As Congress debates whether and how to remove Donald Trump from office, politicians and commentators have been quick to explore the Twenty-fifth Amendments procedure for removing a president due to an inability to discharge the powers and duties of his office. Late on Tuesday night, the House of Representatives approved a nonbinding resolution formally asking Vice President Mike Pence to invoke the Twenty-fifth; he has transmitted a letter saying that he will not do so. (Over the weekend, I made the case against using the Twenty-fifth.) The House is expected to turn immediately on Wednesday to pursuing a historic second impeachment against President Trump.
Meanwhile, though, a third option for removing Trump from office has been floated: to disqualify him via a little-known provision of the Fourteenth Amendment meant to restrict former Confederates from government service after the Civil War.
Advanced by historian Eric Foner and law professors Bruce Ackerman and Gerard Magliocca, and trumpeted by Katrina vanden Heuvel of the Nation (among others), its a worse idea than the Twenty-fifth Amendment plan. It shares with the Twenty-fifth Amendment approach the problem of novelty but has an even more tenuous connection to Trumps actions.
Impeachment, however, is solid, certain, and tested by long experience. It is not found in an obscure corner of the Constitution until recently familiar only to experts. Impeachment has been used by Congress throughout the nations history in response to the malfeasance of federal officials, including but not limited to presidents. That long history makes impeachment the correct tool to remove Trump.
Twenty individuals have been impeached by the House of Representatives, including 1 senator, 1 cabinet secretary, 1 Supreme Court justice, 3 presidents, and 14 federal judges. In 8 cases, the Senate voted to convict and remove from office. Another 8 cases produced an acquittal, and 3 times, the accused resigned and ended the process.
The first impeachment was perhaps the strangest. In 1797, Tennessee Senator William Blount was brought up on charges for conspiring with the British to seize Spanish lands along the Gulf Coast. Blount had represented North Carolina at the Constitutional Conventionwhich is to say, he was a signer of the document later used to prosecute him. The House impeached him on July 7, 1797, but the Senate expelled him the next day. The House subsequently drew up articles of impeachment for the former senator, but the Senate declined to take them up, saying it lacked jurisdiction. Ever since, members of Congress have been removed by expulsion rather than impeachment.
In the most recent pre-Trump impeachment cases, Judge Samuel Kent was impeached for sexual abuse and obstruction of justice in 2009, and Judge G. Thomas Porteous Jr. was impeached for taking bribes and for perjury in 2010. Kent resigned before the Senate could act; Porteous was convicted and removed from the bench. Both cases were heard by many current members of Congress; Adam Schiff, Hank Johnson, and Zoe Lofgren were among the House managersexperience that prepared them for that role in Trumps 2019 impeachment.
Rep. Alcee Hastings has a special expertise in impeachment proceedings, having been on both sides of them. He was a federal district court judge when, in 1988, he was impeached for bribery and perjury. He was convicted by the Senate and removed from office in 1989but he was then elected as a Democrat to Congress by the state of Florida in 1992. He is now the longest-serving member of the states congressional delegation. He voted for all three impeachments of judges that came up after his own impeachment, as well as the impeachment of President Trump, but opposed the impeachment of President Clinton.
All told, Congress has significant institutional experience, both historical and in present times, to carry out an impeachment that will earn widespread support. History buttresses legitimacy, which is crucial because removing a president from office has never been done before.
This is not the time to flex the Constitution, despite the need for urgency. Remember that creative approaches to the law played no small part in sparking the current crisis. The mob that descended on Washington assembled because Trump led them to believe that Pence, in his role as president of the Senate, could somehow decertify the Electoral College results and deliver a Trump victory. If Mike Pence does the right thing, Trump told the crowd on January 6, we win the election.
Trumps theory not only contradicted the role outlined for the vice president in the Electoral Count Act of 1887, but also would have transformed the vice presidency into a formidable office with the final say over who became president. The first vice president, John Adams, who considered it the most insignificant Office that ever the Invention of Man contrived or his Imagination conceived, would have been shocked. He had great power and no one told him? Fortunately, as the New York Times has reported, Pences staff arranged to have a respected federal judge tweet out his understanding of the vice presidents limited role, an analysis that Pence immediately cited in his letter rejecting Trumps suggestion that he intervene in the Electoral College count.
As I wrote over the weekend, the Twenty-fifth Amendment is not well suited for the present circumstances. The text of the amendment speaks only of a situation in which the President is unable to discharge the powers and duties of his office. The amendments authors clearly had in mind a medical disability.
The Fourteenth Amendment route is even more of a stretch. Here is the relevant text, from section 3 of the amendment:
No Person shall . . . hold any office, civil or military, under the United States . . . who, having previously taken an oath . . . as an officer of the United States . . . 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.
The texts generic language makes it seem like it applies to more than just ex-Confederates. Yet this passage was clearly meant to address a specific problem following the Civil War: how to keep secessionists away from power and prevent the old antebellum problems from resurfacing. After Reconstruction, the provision has been used only once: to keep socialist Victor Berger out of Congress during World War I. But even then, a successful court challenge allowed him to serve again.
To invoke either of the amendments now, for the first time, for a non-medical reason and against someone who wasnt alive during the Civil War, risks giving the appearance that the goal, however achieved, was more important than the process.
Removing a president from office is novel enough. Impeachment has a history that gives it extra heft. Congress should embrace its experience with impeachment and devote its energy to that path alone.
View post:
The 14th Amendment Is Not an Alternative to Impeachment - The Bulwark
- New Ad Taunts Trump: 'Take the Stand, Donald, or Admit You're a Coward' - The New York Times - May 19th, 2024 [May 19th, 2024]
- Fifth Amendment prohibits double jeopardy and here's what that means - Tennessean - May 19th, 2024 [May 19th, 2024]
- VANDA Pharmaceuticals States a Fifth Amendment Claim against the Government for Taking a Trade Secret - Trade Secrets Trends - February 13th, 2024 [February 13th, 2024]
- Attorneys argue shooters Fifth Amendment rights on the 4th day of the Jennifer Crumbley trial - Detroit News - January 27th, 2024 [January 27th, 2024]
- Judge will not allow Michigan school shooter to testify in mother's trial if he invokes the Fifth Amendment - AppleValleyNewsNow.com - January 27th, 2024 [January 27th, 2024]
- Shamoon v. Resideo: Obviousness affirmed - Patently-O - August 12th, 2023 [August 12th, 2023]
- Billings County sued over eminent domain as bridge dispute rekindles - Bismarck Tribune - August 12th, 2023 [August 12th, 2023]
- 'Tyler' and a Call for Reform of the New Jersey Tax Foreclosure ... - Law.com - August 12th, 2023 [August 12th, 2023]
- "Like fatter Tony Soprano Attending the Arraignment and "Effect[ing ... - Emptywheel - August 12th, 2023 [August 12th, 2023]
- Call to faith-based leaders to help end violence; Parents need to pay ... - Capital Gazette - August 12th, 2023 [August 12th, 2023]
- "Stunning development": Experts say Trump target letter is surest ... - Salon - June 12th, 2023 [June 12th, 2023]
- LIV, PGA drop a bombshell on Washington - POLITICO - June 12th, 2023 [June 12th, 2023]
- Congressman Matt Gaetz Introduces Resolution to Hold Former ... - Congressman Matt Gaetz - June 12th, 2023 [June 12th, 2023]
- It's time to end home equity theft in Maine - Bangor Daily News - June 12th, 2023 [June 12th, 2023]
- Louisiana's Sabine River Authority Not Entitled To Sovereign Immunity - The Energy Law Blog - May 28th, 2023 [May 28th, 2023]
- Ninth Circuit Finds that Criminal Reentry Provision Not Driven by ... - Immigration Blog - May 28th, 2023 [May 28th, 2023]
- Ken Paxton Impeached on 20 Charges Including Bribery ... - The Texan - May 28th, 2023 [May 28th, 2023]
- Simply losing it: Bitter fight brews over federal judges forced retirement effort - Yahoo News - May 28th, 2023 [May 28th, 2023]
- Worth County Board of Supervisors Meeting (LIVE) - KIOW.com - May 28th, 2023 [May 28th, 2023]
- Trump Organization finishes last in brand reputation survey for second straight year - The Hill - May 28th, 2023 [May 28th, 2023]
- They held down a Black teen who tried to shoplift. He died from ... - Wisconsin Examiner - May 28th, 2023 [May 28th, 2023]
- What is the Fifth Amendment, and how has it been used? : NPR - March 31st, 2023 [March 31st, 2023]
- Tmc the Metals Company Inc. Enters into Fifth Amendment to Pilot Mining Test Agreement and Third Amendment to Strategic Alliance Agreement, Which Is... - February 20th, 2023 [February 20th, 2023]
- Interpretation: The Fifth Amendment Due Process Clause | Constitution ... - January 31st, 2023 [January 31st, 2023]
- Fifth Amendment invoked to the point of 'unintentional hilarity' by Jan ... - December 26th, 2022 [December 26th, 2022]
- Why Did Trump Plead The Fifth Amendment?What We Do Know ... - Newsweek - October 25th, 2022 [October 25th, 2022]
- Understanding the Fifth Amendment Right to Remain Silent - October 19th, 2022 [October 19th, 2022]
- US Government for Kids: Fifth Amendment - Ducksters - October 19th, 2022 [October 19th, 2022]
- Donald Trump loves to plead the Fifth. It won't save him this time. - MSNBC - October 19th, 2022 [October 19th, 2022]
- Everything You Ever Wanted to Know About Georgia Special Purpose Grand Juries But Were Afraid to Ask - Lawfare - October 19th, 2022 [October 19th, 2022]
- Citing double jeopardy, Fargo man who killed 14-year-old Jupiter Paulsen wants murder conviction dropped - INFORUM - October 19th, 2022 [October 19th, 2022]
- Nicki Clyne: What Happened to NXIVM Member and Where Is She Now? - Newsweek - October 19th, 2022 [October 19th, 2022]
- New York AG Asks Judge to Prevent Trumps From Hiding Assets Mother Jones - Mother Jones - October 15th, 2022 [October 15th, 2022]
- Trump Will Finally Have to Face Questions About Alleged Rape, Judge Rules - VICE - October 15th, 2022 [October 15th, 2022]
- 'In the Heat of the Night' star Lee Grant on working with Sidney Poitier and being blacklisted by Hollywood - Yahoo Entertainment - October 15th, 2022 [October 15th, 2022]
- THE OTHER SIDE: Orange Jesus took the Fifth - theberkshireedge.com - October 6th, 2022 [October 6th, 2022]
- BNP Paribas : 5th amendment to the 2021 Universal Registration Document - Marketscreener.com - September 29th, 2022 [September 29th, 2022]
- Tlingit tribal member shares his story of helping the Yakamas get Mount Adams back - Yakima Herald-Republic - September 29th, 2022 [September 29th, 2022]
- Trump Pleading the Fifth Might Have Doomed Him in Civil Case - Newsweek - September 27th, 2022 [September 27th, 2022]
- Why is Kevin McCarthy Promising to Remove Parents from the Terrorist Watch List? - Daily Kos - September 27th, 2022 [September 27th, 2022]
- Alex Jones said he may have to plead the Fifth as he's set to testify - Insider - September 27th, 2022 [September 27th, 2022]
- USS Fitzgerald and ACX Crystal collision: The Fifth Circuit Court of Appeals delineates the reach of personal jurisdiction - GARD - September 9th, 2022 [September 9th, 2022]
- Trump investigation tracker: Keeping up with Trump's many legal issues - Grid - September 9th, 2022 [September 9th, 2022]
- Bo Dukes's conviction to stand following motion for new trial - Douglas Now - September 9th, 2022 [September 9th, 2022]
- VAIL RESORTS INC : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet... - September 9th, 2022 [September 9th, 2022]
- It's brother vs. brother at trial over NYC slaying of mobbed-up dad, 'Sally Daz' Zottola - New York Post - September 9th, 2022 [September 9th, 2022]
- Letters: Boater offers different perspective on the Playpen - Chicago Tribune - September 9th, 2022 [September 9th, 2022]
- Michael Flynn: From Government Insider to Holy Warrior - PBS - September 9th, 2022 [September 9th, 2022]
- Hamel found guilty of Athol murder, sentenced to life in prison - The Recorder - September 9th, 2022 [September 9th, 2022]
- Biden Slowly Winning LBJ- and FDR-Like Praise As Legislative Victories Mount - Seattle Medium - September 9th, 2022 [September 9th, 2022]
- Vice Principals, the Fifth Amendment, and Negative Inferences - JD Supra - August 30th, 2022 [August 30th, 2022]
- PERMA FIX ENVIRONMENTAL SERVICES INC : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an... - August 30th, 2022 [August 30th, 2022]
- Letter: Invoking the Fifth Amendment is not an admission of guilt - INFORUM - August 29th, 2022 [August 29th, 2022]
- Taking the Fifth, FBI attacked: 5 takeaways of Gov. Whitmer kidnap trial - MLive.com - August 29th, 2022 [August 29th, 2022]
- How much money could Donald Trump have to pay in fines if his businesses are penalized? - AS USA - August 29th, 2022 [August 29th, 2022]
- A high stake debate and tension at the GOP convention: Your guide to Michigan politics - MLive.com - August 29th, 2022 [August 29th, 2022]
- We Can Be Framers Too - The Atlantic - August 29th, 2022 [August 29th, 2022]
- For 38 Years of American History, There Has Been No Vice President - History News Network - August 8th, 2022 [August 8th, 2022]
- Emmett Till is gone. The quest for justice lives on. - New York Daily News - August 8th, 2022 [August 8th, 2022]
- 'A bold-faced LIE': St. Louis mayor blasts Black police officer groups criticism of oversight bill - KSDK.com - August 8th, 2022 [August 8th, 2022]
- He has done more to further the cause of hate in the US than almost anyone: the rise and fall of Alex Jones - The Guardian - August 8th, 2022 [August 8th, 2022]
- Even the District Attorney Believed Joaquin Ciria Was Innocent. Why Did It Take So Long to Set Him Free? - POLITICO - August 8th, 2022 [August 8th, 2022]
- Understanding the Constitution: Why It Doesn't Protect the Unborn - The Epoch Times - August 6th, 2022 [August 6th, 2022]
- Former fugitive charged with rape in Deerfield case demands new lawyer - The Recorder - August 6th, 2022 [August 6th, 2022]
- Sources: Donald Trump Jr., Ivanka Testify Before NY AG's Office in Finance Probe, Neither Pleads the 5th - NBC New York - August 6th, 2022 [August 6th, 2022]
- Time running out to try Catherine Hoggle for the disappearance, suspected murder of her 2 kids - WUSA9.com - August 6th, 2022 [August 6th, 2022]
- Trump faces uphill fight on executive privilege in DOJ probe - POLITICO - August 6th, 2022 [August 6th, 2022]
- Charles Milliken: Defining what exactly is a 'right' - Monroe Evening News - July 31st, 2022 [July 31st, 2022]
- How grand juries work and why Jan. 6 prosecutors are relying on them - Salon - July 31st, 2022 [July 31st, 2022]
- Roe, Dobbs and women's rights New York Daily News - New York Daily News - July 31st, 2022 [July 31st, 2022]
- Partisan congressional hearings are a threat to all citizens - Monroe Evening News - July 31st, 2022 [July 31st, 2022]
- 9 years after a UIW police officer shot student Cameron Redus, the case is going to trial - San Antonio Express-News - July 31st, 2022 [July 31st, 2022]
- Outcome of first kidnapping trial can't be used as evidence in second trial, judge rules - Michigan Radio - July 31st, 2022 [July 31st, 2022]
- Washington County woman held in death of 5-year-old son - Herald-Mail Media - July 31st, 2022 [July 31st, 2022]
- What Did the Dissenting Justices Think About the Power of Military Authorities & More - The Soldiers Project - July 31st, 2022 [July 31st, 2022]
- Whipping the votes in Suffolk - Newsday - July 31st, 2022 [July 31st, 2022]
- If Trump Takes the Fifth, Is He Guilty? - Law & Crime - July 29th, 2022 [July 29th, 2022]
- Anambra House of Assembly Passes 5th Amendment Bills - TVC News - July 29th, 2022 [July 29th, 2022]
- How do grand juries work? Their major role in criminal justice, and why prosecutors are using them to investigate efforts to overturn the 2020... - July 29th, 2022 [July 29th, 2022]
- We need to hear the unbiased story - Villages-News - July 29th, 2022 [July 29th, 2022]