war, William Belknap, was convicted of using his office for personal gain. He was impeached but then resigned from office. The Senate went ahead and tried him, but he was later acquitted.
“The reason why that matters today is that the Senate could vote to convict and also to bar [Trump] from future office, which might mean barring him from running for the presidency again,” adds Paul.
The 25th Amendment to the Constitution—another vehicle that Trump opponents have advocated using— is more targeted at prompt action, though it contains no ban from future office, Paul says. Last week, Illinois Rep. Adam Kinzinger became one of the first Republican lawmakers to call for its use. “It’s time to invoke the 25th Amendment and to end this nightmare,” Kinzinger said in a video. “The president is unfit.”
The 25th Amendment relates more to a president’s inability to carry out the functions of the office due to a physical or mental disability.
It was added to the Constitution in 1967 to fill in a number of gaps, in the confusing aftermath of John Kennedy’s assassination in 1963, about how to choose a new vice president after Lyndon Johnson became president.
“What happens if a president is shot and unconscious for a long time? Who’s the president?” says Paul. “We all assumed it was the vice president, but it wasn’t spelled out in the original text.”
To invoke the 25th Amendment, the vice president and the majority of the Cabinet would have to send a letter to leaders of the House and Senate, saying the president is no longer able to perform his duties, Paul explains. Congress would have 21 days to deliberate, and the president would have the right to defend himself. The vice president would remain in charge during the deliberations.
“I don’t think [Vice President Mike Pence] is going to have any appetite for doing that,” predicts Dukakis.
There are other ways that Trump could face legal consequences for his actions in office, Paul says. If a crime is discovered after a president’s term ends, the Justice Department could pursue a case.
“His temporary immunity, when he’s no longer in office, would have expired,” Paul says.
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