You are Hereby Removed!

Impeachment and the 25th Amendment may seem like a strange combo for one blog, but both provisions share the Constitutional remedy of “removal from office” (albeit in different ways). Unfortunately, both are also political processes wrought with deceptively unclear language and uneven application. Seriously, the virtually incomprehensible common law “Rule Against Perpetuities” might be easier to understand and follow. (Don’t ask, but if you must, here it is).

Despite that, let’s still give it a go, shall we?

As stated, both Impeachment and the 25th Amendment deal with removal from public office. Under the Impeachment process, Congress can remove any federal officer (including the President) if the officer is convicted by the Senate of certain Constitutional offenses. With the 25th Amendment, entitled “Presidential Disability and Succession”, Congress can, under certain conditions, remove a sitting President. How easy is it to either impeach or invoke the 25th? How do they differ? And what’s all this on the news lately about amending the 25th Amendment? Let’s take Impeachment first. It’s easier. I think.

Impeachment

Rendition of the Reading of Impeachment Articles against President Andrew Johnson circa 1868

Though most folks have probably heard the term, it’s still an often misunderstood concept. “Impeached” is simply another word for “charged” or “Indicted”. All it means is that a legislative body, for example Congress, or more specifically the House of Representatives, has charged an individual just like a Grand Jury would “indict” a person in a criminal case. And, like a Grand Jury, the Impeachment will be based on facts from a legislative inquiry or investigation. Once the individual is impeached in the House of Representatives, a trial is held in the Senate. While there are definite differences between a trial in the US Senate and a criminal trial, the result is essentially the same. The Senate decides (like a jury in a criminal case) if the individual is guilty or not. If convicted, the only remedy is removal from public office and a prohibition from ever holding office again. Prison is NOT an option.

So that’s it. Being impeached is just a fancy way of saying being charged by a legislature for some constitutional offense. And Impeachment is not just a federal process. Each state’s legislature can “Impeach” if their state constitution provides for it.

On the federal side, Articles I and II of the US Constitution handle most of the Impeachment related provisions. According to Article II, 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

Civil Officers

Who are Civil Officers under this provision? It’s not completely clear how far down the chain of command a person would still be considered an “Officer” for Impeachment purposes. Certainly, the heads of the various Executive Branch Departments and others in the President’s Cabinet can be impeached. Other senior Executive Branch executives, especially those positions requiring confirmation by the Senate, are probably impeachable too. The vast majority of federal workers, however, are considered employees so are NOT subject to the Impeachment provisions of Article II. Federal Judges can be impeached though. Senators and Representatives cannot be impeached. They have their own process called “expulsion” (Article I, Section 5).

Treason, Bribery, or High Crimes and Misdemeanors

The definition of “Treason, Bribery, or High Crimes and Misdemeanors” has been the subject of much debate. Impeachment scholars argue about the forefathers’ intent. Did the forefathers intend to apply the same definitions for “Treason, Bribery, or High Crimes and Misdemeanors” as the criminal definitions from common law? That is, does the federal officer have to commit an actual crime before being impeached? Or can they be impeached on lesser conduct? And, are misdemeanors in Article II the same as we know them today or as they were back then? Believe it or not, it might matter. For as this article points out, in the old days, “speaking too loud” by the President could be considered a misdemeanor! Yikes.

Still, most scholars agree that the framers did not intend that Impeachment must be based on an actual “crime”. Here is an interesting article from 1867, yes, 1867, that goes into great lengths what about the framers intended.

This also makes sense logically. After all, the penalties from a conviction in the Senate are civil: removal from office and a prohibition from holding office again. Prison, a criminal remedy, is not on the table. Since the remedy is civil, it follows the Impeachment does not need criminal behavior. However, can a former federal officer, convicted and removed from their position, be criminally charged (federally or by a state) for the same behavior that got them impeached? Yes, double jeopardy does not apply!

Impeachment History

The Impeachment process has actually been used more than some might know. Certainly, most remember the one involving the current administration and possibly the one involving the Clinton administration in the 90’s. Some might also remember that in the 70’s Richard Nixon was almost impeached, but since he resigned, that one didn’t happen. And Judges? Yes, see here. Several judges have not only been impeached, but convicted. If you want more, check out this article which further explains the impeachment process, history, and use. By the way, while several Federal Judges have been convicted, no President has been.

The 25th Amendment-Presidential Disability and Succession

Passed in 1965 and ratified in 1967, the 25th Amendment aimed to clarify Presidential succession.

The original provision concerning Presidential Disability, Article II, Section 1, Clause 6 , reads:

“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.”

History

The issue here was over the word “devolve”. What exactly did that mean? Did the Vice President merely serve as the “Acting-President” until the next election? Or did the Vice President become the new President. If the latter, then who became the new Vice-President?

The Constitution never addressed the particular issue of a Vice Presidential vacancy. Historically, the Office of Vice President was not considered as important as it is today, so filling a vacancy probably wasn’t a very high priority. In fact, the Office of the Vice President has been vacant 20% of the time!

After the assassination of President Kennedy, however, Congress introduced the bill that would become the 25th Amendment:

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.

Sections 1,2, and 3

Sections 1 and 2 clarify two old problems. Section 1 makes it clear that the Vice President becomes the President and Section 2 provides that the President can nominate a new Vice President for confirmation.

Both Sections 1 and 2 were used during the Nixon Administration. First, President Nixon had to find a new Vice President when the sitting Vice President, Spiro Agnew, resigned due to a non-Watergate related corruption scandal. Nixon nominated House Minority Leader Gerald Ford who was easily confirmed. A few months later, Ford became President when Richard Nixon resigned due to Watergate. Ford in turn nominated New York Governor Nelson Rockefeller to be his Vice President. Rockefeller was eventually confirmed as Vice President. Gerald Ford thus became the only person to become President without having been elected to either the Vice Presidency or the Presidency. The important point here is that Sections 1 and 2 of the 25th Amendment provided a solid process for a “smooth” transition during a turbulent time.

Section 3 has been used mainly in cases of planned temporary disability such as when the President undergoes a medical procedure.

Section 4

Section 4 is more problematic. Although TV and movies often use this Presidential “removal” provision as a well known plot point, in reality Section 4 is not so straightforward. The convoluted language reads like a political ping-pong game of shifting responsibilities and deadlines. However, plodding through it one discovers that the ultimate decision is with Congress. Basically, if within 21 days of receiving a declaration from the Vice President that the President is “unfit”, Congress votes by 2/3 majority that the President is unable to discharge the duties of the Office, the Vice President takes over. If Congress does not get the 2/3 vote or fails to act at all, the powers and duties revert back to the President. So there is at least a process, but Section 4 never actually defines what “unable to discharge” means. Physical Inability? Mental Inability? Undue Influence? How permanent does the disability have to be? Unfortunately, Section 4 is silent.

Another area of confusion in Section 4 is just who are “the principal officers of the Executive Departments” who must sign the declaration with the Vice President. Most, possibly due to how it’s treated in books, TV, and movies, read this part as meaning the President’s Cabinet. However, that’s not settled. Some members of the President’s Cabinet are not the head of any Executive Department (eg. US Trade Representative) and since the 25th Amendment’s passage, there are scores of new federal officers now appointed by Congress who could be considered “principal officers”. Again, Section 4 does not definitively address this.

A possible fix to both of these Section 4 issues has been in the news lately. As can be read above, Section 4 also allows a declaration of disability to be made between the Vice President and “such other body as Congress may by law provide”. Congress has never appointed such “a body” to look at whether a President was “fit ” for duty.

The Speaker of the House has recently made a proposal to amend the 25th Amendment by establishing an independent commission that could function in place of the “principal officers”. Having an independent bipartisan commission to look at Presidential fitness might take some of the politics out of the process. It’s a good thought, but a declaration of fitness would still require a sitting Vice President and the Commission to make the recommendation. The Commission could not do it on its own.

If you want to know more about the currently proposed amendment to the 25th Amendment, here is just one of many news articles describing it in more detail. It should be noted that even if this proposal moves forward, it will not be pass before this election or anytime soon.

In the end, while Section 4 of the 25th Amendment clarified the process of removing a disabled President, it only made determining the disability another political question. Time will tell if Section 4 can be made to work as smoothly in reality as it does in screenplays and novels.

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