When the U.S. House of Representatives voted to impeach former President Donald Trump (R) on a charge of “incitement of insurrection,” it set us up for a new constitutional conundrum that I did not address in my previous analysis. At the time, when Trump was still president, I looked at what impeachment is, how it should be used, and the charge itself. I concluded, for reasons described in depth there:

Article 1’s accusation is not supported by the evidence. Trump’s speech contained no actual incitement to violence or insurrection, and the storming of the Capitol cannot be proven to be causally related. The Senate should acquit.

Trump, Impeachment, and the 25th

Because the House voted to impeach, the U.S. Senate would normally take it up and hold an impeachment trial under the established process. We’ve used it three times before—against President Andrew Johnson (D), President Bill Clinton (D), and Trump after his first impeachment. What makes this time unique is that Trump’s term is over; he is no longer president.

Now we have to answer a new constitutional question: Can we put a former president on trial?

. . . Continued

Tyler Merbler (CC BY 2.0)

In December 2019, the U.S. House of Representatives voted to impeach President Donald Trump (R) on charges of abuse of power and obstruction of Congress. After an inexplicable delay, the articles were eventually submitted to the U.S. Senate, which voted in February 2020 to acquit on both counts.

My intention had been to seriously review the articles well before the Senate took them up. I was going to produce an analysis similar to the one I produced on the question of whether the Mueller report revealed any obstruction of justice by Trump. I had it outlined and had gotten part-way into it, but then there was a death in the family, other things came up, and before I got everything back in order COVID-19 happened. And by the time I got everything back in order again, the news cycle had long passed me by and impeachment was but a distant memory . . . or so I thought.

I still planned to come back to it. It needs the analysis and consideration that I never had time to give to it. But now, in the waning days of the Trump presidency, he has been impeached again (in the wake of the siege at the Capitol), and there has been serious political discussion of invoking the Section 4 of the Twenty-Fifth Amendment to remove Trump from office. So here we are again.

First, I’m going to handle impeachment. I’ll explain the conditions under which it should be used, and review, in turn, the two articles of impeachment from 2019 and the one that was passed by the House of Representatives earlier today.

Second, I am going to handle Section 4 of the Twenty-Fifth Amendment. I’ll explain the conditions for its use and whether or not recent events would justify it being invoked against Trump.

. . . Continued

C-SPAN

The United States House of Representatives has voted to impeach President Donald Trump (R) a second time. The House cast votes this afternoon on one article of impeachment alleging that Trump incited an insurrection when he spoke to supporters on January 6, 2021. Some of those supporters rioted and stormed the U.S. Capitol.

The 232-197 vote was largely along party lines. Among those who voted, all House Democrats voted to impeach, and all but ten Republicans voted against. Four members, all Republicans, were not present or did not cast votes.

Trump was impeached on other charges in 2019, and is the first president to have been impeached multiple times. Only two previous presidents have been impeached—President Andrew Johnson (D) in 1868 and President Bill Clinton (D) in 1998. Both were acquitted in Senate trials, and no president has ever been removed from office. Articles of impeachment against President Richard Nixon (R) passed the House Judiciary Committee in 1974 but Nixon resigned before they could be considered by the full House.

The U.S. Senate holds impeachment trials, which are presided over by the Chief Justice of the U.S. Supreme Court. It would require a vote by a two-thirds super-majority of senators to convict and remove the president from office. Trump’s term in office ends at noon on January 20, and it is unclear if an impeachment trial can be held after the subject of the impeachment is no longer in office.

How did we get here? Come on. Don’t be silly. You know how we got here.

The blame for today’s reprehensible events at the U.S. Capitol lays primarily at the feet of the criminals and terrorists who stormed and vandalized the building. They chose to do what they did, and should be prosecuted to the full extent of the law. But there are others who bear at least some responsibility for getting America to where it is today.

An obvious candidate for scorn is President Donald Trump (R), who continues to claim—falsely—that his reelection was stolen by widespread voter fraud. Oh, there was fraud, as there is in every election, but it was not enough to change the result. The only state where the outcome is really in question is Pennsylvania, and it alone would not be enough to give Trump a win. President Trump, you contributed to this outrage.

But he is not alone.

. . . Continued

A special election will be held on January 5 to fill vacancies in the 2nd and 90th districts of the Virginia House of Delegates. I make the following recommendations in those races:

  • 2nd District: Former Delegate Carol Foy (D-VA 2nd) resigned in December to focus on her gubernatorial campaign. Candi King (D) and Heather Mitchell (R) stand as candidates to replace her. I recommend voting for Heather Mitchell.
  • 90th District: Former Delegate Joseph Lindsey (D-VA 90th) resigned in November after being appointed as a state judge. Sylvia Bryant (R) and Norfolk City Councilwoman Angelia Graves (Superward 7), who is running as a Democrat, stand as candidates to replace him. I recommend voting for Sylvia Bryant.