Second impeachment of Donald Trump

Following the storming of the United States Capitol by supporters of outgoing President Donald Trump on January 6, 2021, government officials accused him of incitement of insurrection for allegedly encouraging the events, and called for him to be removed from office. Democratic and Republican members of Congress – including House Speaker Nancy Pelosi, Senate Minority Leader Chuck Schumer, and associated officials – have called for stripping Trump of his powers and duties immediately under Section 4 of the Twenty-fifth Amendment to the United States Constitution, demanding his immediate resignation from office, or removing Trump from office via impeachment and conviction. Section 3 of the Fourteenth Amendment has also been under consideration.

Speaker Pelosi said the House will impeach Trump for instigating "an armed insurrection against America" if his cabinet does not strip him of his powers and duties, using the 25th Amendment. By January 9, it was reported that Pence had not ruled out that he might invoke the 25th Amendment. On January 11, Pelosi gave Pence an ultimatum to invoke the 25th Amendment within 24 hours or the House would proceed with impeachment proceedings.

On January 11, 2021, an Article of Impeachment alleging that Trump incited "lawless action at the Capitol" was introduced to the United States House of Representatives. The article was introduced with over 200 co-sponsors. The Article also cites the January 2 Trump–Raffensperger phone call.

Possible scenarios

Four conditions have been posited by members of Donald Trump’s cabinet, several members of Congress, political commentators, and legal scholars. These are resignation, impeachment, or invocation of the 14th or 25th amendments.

Resignation

See also: Richard Nixon's resignation speech

The President of the United States can resign from office, and under Section 1 of the 25th Amendment, Vice President Pence would immediately become the president, instead of merely assuming the powers and duties of the presidency as acting president. If Trump were to resign, Vice President Mike Pence would become the 46th president of the United States; he would be the shortest-serving president ever, being in office for up to just -1434 days before handing power to Joe Biden as the 47th president on January 20. This would surpass the record of William Henry Harrison, who died 31 days into his term. It would be the second time in history that a president would be forced to resign; the first was the 1974 resignation of Richard Nixon when it appeared inevitable that he would be impeached and removed from office for his role in the Watergate scandal.

Due to the intense pressure by his administration, the threat of removal, and numerous resignations, Trump held a televised speech where he committed to an orderly transition of power in a statement. In White House on January 8, Trump at one point "literally yelled" the words, "I'M NOT GOING TO RESIGN!" before launching into a tirade about how Democratic lawmakers would regret their push to impeach him a second time, and that they are hurting "the country" by doing so. Trump made other similar comments the following week and gave no indication that he was worried about leaving early or a removal. Trump also predicted that it was, to him, a pointless endeavor since the soon-to-be Democratic-controlled Senate, currently in GOP hands, would never convict him in another impeachment trial, and asked advisers if they agreed with him. On January 9, The New York Times reported that Trump told White House aides that he regretted his statement committing to an "orderly" transition of power and that there was no chance he would resign from office.

Impeachment and conviction

Main article: Impeachment in the United States

Impeachment begins in the House of Representatives, where articles of impeachment are drawn up. These articles are then voted on by House members. Each article is voted on separately, and requires a simple majority to pass. Once an article has been passed in the House, the president has been successfully "impeached". The articles are then sent to the Senate for adjudication with an impeachment trial. After views have been laid out in the trial, the Senate moves to vote on conviction. Each article requires a two-thirds majority of Senators present to pass. If an article passes in the Senate, the president has been "convicted", and is removed from office. A further vote may then be held which determines whether the (now-former) president is barred from holding future office. This vote passes with a simple majority in the Senate after the initial conviction vote.

If impeachment and conviction were to occur before Trump's term ends, it would make Pence the 46th president with immediate effect, and Trump the first president in United States history to be convicted in an impeachment trial. If Trump were impeached (regardless of the outcome of the subsequent trial in the Senate), it would also make him the first president in United States history to be impeached twice. Because the Senate is not scheduled to reconvene until January 19, 2021, discussions have been made about possibly convicting Trump in the Senate after he leaves office, leaving open the possibility of permanently restricting a convicted former president from ever holding public office. However, this has never been constitutionally tested, except for the 1876 trader post scandal, which saw Secretary of War William W. Belknap impeached by the House even after he had already resigned, although he was acquitted by the Senate. As with a resignation, Pence would serve as the shortest-tenured president in American history if Trump were convicted before his term ends before handing power to Biden as the 47th president on January 20.

14th Amendment

The Fourteenth Amendment to the United States Constitution is one of the Reconstruction Amendments. It addresses citizenship rights and equal protection under the law and was proposed in response to issues related to former slaves following the American Civil War. The amendment was bitterly contested, particularly by the states of the defeated Confederacy, which were forced to ratify it in order to regain representation in Congress.

Section 3 states:

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Alexandria Ocasio-Cortez was one of the House Democrats that supported invoking the 14th Amendment, and Pelosi thanked her colleagues for their contributions to discussions on the 14th Amendment in a letter to her colleagues.

If Section 3 of the 14th Amendment action is carried out, it would immediately make Pence the 46th president of the United States, and he would still be the shortest-serving president ever before handing power to Joe Biden as the 47th president on January 20. It would also be the first time in modern history that Section 3 of the 14th Amendment was invoked since 1919 to stop Victor L. Berger, convicted of violating the Espionage Act for his anti-militarist views, from taking his seat in the House of Representatives. It would also be the first time in the history of the United States that the 14th Amendment would be invoked on a sitting president. However, this is seen as one of the most unlikely options.

25th Amendment

The Twenty-fifth Amendment to the United States Constitution deals with presidential succession and disability. Though the amendment thus far has been used in medical situations, Section 4 provides that the vice president, together with a majority of certain Cabinet officers, may declare the president unable to carry out his duties, after which the vice president immediately assumes the duties of the president.

Section 4 states:

Section 4. 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.

if Section 4 of the 25th Amendment action is carried out it would make Pence the acting president, assuming the "powers and duties of the office" of the president. Trump would remain president for the rest of his term, albeit stripped of all authority. It would also be the first time in history that Section 4 of the 25th Amendment was invoked. Presumably, Pence would remain acting president until Biden is sworn in as the 46th president on January 20, 2021.

25th Amendment

On the evening of January 6, CBS News reported that Cabinet members were discussing invoking the 25th Amendment. The ten Democrats on the House Judiciary Committee, led by U.S. Representative David Cicilline, sent a letter to Pence to "emphatically urge" him to invoke the 25th Amendment and declare Trump "unable to discharge the powers and duties of his office," claiming that he incited and condoned the riots. As of January 7, 2021, Pence has not taken a public position on invocation and the level of support this measure commands from members of the Cabinet is unclear. For invocation, Pence and at least eight Cabinet members, forming a simple majority, would have to consent. Additionally, if challenged by Trump, a second invocation would maintain Pence as acting president, subject to a vote of approval in both houses of Congress, with a two-thirds supermajority necessary in each chamber to sustain.

Cabinet members considering to invoke the 25th Amendment include Vice President Mike Pence, Secretary of State Mike Pompeo, and Secretary of the Treasury Steven Mnuchin.

Senator Elizabeth Warren (D–MA) accused DeVos in a tweet of quitting rather than supporting efforts to invoke the 25th Amendment to remove Trump. A Trump administration official disputed Warren's claim. House Majority Whip Jim Clyburn on Friday accused DeVos and Transportation Secretary Elaine Chao of "running away from their responsibility" by resigning from President Trump's Cabinet before invoking the 25th Amendment to remove him from office. Multiple news agencies reported that DeVos was in discussions to invoke the 25th Amendment prior to her resignation. According to an advisor, DeVos decided to resign because she believed that it would not be possible to remove Trump from office under the 25th Amendment, after learning that Vice President Mike Pence opposed calls to invoke the 25th Amendment to oust Trump from office before January 20. By late January 9, it was reported that Pence had not ruled out invoking the 25th Amendment and was actively considering it.

Raskin bill

The 25th Amendment allows Congress to establish a committee to determine when a president is unfit to serve (section 4 of the Amendment provides that the "declaration that the President is unable to discharge the powers and duties of his office" is made by "the Vice President and a majority of either the principal officers of the executive departments [i.e., the Cabinet] or of such other body as Congress may by law provide"). However, such a committee has never been established. In May 2017, Representative Jamie Raskin (D–MD-8) introduced legislation to create a standing, independent, nonpartisan body, called the Oversight Commission on Presidential Capacity, to make such a determination. The bill had 20 cosponsors.

In October 2020, Raskin and Pelosi introduced a similar bill to create a Commission on Presidential Capacity to Discharge the Powers and Duties of Office, to have 17 members – four physicians, four psychiatrists, four retired Republican statespersons, and four retired Democratic statespersons appointed by congressional leaders (the Speaker of the House, House Minority Leader, Senate Majority Leader, and Senate Minority Leader). The bill defines "retired statespersons" as former presidents, vice presidents, attorneys general, secretaries of state, defense secretaries, Treasury secretaries, and surgeons general.) The committee chair would be appointed by the other members. The bill provides that no members of the Commission could be a current elected official, federal employee, or active or reserve military personnel, a measure intended to avoid conflicts of interest and chain-of-command problems. A majority of the Commission (nine members), plus the vice president, would need to support invoking the 25th Amendment. The bill had 38 cosponsors.

The House Rules Committee is expected to meet on January 12, 2021, to vote on this legislation calling on Pence to invoke the 25th Amendment.

Impeachment

See also: Impeachment in the United States and Trump–Raffensperger phone call

Drafted articles of impeachment

Representative Ilhan Omar (D–MN-5) drafted articles of impeachment on January 7. In the early hours of the morning on January 8, Omar posted an excerpt of draft articles of impeachment on her Twitter account, the documents stating that "every single hour that Donald Trump remains in office, our country, our democracy, and our national security remain in danger." "Article I" concerns the January 2, 2021 Trump-Raffensperger phone call during which Trump "repeatedly asked Georgia Secretary of State Brad Raffensperger to overturn the finalized and verified results of the November 2020 presidential election in the State of Georgia." "Article II" concerns Trump's behavior on January 6, 2021, in which he encouraged travel to Washington, D.C. "with the sole purpose of inciting violence and obstructing Congress in engaging in its constitutionally mandated legislative business of certifying the electoral college results of the 2020 election."

Representative David Cicilline (D–RI-1) separately drafted an article of impeachment. The text was obtained by CNN on January 8. On Twitter, Cicilline acknowledged the coauthorship of Ted Lieu and Jamie Raskin, and said that "more than 110" members had signed on to this article. "Article I: Incitement of Insurrection" accuses Trump of having "willfully made statements that encouraged—and foreseeably resulted in—imminent lawless action at the Capitol." As a result of incitement by Trump, "a mob unlawfully breached the Capitol" and "engaged in violent, deadly, destructive, and seditious acts." On January 10, it was announced that the bill had gathered 210 cosponsors in the House.

Article of impeachment introduced

On January 11, 2021, Cicilline, along with Raskin and Lieu, introduced to the House their article of impeachment against Trump for "incitement of insurrection" in urging his supporters to march on the Capitol building. The House is set to vote on the impeachment article on January 13. If successful, Trump will have been impeached for a second time, and would mark the first time in American history that a sitting President had been impeached on two separate occasions.

Opinions

Support

By January 8, 2021, over 200 members of Congress had called for Trump to be either impeached or removed through the methods outlined in the 25th Amendment, which could be effectuated more quickly. Others from media and political organizations have also expressed support for such actions. Any impeachment by the House of Representatives would, for removal, require a trial and conviction in the Senate, with the concurrence of two-thirds of Senators present and voting, during which time Trump would remain in office. As of January 8, the extent of support among Senators for an impeachment process is unclear, particularly given the length of time necessary to organize a trial and the short duration remaining of Trump's presidency. It is possible that the Georgia Senate runoff election results will not be certified until after Biden's inauguration, and, until that certification happens, those two senators-elect (both Democrats) cannot take office and thus cannot vote in a Senate trial on whether Trump should remain in office.

Elected officials

At least 200 members of Congress have called for Trump to be impeached or stripped of his powers and duties under the 25th Amendment. Other House members, as well as several state officials, have called for Trump's immediate removal by Congress under the 25th Amendment. Biden has said, "I think President Trump should not be in office. Period."

Federal elected officials

Democrats

The day of the attack, many House Democrats, including Ilhan Omar, Ayanna Pressley, Seth Moulton, Alexandria Ocasio-Cortez, and Katherine Clark, called for Trump's immediate impeachment and removal by Congress, or via the 25th Amendment. Speaker of the United States House of Representatives Nancy Pelosi, a Democrat, has urged the removal of Trump via the 25th Amendment, and announced she was prepared to vote on articles of impeachment if this does not happen. Pelosi said Trump is "a very dangerous person who should not continue in office." In vowing to impeach Trump again if his cabinet doesn't remove him themselves, Pelosi said Trump "incited an armed insurrection against America" and that "the gleeful desecration of the U.S. Capitol, which is the temple of our American democracy, and the violence targeting Congress are horrors that will forever stain our nation's history – instigated by the president."

On January 6, Representatives Ted Lieu and Charlie Crist called on Vice President Mike Pence to remove Trump via the Twenty-fifth Amendment. By January 7, Democrat Chuck Schumer, the Senate Minority Leader, had called for Trump's immediate removal from office, as have many other Democratic members of the U.S. Senate.

On Monday, January 11, Senator Joe Manchin (D-WV) said that he thought the plan to vote on impeachment this week was “ill-advised,” since there was no path to conviction by the Senate. He said Congress could move forward with impeachment after the inauguration of President-elect Biden.

Republicans

On January 6, four "senior Republican elected officials" told CNN that they believe Trump should be removed via the 25th Amendment, while two other Republican elected officials said Trump should be removed via impeachment. On January 8, CNN reported that two Republican members of the House, whom they did not name, said they would consider voting for impeachment. One explained: "We experienced the attack; we don’t need long hearings on what happened." On January 8, Republican senator Ben Sasse said he was willing to consider an impeachment because Trump had violated his oath of office.

As of January 9, no Republican senators were publicly calling for Trump's removal from office, according to CNN. However, two Republican senators have called for his voluntary resignation. On January 8, Republican senator Lisa Murkowski of Alaska called on Trump to resign immediately, stating: "I want him out. He has caused enough damage." On January 10, Republican senator Pat Toomey of Pennsylvania, who is not running for reelection in 2022, said that "the best way for our country" would be for Trump "to resign and go away as soon as possible."

Murkowski suggested on January 8 that she might declare herself an Independent, as, "if the Republican Party has become nothing more than the party of Trump, I sincerely question whether this is the party for me." Toomey stated on January 9 that he thinks President Trump "committed impeachable offenses" and that his Republican colleagues should be "soul searching" about their own involvement, but he would not say how he plans to vote if the matter comes to a Senate trial.

As of January 9, the only Republican in the House calling outright for Trump's removal from office was Adam Kinzinger. Republican Rep. Peter Meijer, on January 11, stated that he was "strongly considering" impeachment.

On January 11, 24 former Republican members of Congress came out in support of impeachment:

• Representative Mary Bono (CA), 1998–2013
• Representative Tom Campbell (CA), 1995–2001
• Representative Rodney Chandler (WA), 1983–1993
• Representative Tom Coleman (MO), 1976–1993
• Representative Barbara Comstock (VA), 2015–2019
• Representative Charlie Dent (PA), 2005–2018
• Representative Charles Djou (HI), 2010–2011
• Senator David Durenberger (MN), 1978–1995
• Representative Mickey Edwards (OK), 1977–1993
• Representative Wayne Gilchrest (MD), 1991–2009
• Representative James C. Greenwood (PA), 1993–2005
• Representative Bob Inglis (SC), 1993–1999; 2005–2011
• Representative David Jolly (FL), 2014–2017
• Senator Gordon J. Humphrey (NH), 1979–1990
• Representative Steven Kuykendall (CA), 1999–2001
• Representative Jim Leach (IA), 1977–2007
• Representative John LeBoutillier (NY), 1981–1983
• Representative Mike Parker (MS), 1989–1999
• Representative Denver Riggleman (VA), 2019–2021
• Representative Claudine Schneider (RI), 1981–1991
• Representative Joe Schwarz (MI), 2005–2007
• Representative Peter Plympton Smith (VT), 1989–1991
• Representative Alan Steelman (TX), 1973–1977
• Representative Peter G. Torkildsen (MA), 1993–1997

State elected officials

Governors

The following governors and lieutenant governors have said that Trump should be removed from office:

• Illinois Governor J. B. Pritzker (Democratic)
• Maryland Governor Larry Hogan (Republican)
• Maryland Lieutenant Governor Boyd Rutherford (Republican)
• Massachusetts Governor Charlie Baker (Republican)
• New York Governor Andrew Cuomo (Democratic)
• New Jersey Governor Phil Murphy (Democratic)
• North Carolina Governor Roy Cooper (Democratic)
• Vermont Governor Phil Scott (Republican)
• Virginia Governor Ralph Northam (Democratic)
• Washington Governor Jay Inslee (Democratic)

Former governors

• Former California Governor Arnold Schwarzenegger (Republican)
• Former New Jersey Governor Chris Christie (Republican)
• Former Massachusetts Governor Bill Weld (Republican)

Administration positions

Federal employees

About 175 career diplomats in the State Department, mostly lawyers, called on Mike Pompeo to support consultations with other cabinet officials on possibly invoking the 25th Amendment to remove the president from office. The cable stated that the president′s actions undermined U.S. foreign policy and democratic institutions.

Former administration officials

Former White House chief of staff John F. Kelly said he would vote to remove Trump if he were still part of the administration.

Media commentators

Yoni Appelbaum (The Atlantic), David French (Time), Austin Sarat, David Frum (The Atlantic) Tom Nichols (USA Today), David Landau, Rosalind Dixon, and Bret Stephens (The New York Times) called for the impeachment of Trump a second time and for him to be disqualified from public office. Mary L. Trump, the President's niece, said she thought her uncle should be barred from ever running for office again.

Several conservative commentators, including Meghan McCain, Rod Dreher, Daniel Larison (The American Conservative), John Podhoretz (Commentary), Tiana Lowe and Eddie Scarry (Washington Examiner) expressed their support for the impeachment and/or the invocation of the 25th Amendment to remove Trump from office. Matthew Continetti, writing in the National Review, also called for Trump's removal from office.

Progressive commentators John Nichols (The Nation) and Matt Ford (The New Republic) also called for Trump to be impeached and disqualified perpetually from public office. Juan Williams (Fox News) wrote, "Arrest the rioters; impeach Trump" in a column in The Hill.

Calling the "armed" "storming" of the Capitol an "act of sedition", The Washington Post editorial board wrote that Trump's "continued tenure in office poses a grave threat to U.S. democracy" as well as to public order and national security, and called for Pence to immediately begin the 25th Amendment process to declare Trump "unable to discharge the powers and duties of his office" so that Pence could serve until Biden's inauguration on January 20. In its first-ever staff editorial, The Dispatch stated that Trump had "abused his public office", "violated the public trust", and "incited a violent attack on the Capitol and Congress. He must be removed." The Financial Times editorial board called for Trump to be "held accountable for storming the Capitol." The Wall Street Journal editorial board invited Trump to resign, calling his acts "impeachable" and stating that the President had "crossed a constitutional line that Mr. Trump hasn’t previously crossed."

Historians and constitutional scholars signed an open letter calling for impeachment. The letter, with over 300 signatories, was posted online on January 11.

Other organizations

The Lincoln Project, a political action committee formed by anti-Trump Republicans and former Republicans, called for the House of Representatives and the Senate to "immediately impeach Donald Trump for directing and provoking this attack."

The National Association of Manufacturers also requested Pence to "seriously consider" invoking the 25th Amendment.

Freedom House issued a press release calling for the immediate removal of President Trump, through resignation, the 25th Amendment, or impeachment.

The American Civil Liberties Union called for Trump's impeachment a second time.

March for Science circulated an online petition calling for Trump to be removed immediately, either through the 25th Amendment or impeachment.

Crowell & Moring LLP, a large Washington, D.C., law firm, says it has circulated a letter among the nation's 200 largest law firms calling for Trump's ouster. The firm says it has received support from "a nice number" of other firms but no firm committments as the firms have to consult with their management committees.

Opposition

Senate

Senate Majority Leader Mitch McConnell has argued that the Senate is in pro forma sessions until January 19 and that it cannot take on any business without the unanimous consent of the Senate. According to the Senate rules for impeachment, once articles of impeachment are presented to the Senate, the Senate trial must begin the next day. If these rules are followed, then Trump's trial cannot begin until after Biden's inauguration.

On January 8, Senator Lindsey Graham (R–SC) tweeted that impeachment "will do more harm than good." In a follow-up tweet, he implied that Pelosi and Schumer wanted to impeach Trump because they were concerned about their own political survival.

Others

Retired Harvard Law School professor Alan Dershowitz, who represented Trump during his 2019–2020 impeachment and had endorsed Biden for president in the 2020 election, opposes another impeachment. He stated that Trump "has not committed a constitutionally impeachable offense" and that he "would be honored to once again defend the Constitution against partisan efforts to weaponize it for political purposes."

George Washington University Law School professor Jonathan Turley wrote an op-ed in The Hill in which he argued that this new impeachment effort would "damage the constitution". While Turley condemns Trump's remarks, he stated that Trump's speech "would be viewed as protected speech by the Supreme Court." He also noted that Trump "never actually called for violence or riots" and pointed to other remarks made by congressional Democrats last year that similarly encouraged protests that turned violent.

Former National Security Advisor John Bolton called for Trump's resignation; however, he argued against both invocation of the 25th Amendment and impeachment, claiming that it was a "very bad idea", that the amendment was the "worst drafted" section of the Constitution, and would lead to "two competing presidencies" if invoked and challenged by Trump.

On January 12, Trump described the impeachment charge as a "witch hunt" that was “causing tremendous anger” among his supporters.

Public opinion polls

A YouGov survey of 1,448 registered voters on January 6 found 50% supported removal of Trump before January 20.

Axios/Ipsos found 51% of 536 supported immediate removal of Trump on January 6 and 7.

A PBS NewsHour/Marist poll of 875 adults conducted on January 7 found that 48% of respondents supported removal of Trump before January 20.

An ABC/Ipsos poll of 570 adults found 56% supported removal of Trump on January 8 and 9.

See also

• First impeachment of Donald Trump
• Impeachment inquiry against Donald Trump
• Impeachment trial of Donald Trump

External links

• Draft Articles of impeachment published January 11 2021