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.

Impeachment

The U.S. House of Representatives may impeach government officials, including the president.

Passing articles of impeachment is roughly analogous to a grand jury making an indictment or a district attorney filing charges. A trial is then held by the U.S. Senate, which acts like a jury. The Chief Justice of the U.S. Supreme Court presides over the Senate in impeachment trials.

If two-thirds of the senators vote to convict, the impeached official is removed from office and may be disqualified from holding any future office.

Constitutional Basis

Several clauses of the U.S. Constitution establish the parameters of impeachment:

The House of Representatives . . . shall have the sole Power of Impeachment.

Article I, Section 2, Clause 5 (excerpt)

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

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 the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article I, Section 3, Clauses 6-7

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article II, Section 4

Impeachable Offenses

Article II, Section 4, of the U.S. Constitution establishes the offenses that are subject to impeachment: “Treason, Bribery, or other high Crimes and Misdemeanors.” Of these, only treason is clearly defined in the constitution itself:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Article III, Section 3, Clause 1

Bribery is self-explanatory, but “high Crimes and Misdemeanors” is much more vague and open to interpretation. What is clear is that we are talking about a tool that is meant to be used in serious criminal cases. Impeachment is not a political bludgeon to be invoked when we don’t like a president or something the president said or did, nor is it to be used for minor, inconsequential offenses.

An impeachment article is only constitutionally valid if it articulates an actual violation of law . . . a crime. That much is clear from the text.

It is less clear about what specific kinds of crimes are serious enough. Obviously jaywalking is not impeachable, and obviously murder is, but there is a wide range of crimes in-between. The best and clearest way to think about it is this: If a crime is a felony that would include prison time upon conviction in the courts, then it is serious enough to warrant impeachment.

When to Charge and Convict

Impeachment is relatively rarely used and has a lot of gray areas, but it has parallels in the “normal” criminal justice system. We should draw on them.

When considering whether to pass articles of impeachment, the House of Representatives should consider many of the same things that a grand jury or prosecutor should. Was an actual crime committed? What statutes should we use in making our charges? Is there sufficient evidence to make a case that could convince a jury? If a strong case cannot be made, articles should not be passed.

In the Senate, the criteria for conviction is basically the same as for a jury in a criminal trial. If a senator is convinced that a crime was committed, and that the impeached official is guilty beyond a reasonable doubt, they should vote to convict . . . unless the crime is so minor that it does not warrant impeachment.

2019 Articles of Impeachment

The House of Representatives voted on December 18, 2019, to pass two articles of impeachment against President Donald Trump (R). On February 6, 2020, the Senate voted to acquit on both articles.

Both articles related to an alleged attempt by Trump to solicit foreign interference in the 2020 presidential election.

Article 1: Abuse of Power

In all of this, President Trump abused the powers of the Presidency by ignoring and injuring national security and other vital national interests to obtain an improper personal political benefit. He has also betrayed the Nation by abusing his high office to enlist a foreign power in corrupting democratic elections.

House Resolution 755, Article I (excerpt)

Article 1 alleged that Trump and his agents in the U.S. government “corruptly solicited” the government of Ukraine to publicly investigate former Vice President Joe Biden (D) (who is, at the time of this writing, the president-elect) and a theory that Ukraine interfered in the 2016 presidential election, and made the release of security assistance funds contingent on these investigations.

The first and most obvious flaw in this article is that it alleges that Trump solicited a Ukrainian investigation into Joe Biden, when the phone call in question dealt with a proposed investigation into alleged malfeasance by Biden’s son, Hunter Biden, who is not the same person. So the allegation is factually inaccurate on its face and could be dismissed on that basis.

Even if we put that aside, it is not uncommon (or illegal) for U.S. administrations to make foreign aid contingent on some action by a country’s government. Joe Biden himself bragged that he, as vice president, had used a threat to withhold aid to force Ukraine to fire its prosecutor general. So whether Trump’s pressure was impeachable depends on two factors: First, was there an actual “quid pro quo” arrangement? And second, what was the intent?

No evidence presented in the article or in the proceedings in the House or Senate established that an actual “quid pro quo” arrangement was made. None is recorded in the official summary of the call between Trump and Ukraine President Volodymyr Zelensky, and both Trump and Zelensky denied having any such understanding. Ukraine did not investigate Hunter Biden and received its aid anyway, albeit after a brief but unusual delay. If an impeachable “quid pro pro” existed, there is insufficient evidence to prove it beyond a reasonable doubt.

If there were, we would still have to prove criminal intent. It is possible, even likely, that Trump was attempting to score political points by agitating for an investigation of Hunter Biden. But there is also evidence of malfeasance by Hunter Biden. Ukrainian gas company Burisma likely hired Hunter Biden to serve on its board only to curry favor with Joe Biden, who was Vice President of the United States at the time. So it is at least possible that Trump and other officials thought there was real corruption that needed a real investigation . . . because it did. It still does.

In conclusion, Article 1 was factually inaccurate and should have been dismissed on that basis. If the article had been corrected, there was still insufficient evidence that an actual abuse of power (i.e., a “quid pro quo”) occurred or that it did not have a legitimate motive. Even if a crime did occur, it was not proven beyond a reasonable doubt so it was right for the Senate to acquit.

(Article 1 passed in the House of Representatives on a 230-197-1 vote. Trump was acquitted in the Senate on a 52-48 vote.)

Article 2: Obstruction of Congress

In all of this, President Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.

House Resolution 755, Article II (excerpt)

During the congressional investigations relating to the events discussed above, Trump and his executive agencies repeatedly refused to comply with subpoenas for documents and testimony. This was truly unprecedented, as the article itself pointed out: “In the history of the Republic, no President has ever ordered the complete defiance of an impeachment inquiry. . . . “

The U.S. Congress has an executive oversight responsibility, and it may issue subpoenas to the executive branch. The House of Representatives, specifically, also has an authority to investigate alleged impeachable acts by “The President, Vice President and all civil Officers of the United States.” We can quibble about the appropriateness of this particular investigation, but the extent of House authority is clear.

The executive branch must either respond to congressional subpoenas or challenge their validity in court. It cannot just ignore them.

If it responds, or if the court compels a response after hearing a challenge, there are still options. For document subpoenas, the executive branch can assert that the documents are protected by executive privilege. For testimony subpoenas, the subpoenaed official must appear for questioning but may refuse to answer specific questions by asserting executive privilege or invoking their Fifth Amendment right against self-incrimination.

On Congress’s side, it too has recourse to the courts if it finds itself in conflict with the executive branch. It can challenge the assertion of executive privilege. And, in this particular case, it could have (and should have) challenged the executive branch’s refusal to respond at all.

The Trump administration was out-of-line in its refusal to respond to congressional subpoenas, but the House did not challenge that refusal in the courts. Had they done so, it is likely that the U.S. Supreme Court would have ruled in their favor. That alone might have compelled executive branch cooperation. But in the absence of any such ruling, and in the absence of any precedent, it is not clear that any crime was committed. In any case, the House did not take the necessary and appropriate legal steps to challenge the administration before resorting to impeachment.

In conclusion, Article 2 was procedurally invalid. The conflict between the legislative and executive branches over subpoena power had to be brought by the House to the Supreme Court. If the Supreme Court ruled against the president and he continued his noncompliance, only then would it become an impeachable offense. It was right for the Senate to acquit.

(Article 2 passed in the House of Representatives on a 229-198-1 vote. Trump was acquitted in the Senate on a 53-47 vote.)

2021 Article of Impeachment

The House of Representatives voted on January 13, 2021, to pass one article of impeachment against President Donald Trump (R). At the time of this writing, it has not yet been considered by the Senate.

The article alleges that Trump incited an insurrection when he spoke to protestors at a rally on January 6, 2021. During the rally, some Trump supporters rioted and stormed the U.S. Capitol.

Article 1: Incitement of Insurrection

In all of this, President Trump gravely endangered the security of the United States and its institutions of government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coordinate branch of government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States.

House Resolution 24, Article I (excerpt)

In the 2020 presidential election, Trump, who was running for reelection, was challenged by former Vice President Joe Biden (D). Biden won with a 306-232 electoral majority. Trump has claimed that the election was stolen and that widespread voter fraud in multiple states changed the outcome. In fact, Pennsylvania is the only state where the result can be questioned . . . and, even if it were overturned, it would not be enough to change the outcome of the race.

On January 6, 2021, the U.S. Congress met in joint session to count and certify the votes of the Electoral College. Around the same time, Trump and his supporters held a rally to protest Biden’s win. Trump addressed the rally outside the White House where he made numerous false claims about the election and advocated a baseless theory that Vice President Mike Pence (R), acting as the president of the Senate, could unilaterally prevent or change the process of counting of the electoral votes.

Some rally participants had made their way to the U.S. Capitol where things rapidly escalated. While Trump was still speaking at the White House, rioters breached the Capitol barricades and soon they had violently stormed of the building. The session was halted. The vice president and congressmen were rushed to secured areas. In the end, the building was badly vandalized, one rioter was dead, many law enforcement officers were seriously injured (one would later die), and the whole nation was in shock.

Trump badly mismanaged the riot and its aftermath. He deserves most of the public condemnation he has received. But, as described above, “Impeachment is not a political bludgeon to be invoked when we don’t like a president or something the president said or did. . . . ” It is meant for crimes. So we must not get hung up on how much we like or dislike what Trump did on January 6. We must analyze the facts from a legal perspective and determine if any of his acts were criminal.

The impeachment article asserts that Trump “willfully made statements that encouraged—and foreseeably resulted in—imminent lawless action at the Capitol.” But, notably, it does not quote any of those statements. The only quote in the entire article from Trump’s address is the president’s false claim that “we won this election, and we won it by a landslide.”

Trump’s address that day was typical and rambling . . . but at no point did he call for violence. He called for strength, for “pride and boldness,” and so on, but he explicitly said that the people marching to the Capitol should “peacefully and patriotically make [their] voices heard.” Yes, some in the crowd were mad and fired up and itching for violence. Trump’s rhetoric did not help calm the situation. But it was not incitement in any meaningful way. Additionally, violence at the Capitol began concurrently with Trump’s speech so there is no clear causal relationship between the speech and the riot.

In conclusion, 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.

(Article 1 passed in the House of Representatives on a 232-197 vote. At the time of this writing, it has not yet been considered by the Senate.)

Section 4 of the 25th Amendment

The vice president and a majority of the cabinet secretaries may notify Congress in writing that the president is unable to discharge his duties. After doing this, the vice president immediately becomes the acting president.

The president may transmit his own declaration that no inability exists and resume his duties.

If the vice president and a majority of cabinet secretaries reiterate their notification of inability, Congress must take up the issue and may vote by a two-thirds majority in both houses to keep the vice president in place as acting president.

Constitutional Basis

The above power is described in Section 4 of the Twenty-Fifth Amendment to the U.S. Constitution:

Whenever 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, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Twenty-Fifth Amendment, Section 4

Purpose and Context

The U.S. Constitution was somewhat vague about how to deal with the president’s removal, death, or inability. Basically, all it said was that in the event that those things happen, the vice president gets the “powers and duties” of the office:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President . . .

Article II, Section 1, Clause 6 (excerpt)

This clause raises more questions than it answers. It is probably the least well thought-out part of an otherwise brilliant document. If a president dies or is removed, does the vice president become the president or does he remain vice president but now with the “powers and duties” of the president? What, exactly, is an “inability to discharge the powers and duties” and who decides if a president has such an inability?

The clause was first tested in 1841 when President William Henry Harrison (W) died in office. His vice president, John Tyler (W), asserted that he had become the president, not just the acting president, upon Harrison’s death. Tyler moved into the White House and took the title. Congress adopted a resolution acknowledging Tyler as president and, until the Twenty-Fifth Amendment was ratified in 1967, we operated on nothing more than the Tyler precedent every time a president died in office.

The question of “inability” remained a thorny problem.

In 1919, President Woodrow Wilson (D) suffered a debilitating stroke. For weeks he was confined to his bed and isolated, and for more than a year he continued in office at limited capacity. Edith Wilson, the first lady, managed the office of the president and served as a kind of unofficial acting president. President Dwight D. Eisenhower (R) had significant health problems and several periods of inability during his time in office. President John F. Kennedy (D) was assassinated in 1963, and for a brief period before his death it seemed possible that we would have a president who was alive on life support, but unconscious and unlikely to ever recover.

In none of these cases was the constitution’s “inability” clause invoked, since it was never clear who could invoke it or how legitimately that invocation would be viewed by the Congress or the people.

These were the main events that motivated the drafting of the Twenty-Fifth Amendment. The first and second sections codify the Tyler precedent and allow the new president to appoint a vice president. The third section provides a method for a president to declare his own inability. The fourth section provides a method for the vice president and a majority of the cabinet secretaries to declare a president unable.

Understanding the Word “Unable”

The text of the U.S. Constitution should be interpreted according to what it actually says, not according to what we would like it to say. When the text is not clear, we can look to secondary sources and historical context to help us understand what was written and why, but that is the extent of it.

Section 4 of the Twenty-Fifth Amendment allows the vice president and a majority of the cabinet secretaries to declare that “the President is unable to discharge the powers and duties of his office . . . ,” after which the vice president becomes the acting president. A plain-text reading of this clause tells us that it is meant to be invoked when a president can’t perform his duties, not when he doesn’t perform them or when he performs them poorly.

The historical context and the reasons for its drafting and adoption reinforce this view. Congress was looking at situations where a president was incapacitated due to serious injury or illness. It could also apply in extreme and unusual circumstances like an abduction or a serious mental breakdown. The clause dealing with a situation where a president claims to be able was included to handle situations like Wilson’s stroke, where he was seriously debilitated but well enough that he might still have disputed it.

This mechanism should only be invoked when a president is suffering some impairment that makes him truly unable to perform his duties. It is not an appropriate remedy for dealing with a president who does something dumb, offensive, or counterproductive, or just fails to take some action we think he should.

Possible Use Against Trump

In the aftermath of the riots of January 6, 2021, and the storming of the U.S. Capitol, some political observers have advocated the use of Section 4 of the Twenty-Fifth Amendment to transfer the powers and duties of the presidency from President Donald Trump (R) to Vice President Mike Pence (R).

There is no publicly available evidence supporting the assertion that Trump is unable to perform his duties, which is the only situation in which a Section 4 transfer of power is appropriate. To use this power against Trump because of his failure to act properly in response to the siege of the Capitol would be unconstitutional.

One could argue that Trump is suffering from some kind of serious mental illness or breakdown, but that is just speculation. If this were the case, it would need to be carefully documented with clinical diagnoses, proven beyond reasonable doubt, and the details of the determination would need to be made public. “This guy seems a bit nuts” is not sufficient reason to justify deposing a president, even temporarily.

In conclusion, unless evidence can be produced demonstrating that Trump is unable to perform his duties due to serious physical or mental impairment, Vice President Pence should not invoke the Twenty-Fifth Amendment.