With 12 Days Left, Removing Trump From Office Is Unlikely, If Not Impossible

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08 Янв 2021, 23:00

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President Trump arrives on the South Lawn of the White House last month.

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House Speaker Nancy Pelosi and Democratic Senate leader Chuck Schumer are calling on Vice President Pence to invoke it, and it has apparently been talked about among some Cabinet members.

But Pence appears to have little appetite for going forward with that. Pelosi and Schumer said Thursday they tried to call Pence to discuss it, but were left on hold for 25 minutes before being told the vice president wouldn’t be speaking with them.

Impeachment, take two

A second Trump impeachment, on the other hand, appears to be growing more likely by the hour.

«The sentiment of the caucus is heading in that direction,» Majority House Whip Jim Clyburn of South Carolina said Friday afternoon on MSNBC.

The House could move quickly to file articles of impeachment, vote on them and send them to the Senate. The Senate would then have to immediately take them up. Impeachment takes precedence over any other business.

The problem is: the Senate is adjourned until Jan. 19, and Biden’s inauguration is the next day.

So removing Trump from office isn’t going to happen through impeachment given that timeline. It would also delay confirmation of Biden’s Cabinet. That might be less of a priority right now than holding Trump to some account, but it would leave Biden without secretaries of Defense, Homeland Security or State, for example, as he takes office.

But the House may very well go through with it for the reason of trying to stop Trump from again holding political office again.

The Constitution, under Article I, section 3, clause 7 says that «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 to disqualify him, there would need to be a separate vote and it would be up to the Senate to consider it.

«Procedurally, they have the articles of impeachment, the Senate would convict and then after they convict, someone would make a motion to also disqualify and then they would take up that,» said Brian Kalt, author of Unable, The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment. «So it’s totally at the discretion of the Senate whether to consider it and then once they consider it, it’s just up to that simple majority whether they do it.»

But with the Senate out until Jan. 19, there’s a constitutional question of whether impeachment can go through after a president’s term is up.

And there’s also a question of whether the penalty barring him from office would even stick.

«It disqualifies you from office under the United States, and the Constitution elsewhere distinguishes that from Congress,» Kalt said, adding, «Officers are generally appointed positions, and possibly the president, too, although there’s some debate on that, since he’s elected.»

So could Trump run again even if a disqualification provision passes the Senate?

«He could try,» Kalt said. «There are people who have argued that. I think, though, as a practical matter, if they’re going to get two-thirds in the Senate against him [for impeachment], it would be a sign that just as a practical matter, he’s lost enough Republican support, that he’d be facing an uphill battle getting the nomination anyway. So that would help. But he could fight it out. I mean, he’s shown a willingness to do that.»

While there is support from some Republicans, it’s not clear there would be enough to support Trump’s removal.

House Minority Leader Kevin McCarthy said he reached out Friday to President-elect Biden «to lower the temperature.»

«Impeaching the President with just 12 days left will only divide our country more,» McCarthy tweeted.

That, despite McCarthy joining objections to Biden’s certification Wednesday, both before and after the mob stormed the Capitol.

Sen. Lindsey Graham of South Carolina, who has been one of Trump’s most loyal foot soldiers but did not side with objections to the 2020 election, warned of «damage that would be done» from impeachment and that it would not be successful.

As President @realDonaldTrump stated last night, it is time to heal and move on.

If Speaker Pelosi pushes impeachm ent in the last days of the Trump presidency it will do more harm than good.I’m hopeful President-elect Biden sees the damage that would be done from such action.

— Lindsey Graham (@LindseyGrahamSC) January 8, 2021

Not following presidential orders

Some are also encouraging another extraordinary step: not following a presidential order.

«This morning, I spoke to the Chairman of the Joint Chiefs of Staff Mark Milley to discuss available precautions for preventing an unstable president from initiating military hostilities or accessing the launch codes and ordering a nuclear strike,» House Speaker Nancy Pelosi said in a press release Friday. «The situation of this unhinged President could not be more dangerous, and we must do everything that we can to protect the American people from his unbalanced assault on our country and our democracy.»

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That’s not without precedent.

«You may recall back during the impeachment period with Richard Nixon, Secretary of Defense Jim Schlesinger put out the word — do not follow any order that involves using nuclear weapons until you check with me or Secretary Kissinger,» William Cohen, defense secretary under President Bill Clinton, told PBS NewsHour earlier this week before the events at the Capitol. «And I would expect the chairman of the Joint Chiefs, who is not in the chain of command, I would expect the acting secretary of defense to do something quite similar to that.»

Cohen, who was one of 10 living former defense secretaries to sign onto a letter urging the president to facilitate a peaceful transfer of power, asserted that members of the military only have to follow orders that are legal, ethical and constitutional.

But not following a command, he said, «requires those in the chain of command to make an assessment: Is this done for legitimate reasons? Is this something that’s done for purely political opportunity? They could then refuse to carry out that order.»

But that could only last for so long.

«It could slow things down,» Kalt said, «but a determined president, as long as he has his powers, can eventually get what he wants.»

Because of the timeline and the politics of the Republican Party, any real accountability for Trump could come after he leaves office — whether that’s through legal action related to Trump’s incitement of the violence, legal investigations in New York, or simply through damage to his brand and business empire.