Henningsen: Removal From Office

May 19, 2017

Despite calls for the president’s removal either by impeachment or invoking the 25th amendment, neither’s likely.

Article II of the Constitution specifies that presidents “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” Article I gives a simple majority of the House of Representatives power to impeach and authorizes the Senate to conduct an impeachment trial with a two-thirds majority necessary for conviction.

So what’s a “High Crime and Misdemeanor?" That’s a phrase meaning whatever a congressional majority wants it to mean. The challenge lies in defining impeachable offenses in terms that will draw support of 51% of the House and supplying evidence sufficient to convince two-thirds of the Senate. That’s hard. The Framers wanted to make it possible to remove a chief executive, but not easy. They also wanted to make sure that impeachment couldn’t be used as a political tool by people unhappy with the outcome of an election.

Today’s House is unlikely to devise articles of impeachment that will draw a majority. But should that happen, it’s hard to imagine two-thirds of today’s Senate voting to convict.

The 25th amendment is more complicated. It requires that the Vice-President and a majority of the Cabinet declare to Congress that the President is “unable to discharge the powers and duties” of the office. It’s up to them to define “unable.” This makes the Veep “Acting President.”

A President who objects may resume office after four days, unless the Veep and cabinet repeat their declaration. Then the Veep remains in charge while Congress has three weeks to decide the issue. Removal this way requires a two-thirds majority of both houses. Today’s political climate makes this highly unlikely.

As long as the president’s base of support remains solid nothing will change, for Republican lawmakers fear punishment at the polls for breaking ranks. This will change only if something truly catastrophic happens; something demonstrably caused by the President; something that badly damages his strongest supporters.

The framers did specify another mechanism for removal from office: voting, which only 60% of us did last fall. We should support registration drives; we must protect people’s right to vote by actively resisting efforts at voter suppression. And more of us should actually vote.