Senate Majority Leader Mitch McConnell told his Republican colleagues in the upper chamber that the earliest a second impeachment trial of President Trump would begin is January 20th, the day President-elect Joe Biden will be sworn into office.
House Democrats are planning to impeach Trump with a single impeachment article charging him with ‘incitement of insurrection’ as anger swells over the ransacking of the United States Capitol by a mob inspired by the president.
Democrats are demanding that Trump resign or face impeachment while just a handful of Republicans signaled they are willing to consider voting in favor of removing the president or barring him from office for life.
Senator Lisa Murkowski of Alaska has demanded that the president resign while her fellow Republican, Senator Ben Sasse of Nebraska, has said that he will ‘definitely consider’ any articles of impeachment brought by the House.
The move to impeach Trump is on a hyper-fast track after Wednesday’s Capitol riot – with the article set to be introduced Monday.
Senate Majority Leader Mitch McConnell (left) told his Republican colleagues in the upper chamber that the earliest a second impeachment trial of President Trump (right) would begin is January 20th, the day President-elect Joe Biden will be sworn into office
A draft impeachment article charges Donald Trump with ‘incitement of insurrection’
A draft of the article prepared by Reps. David Cicilline, Ted Lieu, and Jamie Raskin states that, ‘Incited by Trump, a mob unlawfully breached the Capitol,’ injured law enforcement, menaced lawmakers and the vice president, and interfered with the count of the Electoral College.
The chances of Trump being convicted by the necessary two-thirds majority in the Senate are slim. If the president is convicted, the Senate would then take up a vote on whether to disqualify Trump from ever holding office again.
In the cast, a simple majority of lawmakers is needed to ban the president from ever holding public office again.
McConnell, the Kentucky Republican, circulated a memo to the other members of his caucus in which he maps out how a Senate trial would work if the House of Representatives follows through on its threat to impeach Trump.
In the memo, McConnell notes that the Senate will not reconvene for conventional business until January 19 – just a day before Biden’s inauguration, according to The Washington Post.
The Senate will reconvene for two pro forma sessions on Tuesday and Friday that do not allow for substantive business to be conducted unless all 100 members unanimously decide to take up impeachment.
That is unlikely since there is a large faction of pro-Trump senators that would almost certainly object to taking up a trial.
‘Again, it would require the consent of all 100 Senators to conduct any business of any kind during the scheduled pro forma sessions prior to January 19, and therefore the consent of all 100 Senators to begin acting on any articles of impeachment during those sessions,’ according to the memo from McConnell.
Senate impeachment rules state that the upper chamber could begin a trial a day after it agrees to receive the articles of impeachment from the House.
That means Minority Leader Chuck Schumer, who will take up McConnell’s post as majority leader after Biden is sworn into office, will have to take up a trial.
McConnell’s memo to the Senate GOP was obtained by The Washington Post
An impeachment trial of Trump in the early days of Biden’s presidency could distract from the new administration’s efforts to get its agenda off the ground.
Biden will take office as the nation is in the throes of a surge in coronavirus cases as well as a severe economic downturn caused by the pandemic.
The new president will also want Congress to confirm his Cabinet nominees.
Two-thirds of the Senate is needed to convict, and this would be unlikely even if the chamber did somehow come back in session to hold a trial and vote.
While Democrats will hold the majority with 50 Senate seats and Vice President Kamala Harris as a tie-breaking vote, they would need at least 17 other Republicans to convict Trump.
Constitutional scholars are divided as to whether Trump could be impeached and tried in the Senate even after he leaves office.
‘I tend to believe it is only for current office holders,’ Harvard law professor Cass Sunstein told NBC News.
Others, however, disagree.
‘Once an impeachment begins in the House, it may continue to a Senate trial. I don’t see any constitutional problem with the Senate acting fast or slowly,’ said Michael Gerhardt, a law professor at the University North Carolina at Chapel Hill.
There is another school of thought which holds that Trump can certainly be tried even after he re-enters civilian life.
In the memo, McConnell notes that the Senate will not reconvene for conventional business until January 19 – just a day before Biden’s inauguration
Senate impeachment rules state that the upper chamber could begin a trial a day after it agrees to receive the articles of impeachment from the House
‘The constitutional case for late impeachment has more strengths and fewer flaws than the case against it,’ wrote Brian Kalt, a professor at the Michigan State University College of Law.
There is historical precedent for impeaching figures after they have left office.
In 1876, the House investigated Secretary of War William Belknap for corruption. Just before a vote on his impeachment, Belknap resigned.
But the House went ahead with impeachment anyway and the Senate staged a trial. Belknap was acquitted since the vote to convict fell short of the necessary two-thirds majority.
LIKELY TIMELINE OF SECOND TRUMP IMPEACHMENT
January 7 – House Speaker Nancy Pelosi comes out strongly Thursday in support of Trump’s removal — either by his own Cabinet or by Congress, if necessary — after pro-Trump supporters violently breached and ransacked the Capitol
January 11 – Democratic Reps. David Cicilline of Rhode Island, Jamie Raskin of Maryland and Ted Lieu of California are expected to introduce an article of impeachment charging Trump with abuse of power
January 12 – 14 – House is expected to vote on a single article of impeachment charging the president with ‘incitement of insurrection.’
January 19 – Senate receives the article of impeachment from the House
January 20 – Senate trial would start on the same day that President-elect Joe Biden is inaugurated
One possibility is that Trump could go to court and sue in order to stop the Senate from taking up a trial.
But in that case Trump would most likely lose since the Constitution says the Senate has ‘the sole power to try all impeachments.’
No president has ever been removed from office after being impeached. Trump would also be the first president to ever be impeached twice.
While many Republican senators have disparaged Trump’s actions in the last week, several Republicans have already said they think impeachment would divide the country even further just ahead of Biden’s inauguration.
Still, some Republicans have appeared open to impeachment.
Senator Ben Sasse of Nebraska, who voted to acquit Trump last year, said he will ‘definitely consider’ impeachment.
Alaska Senator Lisa Murkowski, who also voted to acquit, told the Anchorage Daily News on Friday that she wants Trump to resign.
Only one Republican voted to convict Trump last year — Utah Senator Mitt Romney.
Republicans, even those who have criticized Trump, say impeachment would be unhelpful.
Senate Judiciary Committee Chairman Lindsey Graham, a Republican from South Carolina, said it would do ‘more harm than good.’
But Democrats say they believe they have to try anyway.
Vermont Sen. Bernie Sanders tweeted on Friday that some people might ask why they would try to impeach a president with only a few days left in office.
‘The answer: Precedent,’ he said.
‘It must be made clear that no president, now or in the future, can lead an insurrection against the US government.’
Graham on Friday begged Biden to call off a second impeachment, insisting that Trump should be given credit for having made a ‘helpful’ statement, and pleading with Biden that impeachment ‘will destroy the country even further.’
The South Carolina senator appeared on Sean Hannity’s Fox News show on Friday night, hours after the articles of impeachment were unveiled.
But Graham, looking shaken, urged Biden to call his colleagues and tell them not to proceed.
Lindsey Graham on Friday night appeared on Sean Hannity’s Fox News show, after a day spent with Donald Trump
Graham pleaded with Joe Biden to call Nancy Pelosi, and ask her to end plans to impeach the president for a second time
“I’m calling on President-elect Biden to pick up the phone to call Nancy Pelosi and the Squad to end the second impeachment” — Lindsey Graham, who says he was with Trump today, just went on Hannity for an interview that had a hostage video quality pic.twitter.com/yx9IrXCVqZ
‘I wanted President Trump to win so badly,’ Graham admitted.
‘Now, tonight, I am calling on President-elect Biden to pick up the phone and call Nancy Pelosi and the squad to end the second impeachment.
‘President Trump gave a statement last night that was helpful. It hit the mark. He wants to move on to a peaceful transfer of power. He wants this to end.’
Graham, a regular golfing partner of the president’s, said he had spent the day with the increasingly-isolated Trump, who since Wednesday has had two Cabinet members and a series of officials resign in disgust at his incitement of the rioters.
On Friday evening had his Twitter page deleted permanently, which will likely add to his fury.
‘I’ve been with him most of the day; he’s going to focus on his agenda and his successes for the American people, in the next few days,’ said Graham, attempting to hold out an olive branch on behalf of Trump.
‘Joe Biden said it’s up to Congress regarding impeachment.
‘No, President-elect Biden, it’s up to you.
‘Pick up the phone and call Nancy Pelosi, Chuck Schumer and the squad and tell them: stand down; this will destroy the country even further.
‘You have the power to do that. The question is, do you have the courage to do it.’
Nancy Pelosi, House speaker, is pressing ahead with plans to file articles of impeachment on Monday if Trump does not resign
Biden seems unlikely to be inclined to do Trump any favors, but has not responded to Graham’s plea.
The impeachment document cites Trump’s false claims that ‘We won this election’ and ‘We won it by a landslide, and cites his effort to ‘subvert and obstruct the certification of the results.’
With the Capitol still cleaning up broken windows, smashed historic doors, and mourning a deceased Capitol Police officer, the article states that he ‘gravely endangered the security of the United States.’
Trump ‘betrayed his trust as president,’ it reads, calling his conduct ‘grossly incompatible with self-governance and the rule of law.’
It calls for him not just to be removed but to be banned from public office – which would prevent a 2024 presidential run, and potentially make the idea more attractive to Republicans than simple conviction.
But the White House said that a ‘politically motivated impeachment against a president with 12 days remaining in his term will only serve to further divide our great country.’
House Democrats hashed out the plan for hours on a conference call. House Speaker Nancy Pelosi provided a Friday afternoon update on plans – with several options in the mix.
‘It is the hope of Members that the President will immediately resign,’ Pelosi said. ‘But if he does not, I have instructed the Rules Committee to be prepared to move forward with Congressman Jamie Raskin’s 25th Amendment legislation and a motion for impeachment. Accordingly, the House will preserve every option – including the 25th Amendment, a motion to impeach or a privileged resolution for impeachment.’
She was referencing separate legislation by Raskin to establish a commission as outlined in the 25th Amendment, which allows for such a commission to determine whether a president is fit for office. But it would have to clear the Senate and require the president’s approval to become law.
Her comment about a privileged resolution suggests the move could happen rapidly, setting off a chain of events that are still difficult to predict.
If the House passes and impeachment article, Pelosi could quickly transmit it to the Senate – although she stalled late last year. The terms of a Senate impeachment trial are governed by the standing rules of the Senate, so Majority Leader Mitch McConnell would have major say in how quickly the effort might proceed and under what terms.
What was unknown Friday afternoon was the extent of Senate Republican support.
The last impeachment featured public committee hearings and a long investigatory process, but Judiciary Committee Chairman Rep. Jerold Nadler said he supports bringing articles ‘directly to the House floor.’
Voting them forward would make him the first president to be impeached twice. No president has even been convicted.
The articles were published just after Pelosi demanded that Trump resign his office ‘immediately’ or face impeachment.
And it came on a day that:
Trump said he would snub Joe Biden’s inauguration, in yet another rejection of tradition and norms;
Biden responded saying it was ‘one of the few things we’ve ever agreed on’ but said impeachment and removal were up to Congress, not him;
Pelosi revealed she has asked General Mark Milley, the Chairman of the Joint Chiefs of Staff, how he is stopping a ‘deranged president’ from using the nuclear codes or launching military action – but did not say how he responded;
The prospect of the 25th Amendment being deployed appeared to fade. Pence was reported to be ‘reluctant’ to use it, if only because of the legal chaos which would ensue over whether the cabinet has enough members to vote to invoke it – partly because Elaine Chao, the transportation secretary and Betsy DeVos, the education secretary have resigned in disgust and partly because Trump had filled the cabinet with acting secretaries whose legal authority to invoke it is unclear;
Republican senator Ben Sasse said he was willing to impeach and remove Trump, making him the first of the GOP caucus who had voted against convicting the president last year to change position – but so far no others have followed;
After his cabinet was rocked by resignations, one of his closest aides Hope Hicks announced she would resign next week – although she claimed it was her plan all along – and White House counsel Pat Cipollone was reported to be on the brink too;
Washington D.C.’s district attorney Karl Racine hinted that he is investigating Trump, Don Jr, and Rudy Giuliani over inciting the riot at the wild rally held just outside the White House where the president demanded ‘strength’ and said he would lead a march on the Capitol and Giuliani demanded ‘trial by combat’;
The FBI launched a murder hunt to find the MAGA rioters who killed Officer Brian Sicknick during the storming of the Capitol, apparently hitting him over the head with a fire extinguisher;
Cops across the country began rounding up suspected rioters after putting out wanted pictures, with those arrested including the self-proclaimed white supremacist who was pictured with his feet up on Pelosi’s desk.
Scene of the crimes: Nancy Pelosi inspects the Rotunda of the Capitol with Lesley Stahl of 60 Minutes. A massive clean-up effort in the wake of the MAGA riots has been under way
Room where it happened: MAGA rioters rampaged through the Rotunda and one of the four who died was apparently trod on there. She had been carrying a ‘don’t tread on me’ flag
High-profile interview: Nancy Pelosi will appear on 60 Minutes on Sunday
Seeking answers: Nancy Pelosi is facing questions on the details of how she impeaches Donald Trump for a second time
She issued the demand as her separate push to have Vice President Mike Pence seek to invoke the 25th Amendment to strip away power from Trump appears to be collapsing.
Pelosi made the demand in a letter to colleagues released just minutes before House Democrats joined on a conference call discuss whether to go ahead with a second impeachment of Trump, after the death toll in the Capitol riot rose to give, including a Capitol Police officer.
‘If the President does not leave office imminently and willingly, the Congress will proceed with our action,’ she said, referencing the impeachment power without naming it.
She issued the call after members of her leadership team said an impeachment effort would move forward within days.
‘As you know, there is growing momentum around the invocation of the 25th Amendment, which would allow the Vice President and a majority of the Cabinet to remove the President for his incitement of insurrection and the danger he still poses,’ she told lawmakers.
‘Yesterday, Leader [Charles] Schumer and I placed a call with Vice President Pence, and we still hope to hear from him as soon as possible with a positive answer as to whether he and the Cabinet will honor their oath to the Constitution and the American people,’ she said.
Schumer said Thursday the joint call resulted in them waiting for 25 minutes and Pence being unwilling to come to the phone.
Pelosi pointed to the key role senior Republicans played in getting Richard Nixon to resign.
‘Nearly fifty years ago, after years of enabling their rogue President, Republicans in Congress finally told President Nixon that it was time to go. Today, following the President’s dangerous and seditious acts, Republicans in Congress need to follow that example and call on Trump to depart his office – immediately,’ she wrote.
House Democrats held a conference call Friday to discuss a plan to rush through articles of impeachment against President Donald Trump in the final 13 days of his presidency – with leaders saying the votes are likely there for it.
Pelosi blasted Trump on the call. ‘The President chose to be an insurrectionist,’ a source told The Hill. ‘Impeachment encourages conversation on the 25th Amendment. That’s picked up a lot of steam,’ she said.
Leaders of both chambers, Speaker Nancy Pelosi and Senate Leader Charles Schumer – said they would support impeachment if Vice President Mike Pence fails to act with the Trump cabinet under the 25th amendment to strip him of authority following the Capitol riot on Wednesday.
Pence appears not to be interested in that route – rebuffing a call from the two leaders Thursday morning. Yesterday, two Trump cabinet members who would vote in a 25th Amendment scenario, Transportation Sec. Elaine Chao and Education Secretary Betsy DeVos, announced their resignations – taking them out of the mix of cabinet members who could vote to strip away power.
Speaker of the United States House of Representatives Nancy Pelosi has said if Mike Pence and the cabinet do not invoke the 25th Amendment the House will likely go forward with impeachment. She says Trump cited ‘sedition’ against the U.S. ‘If the President does not leave office imminently and willingly, the Congress will proceed with our action,’ she said
Rep. Katherine Clark (D-Mass.), the assistant speaker, said the House ‘will move forward with impeachment’ if Mike Pence fails to act under the 25th Amendment
Assistant House Speaker Rep. Katherine Clarke (D-Mass.) said a floor vote could come next week.
‘Donald Trump needs to be removed from office. And we are going to proceed with every tool that we have to make sure that that happens to protect our democracy,’ she said.
‘If the reports are correct, and Mike Pence is not going to uphold his oath of office and remove the president and help protect our democracy, then we will move forward with impeachment to do just that,’ she told CNN.
Top Democrats say they must act to prevent Trump from doing anything dangerous in his final days in office – but the move is fraught with political implications during an unstable period.
Trump tweeted Friday morning that he would not be attending Joe Biden’s inauguration, hours after finally releasing a video where he called for a ‘seamless’ transition despite curing up a volatile post-election period.
Even getting impeachment articles through the House in an expedited fashion should be a manageable lift for Democratic leaders.
The role of the Senate, where a trial would be held, is less certain. Senate Majority Leader Mitch McConnell broke with Trump over his demands that Congress throw out electors in states he lost, and his wife, Chao, quit the cabinet on Thursday.
But during Trump’s impeachment trial in January just one GOP senator, Utah’s Mitt Romney, voted for an impeachment article to remove Trump from office.
Sen. Ben Sasse (R-Neb.) said he would ‘consider’ impeachment articles against Trump.
‘The House, if they come together and have a process, I will definitely consider whatever articles they might move,’ he told CBS, after public comments denouncing aspects of Trump’s conduct and voting to count certified electors for Biden.
He said an ‘insurrectionist mob’ tried to ‘disrupt the people’s house’ after Trump ‘told them to go to the Capitol and go wild.’ He said Trump was ‘flagrantly disregarding his oath of office’ – but said it was open what was the ‘best thing’ for the country. He said what Trump did was ‘wicked’ – but still stopped short of saying going ahead with impeachment was the right call.
Rep. Debbie Dingell (D-Mich.) said party members believe Trump needs to be ‘held accountable.’
‘I think we’re probably getting ready to go down that path next week,’ she said of impeachment. But she told CNN there is a risk of causing further division.
‘How do you hold somebody accountable for the damage that they have done to our democracy? That is a real question. And how do you manage this without causing further division to this country?’ she asked.
Republican Senator Ben Sasse of Nebraska discusses a possible second impeachment of President Donald Trump
It is unclear how many House Republicans might go along with an effort following the riot in the Capitol. Scores of House Republicans voted to reject electors for Joe Biden from states that had certified the results, backing Trump’s false claims of massive fraud.
House Minority Leader Rep. Kevin McCarthy blasted the idea as divisive, following a report he engaged in a screaming phone call with Trump as Trump supporters besieged the Capitol, with the lawmaker pleading with Trump to tell them to stop.
McCarthy and a majority of his conference nevertheless voted to back Trump’s false claims of widespread fraud by rejecting Electoral College votes certified in two states.
‘Impeaching the President with just 12 days left in his term will only divide our country more,” McCarthy said. “I have reached out to President-elect Biden today and plan to speak to him about how we must work together to lower the temperature and unite the country to solve America’s challenges,’ McCarthy said in a statement.
Mike Pompeo and Steve Mnuchin discussed using the 25th Amendment to remove Donald Trump from office on Wednesday night, according to a report, but ultimately decided against it.
The Secretary of State and Treasury Secretary’s deliberations were reported as the two top Democrats in Congress, Sen. Charles Schumer and Speaker Nancy Pelosi, reached out directly to Vice President Mike Pence Thursday to try to push him to act immediately to remove Trump from office, only to be rebuffed.
Pompeo and Mnuchin held discussions with their aides and staff, CNBC reported on Thursday.
Both men concluded that the 25th Amendment was not the right course of action for three main reasons, four sources told the channel.
Firstly, it would take longer than a week, which made it not worth the effort given there remain only 13 days of the Trump presidency.
Secondly, it was unclear whether the three acting Cabinet members, not yet confirmed by the Senate, would be able to cast a vote.
And finally, it was likely to pour further fuel on the fire, and enrage Trump’s supporters.
‘The general plan now is to let the clock run out,’ said one former senior administration official aware of the discussions.
‘There will be a reckoning for this president, but it doesn’t need to happen in the next 13 days.’
The State Department denied the discussions had taken place; the Treasury did not comment.
Mike Pompeo, the Secretary of State (pictured December 11), reportedly considered invoking the 25th Amendment
Steve Mnuchin, the Treasury Secretary, on Wednesday night reportedly considered whether to push for the 25th Amendment
Their deliberations came as the two leaders called Pence hours after he had overseen a Joint Session of Congress to count the electoral votes to make Joe Biden the next president, despite intense pressure by President Trump that Pence move against it.
Late Thursday sources told CNN that Trump’s mental state was deteriorating and he was ‘ranting’ and ‘raving’ as he watched the 25th Amendment being discussed on television – with Pelosi and Schumer’s demand being played repeatedly.
But if they had hopes that Pence might join in a speedy potential effort to seize the reins of power from a volatile Trump in his final days in office, the reception they got may provide an answer.
‘Speaker Pelosi and I tried to call the vice president this morning to tell him to do this,’ Schumer told reporters in New York Thursday. ‘They kept us on hold for 25 minutes and then said the Vice President wouldn’t come on the phone.’
‘So we are making this call public because he should do it and do it right away,’ Schumer said, explaining why both he and Pelosi are calling on Pence and the Trump cabinet to invoke the 25th Amendment to declare Trump unfit and install Pence as president in an acting capacity.
The call preceded furious comments from Pelosi charging Trump with fomenting ‘insurrection’ and inciting ‘sedition.’
‘Yesterday the President of the United States incited an armed insurrection against America,’ Pelosi said at a Capitol press conference a day after Trump supporters stormed the building after attending a rally where Trump spoke.
She used stark language beyond even the tough talk of impeachment in last December and January, accusing him of crimes against the nation he leads.
‘In calling for this seditious act, the president has committed an unspeakable assault on our nation and our people,’ said Pelosi.
Unlike 2019 and 2020 she has just days to force through an impeachment, but this time has a far greater chance that 12 Republican senators join the Democrats to convict after some openly expressed disgust for the president or his actions. Among those Democrats would target are Pennsylvania’s retiring Pat Toomey and ultra-conservative Tom Cotton, Utah’s Mike Lee and Ohio’s Rob Portman.
Nancy Pelosi reveals she asked Chairman of the Joint Chiefs Mark Milley today how he is keeping ‘unhinged president’ from using the nuclear codes or starting military action – and does NOT reveal his answer
Pelosi told colleagues Friday that she phoned the chairman of the Joint Chiefs of Staff to discuss ‘precautions’ to prevent Trump from starting a war or accessing nuclear launch codes.
She said she had asked Army General Mark Milley how to keep a ‘deranged president’ away from the nuclear codes and stop him from launching a unilateral military action.
Pelosi released the letter just minutes before House Democrats were to meet on a conference call to discuss whether to go ahead with a second impeachment of Trump, after he egged on his supporters in their march to the Capitol that led to a riot and multiple deaths – including of a Capitol Police officer.
She headed her comment: ‘Preventing an Unhinged President From Using the Nuclear Codes’ in a ‘Dear Colleague’ letter.
‘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,’ she informed them.
Notably, she did not reveal what response Milley provided, or whether any security guardrails have been established.
‘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,’ she wrote.
She also revealed that Vice President Mike Pence has not returned her call seeking to discuss the 25th Amendment, whereby he and a majority of the Trump cabinet might move to strip Trump of power and make Pence the ‘acting president.’
A White House military aide and member of the US Navy carries a briefcase known as the ‘football,’ containing emergency nuclear weapon codes. Pelosi says she spoke with Chairman of the Joint Chiefs of Staff, Army US Army General Mark Milley, on their use but provided no information on his response
‘As you know, there is growing momentum around the invocation of the 25th Amendment, which would allow the Vice President and a majority of the Cabinet to remove the President for his incitement of insurrection and the danger he still poses,’ she wrote.
‘Yesterday, Leader [Charles] Schumer and I placed a call with Vice President Pence, and we still hope to hear from him as soon as possible with a positive answer as to whether he and the Cabinet will honor their oath to the Constitution and the American people,’ she said.
Pelosi referenced impeachment in a letter to colleagues
She said she spoke about preventing an ‘unhinged’ president from using the nuclear codes
‘Nearly fifty years ago, after years of enabling their rogue President, Republicans in Congress finally told President Nixon that it was time to go. Today, following the President’s dangerous and seditious acts, Republicans in Congress need to follow that example and call on Trump to depart his office – immediately. If the President does not leave office imminently and willingly, the Congress will proceed with our action.’
Under current procedures, a military aide travels with the president wherever he goes with the nuclear ‘football’ containing the nuclear codes.
The executive as commander in chief maintains control over the entire U.S. military – and has the ability to order strikes, subject to War Powers Act consultation requirements with Congress.
All military members have all sworn oaths to the constitution, and the Code of Military Justice states that members of the military must fall ‘lawful orders of his/her superior.’
WHAT DOES THE 25TH AMENDMENT SAY? CAN TRUMP’S CABINET REALLY TOPPLE HIM?
The 25th Amendment to the U.S. Constitution deals with presidential authority in the event of death or removal from office, and was ratified in 1967, in the wake of John F Kennedy’s assassination.
What does the 25th Amendment say?
It is in four sections, all dealing with the president leaving office during his or her elected term.
The first section states that the vice president takes over the Oval Office if the president dies or resigns – or is removed – something which the original Constitution did not clearly state.
Presidents of course can be removed by impeachment, a feature of the constitution from the start. They can also be removed through the 25th Amendment – of which more below.
Section II states that if the vice president dies, or resigns – or is fired – both the House and Senate have to confirm a new vice president. Until 1967, presidents could change vice presidents mid-term on their own if they got the vice president to agree to resign – not something that actually happened, but which was possible in principle.
Section III makes clear that a president can temporarily delegate his powers to the vice president, and later reclaim them when he – or she – is capable of serving. This is most often invoked if a president is under the influence of surgical anesthetic for a short period of time.
Section IV is the amendment’s most controversial part: it describes how the president can be removed from office if he is incapacitated and does not leave on his own.
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’ must write to both the president pro tempore of the Senate and the Speaker of the House, saying that ‘the President is unable to discharge the powers and duties of his office.’
The term principal officers of the executive departments would normally mean the cabinet secretaries.
So at least eight of the president’s 15 most senior Cabinet members together with the vice president must agree that a president should be removed before any plan can move forward.
Notifying the House Speaker and the Senate president pro tempore is the act that immediately elevates the vice president to an ‘acting president’ role.
The deposed president can contest the claim, giving the leaders of the bloodless coup four days to re-assert their claims to the House and Senate.
Congress then has two days to convene – unless it is already in session – and another 21 days to vote on whether the president is incapable of serving. A two-thirds majority in both houses is required to make that determination.
As soon as there is a vote with a two-thirds majority, the president loses his powers and is removed, and the vice president stops acting and is sworn in as president.
But if 21 days of debate and votes ends without a two-thirds majority, the president gets back his powers.
What could happen to trigger the 25th Amendment?
Vice President Mike Pence and eight of the 15 ‘principal’ Cabinet members would have to agree to notify Congress that President Donald Trump was incapable of running the country.
That group is made up of the Secretary of State, Treasury Secretary, Secretary of Defense, Attorney General, Interior Secretary, Agriculture Secretary, Commerce Secretary, Labor Secretary, Health and Human Services Secretary, Transportation Secretary, Energy Secretary , Education Secretary, Veterans Affairs Secretary and Homeland Security Secretary.
Their formal notification would go to the House Speaker and, in the senate, to the ‘president pro tempore’, the Senate’s most senior member. As soon as the letter is sent, Pence would become ‘acting president.’
Alternatively, Congress could set up its own mechanism to decide if he is fit for office – maybe a commission, or a joint committee. Pence would still have to agree with its conclusion and then write formally to the Speaker and president pro tempore.
Or another possibility is that the pool of ‘principal officers’ is considered to be bigger than the 15 and a majority of that group call Trump incapable.
What if Trump does not agree?
If Trump claims he is capable of holding office, he would write to the House Speaker and the president pro tempore of the Senate within four days, setting up three weeks of intense debate in both houses of Congress.
Trump would be removed from office if both two-thirds majorities in both the House and Senate agreed with Pence and his cabal.
If either of both chambers fell short of that mark, Trump would retain his powers and likely embark on a wholesale housecleaning, firing Pence and replacing disloyal Cabinet members.
Are there any loopholes?
The 25th Amendment allows Congress to appoint its own panel to evaluate the president instead of relying on the Cabinet – the men and women who work most closely with Trump – to decide on a course of action.
It specifies that some ‘other body as Congress may by law provide’ could play that role, but Pence would still need to agree with any finding that the president is incapable of discharging his duties.
That commission could hypothetically include anyone from presidential historians to psychiatrists, entrusted to assess the president’s fitness for office.
Another loophole is that it does not spell out that the Cabinet is needed to agree, but says that the ‘principal officers’ of the departments are needed. That term is undefined in the constitution. In some departments legislation appears to name not just the secretary but deputies and even undersecretaries as ‘principal officers’, so many more people could be called in to the assessment of Trump’s fitness.
But Trump’s cabinet has a swathe of ‘acting’ cabinet officer – and it is unclear if they could therefore take part in removing him.
Could Trump fire Pence if he rebelled?
Yes, in principle. If Trump smelled a whiff of trouble – if Pence and a cabal of Cabinet members, or Pence and a panel assembled by Congress seemed ready to judge him incapacitated – he could dismiss his vice president with the stroke of a pen to stop the process.
But installing a more loyal VP could be problematic since the 25th Amendment includes its own poison pill: Both houses of Congress must vote to approve a new vice president.
That means Trump would find himself up against the same Congress that would vote on his fitness for office, unless the process were to unfold in the weeks before a new Congress.
Theoretically, a Democratic-controlled Congress could make life dramatically more difficult for the president if it came into power in the midst of the constitutional crisis.
One scenario has appeared to stump presidential historians, however: Firing Pence before the process is underway, and then leaving the vice presidency vacant, would give Congress no practical way forward. That would present its own constitutional crisis.
Is there any precedent for this?
No. Only Section III, the voluntary surrender of presidential powers, has ever been used – and only very briefly.
In December 1978, President Jimmy Carter thought about invoking Section III when he was contemplating a surgical procedure to remove hemorrhoids.
Presidents Ronald Reagan and George W. Bush both voluntarily relinquished their powers while undergoing procedures under anesthetic.
Section IV has also never been invoked, although there have been claims that Ronald Reagan’s chief of staff Donald Regan told his successor, Howard Baker, in 1987 that he should be prepared to invoke it because Reagan was inattentive and inept.
The PBS documentary ‘American Experience’ recounts how Baker and his team watched Reagan closely for signs of incapacity during their first meeting and decided he was in perfect command of himself.