8 stycznia, 2021 r.

The 25th amendment, i.e. consequences for D. Trump?

The 25th amendment, i.e. consequences for D. Trump?

fot. M. Andrzejewski, UŁ

The events that took place in the afternoon of January 6 in Washington, DC, United States have electrified media and public opinion around the world. It is hardly surprising, since for many people American democracy is an unattainable model, and Americans themselves have repeatedly presented themselves as those who bring democratic values to the frontiers of civilization - writes Associate Professor Łukasz Korporowicz, from the Faculty of Law and Administration of the University of Lodz.


POLISH VERSION HERE


Undoubtedly, the crowd that stormed the Congress building was incited by President Donald Trump, who, during a morning meeting with his supporters, once again announced that the elections he had lost had been rigged. In addition, he urged his constituents to go to the Capitol to demand "the truth."


During the riots, the president also posted several entries on his Twitter profile and a recording in which he called for peace, but he ultimately did not condemn the attack, and again claimed that the elections had been rigged.


Behaviour of the incumbent president of the United States caused serious anxiety to those around him. Only hours after the outbreak of the riots, several top officials in the presidential administration resigned from their positions. Additionally, just before the attack on the Capitol was launched, Vice President Mike Pence torn between loyalty to Trump and the Constitution, decided to oppose the demands of Donald Trump to take steps to block the election approval procedure (the vice president serves as the so-called president pro tempore, ceremonial president of the upper house of Congress).



According to the most recent, as yet unofficial, press reports, Donald Trump's associates, as well as some politicians of the Republican Party, are considering initiating the procedure for removing him from office in accordance with the 25th amendment to the US Constitution.



This amendment has been in force in the US constitutional order since 1967. Its introduction was the aftermath of the murder of John F. Kennedy in November 1963. It was then decided that the existing legal regulations could be insufficient in the event of a sudden vacancy of the highest office in the state. In July 1965, the amendment was passed by Congress, and on February 10, 1967, the 38th state (Nevada) approved it (approval of at least ¾ of states is required to approve an amendment).



The twenty-fifth amendment provides for the possibility of replacing the incumbent president by a vice president in situations where he is unable to perform his tasks, died or resigned (section 1). The current political situation allows us to assume that an attempt will be made to refer to the first of the indicated premises.



The amendment clarifies that the president may be removed from office due to his inability to perform his duties (“President is unable to discharge the powers and duties of his office”). A declaration of this kind follows a vote which the vice president and members of the cabinet participate in (section 4). Voting, however, would require determination of the president's associates. The last hours have shown, however, that such a situation cannot be ruled out.



If there is voting and the vice president agrees to complete the presidential term, the House of Representatives and the Senate will have to be immediately notified. If such steps are taken, whether or not Donald Trump is removed from power by his associates, they will be unprecedented. Until now, there has never been an attempt to apply section 4 of the amendment.


Using the above procedure does not necessarily mean the end of the current president's troubles. The possibility of re-impeachment of the president through the impeachment procedure is also under consideration. First of all, politicians of the Democratic Party are calling for its initiation. American lawyers point to the possibility of using the provisions on incitement to commit a crime known as seditious conspiracy.



Federal legislation provides that the following should be considered as such:

“If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.” (18 US Code § 2384).


Effective conduct of the impeachment procedure - legal, though highly politicized - always raises many difficulties and doubts. However, unlike the attempt to convict the president at the end of 2019, the balance of power in Congress has changed significantly. The Democratic Party has a majority in the House of Representatives, and in the Senate there was essentially an equal distribution of seats (50 - Republican Party, 48 Democratic Party, 2 - independent politicians who, if voted, would most likely support the Democrats' proposal).



Moreover, representatives of the Republican Party are no longer willing to blindly support President Trump. A year ago, Mitt Romney of Utah was the only Republican senator who supported sentencing of the president. Now other senators from his party – among others Mitch McConnell, party leader in the Senate (Kentucky), Liz Cheney (Wisconsin) and Tom Cotton (Arkansas) admit to openly criticizing the president's behaviour.



The impeachment of the president follows an investigation conducted by a committee of the House of Representatives. Formal accusations are made as a result of voting of the Chamber. Given the Democratic majority, the accusation shouldn't be difficult. The judgment is issued by the Senate. For the successful conviction of a government official, the so-called supermajority, i.e. 2/3 of the senators' votes, is required. With the changed mood of the Republican senators, achieving this majority does not seem to be impossible anymore.



It is difficult to say whether the removal of the president from office or the impeachment will actually take place, especially since there are two weeks left until the end of his term of office. There is no doubt, however, that it was the last straw of legal and political bitterness. His most faithful political allies are leaving the president.


Can Donald Trump count only on the support of an agitated crowd? If so, one must hope that the democratic values that guided the Founding Fathers, as well as the systemic mechanisms developed by them, will be recalled and properly used.


Update (8 January 2021):


In the last twenty-four hours since the original publication of this comment some additional and important events occurred.


Although Vice president Mike Pence and the cabinet were repeatedly called to commence the procedure of the removal of the President according to the 25th amendment, no steps have been taken with this respect. As for today two hundred congressmen and congresswomen called the vice president to act in that capacity. It seems, however, that the overall atmosphere in the White House is dense. According to the press information, the vice president’s aides were not allowed to enter White House yesterday. In addition, heads of the Department of Transportation (Elaine Chao) and Department of Education (Betsy DeVos) resigned. While Donald Trump himself declared yesterday evening that he was condemning the rioters and that the transition of power had to peaceful.


Regarding the impeachment procedure, the Democratic Party was not wasting time. Its earlier suggestions that the impeachment should be initiated as quickly as possible are still repeated. Also, several Representatives from the Democratic Party prepared and started to circulate the draft version of the so-called “Articles of Impeachment” – a formal accusation required by the impeachment procedure.


There are still some doubts on what grounds the impeachment should be carried and how to justify the rioters’ actions in the legal terms. According to Carlton Larson, professor of law at the UC Davis School of Law, there is no doubt that for the framers of the US Constitution, rioters’ acts would be labelled as treason. Larson, in his comment for Washington Post, noticed that “An armed attack on the Capitol to obstruct the counting of the electoral votes easily qualifies as treason under the framers’ original understanding of the Treason Clause” (link to the original comment: https://www.washingtonpost.com/outlook/2021/01/07/...). Should the president be impeached for treason as well? One thing is for sure, this historic interpretation once more suggests that the return to the roots of American democracy is much needed.



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