How to Depose a President: Let Me Count the Ways.

North side of the White House from Lafayette Park.

Impeachment:

In a previous blog post, I posted a video by Robert Reich on the 10 steps necessary to impeach a president. Watch that video here.

And let’s just remember for a moment that voting for articles of impeachment is just one of the many steps involved in that process. After articles of impeachment have been agreed upon, there is a trial in the Senate and before a president may be impeached based on articles of impeachment, he must be convicted on one or more of those articles of impeachment. No president in United States history has ever been convicted on an article of impeachment, and only 2 presidents have been impeached, Bill Clinton and Andrew Johnson in 1879.

It is a long difficult process on purpose.

Pursuant to Section 4 of Article Two of the United States Constitution: “The PresidentVice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, TreasonBribery, or other high Crimes and Misdemeanors.”

Exactly what constitutes a “high crime or misdemeanor” has long been a topic of much discussion among legal, constitutional scholars. Generally, according to an article on Wikipedia, they are defined as:

. . . allegations of misconduct peculiar to officials, such as perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty, unbecoming conduct, and refusal to obey a lawful order. Offenses by officials also include ordinary crimes, but perhaps with different standards of proof and punishment than for nonofficials, on the grounds that more is expected of officials by their oaths of office.

. . .

“High” in the legal and common parlance of the seventeenth and eighteenth centuries of “high crimes” signifies activity by or against those who have special duties acquired by taking an oath of office that are not shared with common persons.[1] A high crime is one that can only be done by someone in a unique position of authority, which is political in character, who does things to circumvent justice. The phrase “high crimes and misdemeanors” when used together was a common phrase at the time the U.S. Constitution was written and did not mean any stringent or difficult criteria for determining guilt. It meant the opposite. The phrase was historically used to cover a very broad range of crimes.[2]

Way back on April 6, 2017, economist Robert Reich opined that there were at least 4, and maybe 5, potential articles for impeachment. They included:

  • violating article 2 section 2 of the U.S. Constitution by failing to faithfully execute the laws and the Constitution, pursuant to his oath of office, by claiming, without any proof whatsoever, that former President Barack Obama committed impeachable offenses;
  • that he is taking things of value from foreign governments in violation of article 1 section 9 of the Constitution by receiving bundles of money from foreign delegations who are steered to his Trump international Hotel in Washington DC, and from China’s recent approval of the Trump trademark in China;
  • that he violated the establishment clause in the First Amendment to the Constitution which prohibits any law respecting the establishment or abridgment of religion by imposing a ban on Muslims from 7 different countries in favor of Christian immigrants from those countries;
  • violated the First Amendment which bars any laws abridging the freedom of the press by calling the press the enemy of the people (in my opinion, this one is truly a stretch);
  • and finally violating Article II Section 3 of the Constitution which defines “treason against the United States” as “adhering to their enemies, giving them aid and comfort” according to mounting evidence that Trump and his aides colluded with Russian operatives to win the 2016 presidential election. 

To be sure, Mr. Reich is an avowed liberal and no fan of the current president. As I said I am no constitutional scholar, but as a trial attorney I’m not sure I would want to take any of his proposed articles for impeachment before a jury, much less to a Republican controlled House of Representatives and Senate.

Nevertheless, just yesterday the Washington Post reported that the president himself dictated the memo explaining juniors meeting with the Russian lawyer so that it would have as little importance as possible notwithstanding the fact that Jared Kushner’s legal team wanted to be as transparent as possible, stating:

The president dictated the statement to Hicks [aboard Air Force One, as they returned from the G20 Summit], who served as a go-between with Trump Jr., who was not on the plane, sharing edits between the two men, according to people with knowledge of the discussions.

To me, this gets really close to obstruction of justice when taken together with his previous actions which include firing FBI Director James Comey.

The 25th Amendment to the US Constitution:

If anyone recalls from their social studies class in high school, we pretty much know that the 25th Amendment is the one that is invoked when the president is unable, usually for a short period of time, to discharge his official duties, like when Ronald Reagan was in the hospital after the failed assassination attempt. And for most of us our understanding of the 25th Amendment stops there.

But it goes much further. Wikipedia has a rather full discussion of the process.

Section 4 of the Amendment allows the Vice President, together with a “majority of either the principal officers of the executive departments or of such other body as Congress may by law provide”, to declare the President “unable to discharge the powers and duties of his office” by submitting a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives. As with Section 3, the Vice President would become Acting President.

Section 4 is meant to be invoked should the President’s incapacitation prevent him from discharging his duties, but he is unable or unwilling to provide the written declaration called for by Section 3.

The President may resume exercising the Presidential duties by sending a written declaration to the President pro tempore and the Speaker of the House. But if the Vice President and Cabinet feel the president is still disabled, they can, in a sense, appeal to the House and Senate which has a short, set time frame to act. Section appears to possibly be a bit of a revolving door, but it would seem that if the president says he’s okay, the VP and Cabinet appeal and the Congress finds in their favor, the matter would seem to be over and the VP becomes President.

Could there be grounds for utilizing the 25th Amendment to remove the president from office?

Just last week, the Washington Post reported that Senators Collins and Reid had been caught discussing the president on an open mic, apparently unaware that it was open. According to the post, the Senators were over heard saying

“I swear, [the Office of Management and Budget] just went through and whenever there was ‘grant,’ they just X it out,” Collins says. “With no measurement, no thinking about it, no metrics, no nothing. It’s just incredibly irresponsible.”

“Yes,” Reed replies. “I think — I think he’s crazy,” apparently referring to the president. “I mean, I don’t say that lightly and as a kind of a goofy guy.”

“I’m worried,” Collins replies.

“Oof,” Reed continues. “You know, this thing — if we don’t get a budget deal, we’re going to be paralyzed.”

Pretty strong stuff. I don’t think there can be much argument as to what the Senators were talking about. A written transcript of the entire conversation and an audio recording can be found at the Washington Post link above.

And then just yesterday, our friend Robert Reich posted a conversation he had with an acquaintance who is a former Republican member of Congress. Excerpts from that post follow. You can read the entire conversation here.

Me: Seriously, what are you hearing from your former colleagues on the Hill?

Him: They’re convinced Trump is out of his gourd.

Me: So what are they gonna do about it?

Him: Remember what I told you at the start of this circus? They planned to use Trump’s antics for cover, to get done what they most wanted – big tax cuts, rollbacks of regulations, especially financial. They’d work with Pence behind the scenes and forget the crazy uncle in the attic.

. . .

Him: Lots think he’s fritzing out.

Me: Fritzing out?

Him: Going totally bananas. Paranoia. You want to know why he fired Priebus, wants Sessions out, and is now gunning for Tillerson?

Me: He wants to shake things up?

Him (chuckling): No. The way I hear it, he thinks they’ve been plotting against him.

Me: What do you mean?

Him: Twenty-fifth amendment! Read it! A Cabinet can get rid of a president who’s nuts. Trump thinks they’ve been preparing a palace coup. So one by one, he’s firing them.

Me: I find it hard to believe they’re plotting against him.

Him: Of course not! It’s ludicrous. Sessions is a loyal lapdog. Tillerson doesn’t know where the bathroom is. That’s my point. Trump is fritzing out. Having manic delusions. He’s actually going nuts.

Yeah, fun to think about, but what are the chances that either option will be utilized? But there is a THIRD OPTION.

VOTE

Get up off your butts and go to the ballot box and cast your vote–in every election where you have the opportunity to elect a liberal, progressive, Democrat or Independent candidate between now and 2020–at every level: local, state and national.

And once in a while, turn off the news, don’t check your Facebook or Twitter feeds. Go to a concert, watch a movie, listen to music, cook your favorite meal.

As for me? I’m off to walk the dogs!

In case you were wondering . . .

 

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