Removal of a President Under the Constitution

Impeachment

With all the political turmoil sweeping through Washington DC, and the United States in general these days, the “I” word keeps popping up with increasing frequency. However, impeachment, the Constitution’s method for getting rid of a truly problematic president, isn’t something to attempt lightly or too quickly. The process is complicated, takes a long time, interrupts the flow of government and vastly increases the political fractures that already exist in the country. And besides, it has never resulted in an actual removal in the history of the republic.

That being said, presidential impeachments have been initiated three times in the past:

  1. Andrew Johnson in 1868.
  2. Richard Nixon in 1974.
  3. Bill Clinton in 1998

Johnson and Clinton were impeached (charged) but not convicted and removed. Richard Nixon resigned before the process could be completed.

Impeachment of a president, in the restricted legal sense, is the bringing forth of charges for “treason, bribery and other high crimes and misdemeanors.” Most constitutional scholars agree that some sort of criminal offense(s) must be in question to even consider this provision, but only two actual crimes are listed: treason and bribery. The wiggle room for interpretation comes in the term, “and other high crimes and misdemeanors.” Some even contend this intentional flexibility in the Constitution could mean that impeachment is anything Congress wants it to mean.

Impeachment charges are brought about in the House of Representatives, but the actual trial of the president is conducted in the Senate. All of that is supposed to be done in public. Each house of Congress makes up its own rules of procedure in these situations, but here are the basic steps as they exist at the writing of this article:

In the House of Representatives

  1. The Judiciary Committee considers the possibility of impeachment and if a majority agree, they bring it before the full House for approval to proceed. After debate in the house, and if the idea is approved by a majority, impeachment proceedings are initiated back in the Judiciary Committee.
  2. The Judiciary Committee then gathers evidence, interviews witnesses and holds hearings.
  3. The Judiciary Committee debates the merits of the case and decides whether or not to bring Articles of Impeachment to the full house.
  4. If Articles of Impeachment are drafted and voted for by a majority of the committee, they are then sent to the full House for a vote. If a majority of the House votes for one or more the articles, those charges are then referred to the Senate for an actual trial. The president is now considered impeached but not yet convicted.

In the Senate

  1. In the end, the full Senate serves a both judge and jury when considering the Articles of Impeachment against a president. This is a full-blown trial process where the Senate gathers evidence, interviews witnesses and holds hearings.
  2. In the proceedings, the Chief Justice of the Supreme Court presides, but the Senate can overrule his decisions.
  3. After deliberating in private, the Senators vote publicly on the Articles of Impeachment. They can reject all the Articles or approve only certain ones. But approval to convict and remove a president from office takes a 2/3 majority, as opposed to the simple majority required in the House to bring the charges, a far more difficult goal to reach.

If a president is convicted in the Senate under even one Article of Impeachment

  1. He is removed from office and the vice president becomes president.
  2. At no time in the entire impeachment process can a president pardon himself.
  3. Once a president in impeached, convicted and removed from office, or resigns, that individual again becomes a private citizen who can then be subject to prosecution for violations of federal and/or state laws.
  4. The new president can pardon the convicted or resigned president from all such prosecution. Such was the case when Gerald Ford pardoned Richard Nixon after he voluntarily left office.
  5. The Senate can prevent a convicted/removed/resigned president from holding other federal offices.

If you are interested in the exact Constitutional wording for the entire impeachment process, you will find it at near end of this article. However, there is one other possible way to remove a sitting president. See below.

The 25th Amendment

In 1965, the 25th Amendment to the Constitution was passed by Congress and ratified by the states in 1967. It was a clarification of presidential succession after the assassination of John Kennedy, but it also added wording about what to do if a president becomes disabled in some way and can’t fully function. This was meant to mean a physical condition but some interpret the term “disability” as also covering a president’s mental/emotional state.

In a time when a sizeable number of people in the United States question the current president’s mental balance and emotional ability to properly perform his duties, the 25th Amendment is increasing being cited as a method of removal. And while that possibility exists, a great many experts are less than certain such a process would actually work or even should work. Whereas physical disability is a reasonably clear concept on which to build a case for removal, mental and emotion factors are open to vastly divergent ways of interpretation.

In addition, this method of removal involves the vice president and a majority of the president’s Cabinet declaring that individual as unfit. Then both houses of Congress would have to approve this outlook by a 2/3 majority, a radical and somewhat questionable shift from the impeachment process as provided for in the body of the Constitution. As in impeachment, the vice president would then become president. To find the 25th Amendment in full, go to the end of this article. Located in Section 4, and shown in italics, is the removal portion in question. 

Impeachment as written into the Constitution

Article 2, Section 4

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 I Section 2, Clause 5
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article 1, Section 3, Clause 6

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.

Article 1, Section 3, Clause 7

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.

Amendment 25: The full wording

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

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. 

For further information

Videos

How to Impeach a President (Vox 6:50)

https://www.youtube.com/watch?v=JRtJXnsUYBc

2 Trackbacks / Pingbacks

  1. Impeachment History: Andrew Johnson – Indivisible Central Florida
  2. First President to be Impeached: Andrew Johnson - Welcome to the Worlds of Doug Dillon

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