Filenews 7 January 2021
The intrusion into the Capitol of supporters of President Donald Trump led to demands from some lawmakers for his removal from office before the inauguration of newly elected president Joe Biden on January 20.
The chaotic scenes unfolded after Republican Trump, who has denied a peaceful transfer of power, addressed thousands of protesters and repeated unsubstantiated claims that he was robbed of the election.
There are two ways to remove a president from office: invoking the 25th Amendment to the U.S. Constitution and referring him to the Senate. In both scenarios, Vice President Mike Pence takes the reins of the country until Biden's inauguration.
A source with knowledge of the effort said there are some initial discussions between cabinet members and Trump's allies to invoke the 25th Amendment.
What is the purpose of the 25th Amendment?
The 25th Amendment, ratified in 1967 and adopted in the wake of the assassination of President John F. Kennedy in 1963, concerns presidential succession and incompetence.
Section 4 concerns situations where the President is unable to perform his duties but does not voluntarily leave his post.
The 25th Amendment's lawmakers clearly intended it to apply when a president is deemed incompetent because of physical or mental illness, according to experts. Some academics have also argued that it can be applied more widely to a president who is dangerously unfit for that position.
In order to invoke the 25th Amendment, Pence and the majority of Trump's cabinet members will have to declare that Trump is unable to carry out the president's duties and remove him. Based on this scenario, Pence takes over as president.
Trump can then declare that he can take office again. If Pence and a majority of cabinet members do not oppose Trump's decision, then he regains power. If they oppose Trump's statement, the matter will be settled by Congress, but Pence will continue to act as president until then.
Removing Trump requires a two-thirds majority in both chambers. But the Republican-controlled House of Representatives may simply delay voting on the issue until Trump's term ends, said Paul Campos, a professor of Constitutional Law at the University of Colorado.
Campos said the 25th Amendment would be an appropriate way to remove Trump from office and has the advantage of being quicker than his referral.
"Pence can immediately become president, and indictment and sentencing will take at least a few days," Campos said.
Can Trump be indicted and removed from office?
Yes.
One misconception about "referral" is that it refers to the removal of the president from his post. In fact, the indictment concerns only the fact that the House of Representatives, the lower House of Congress, is indicted against a president involved in a "serious crime or misconduct" -- respectively by referring to a criminal case.
If a simple majority of the 435 members of the House of Representatives approves the indictment, known as "articles of reference", the procedure is referred to the Senate, the upper house, which is holding a trial to decide whether or not to find the president guilty. The Constitution requires two-thirds of the Senate vote for a president to be convicted and removed from office.
Trump has previously been indicted by the Democratic-controlled House of Representatives in December 2019 on charges of abuse of power and obstruction of Congress over his efforts to pressure Ukraine to conduct an investigation against Biden and his son. Trump was acquitted of the charges by the Republican-controlled Senate in February 2020.
What "serious crime and misconduct" can Trump be charged with?
Frank Bowman, a professor of Constitutional Law at the University of Missouri, said Trump "could be said to have insppled the rebellion" or an attempt to overthrow the Us government.
But Bowman said Trump could also be indicted for a more general offense: disloyalty to the U.S. Constitution and violating the oath he took when he became president. Congress has the ability to determine what constitutes serious crime and misconduct and is not limited to actual criminal offenses.
"The real offence will be against the Constitution --that of essentially trying to undermine the results of a legitimately conducted electoral process," Bowman said.
Source: RES- ICM
