After Wednesday’s storming of the Capitol by a pro-Trump mob, House Democrats have made impeaching the president a renewed priority, even as the clock ticks down on the last days of his term. So far, House lawmakers’ efforts to levy impeachment proceedings are contingent on whether Vice President Mike Pence and Trump administration officials agree to invoke the 25th Amendment of the Constitution and remove Trump from office. If Pence agrees to operate under the framework of the 25th, then impeachment proceedings wouldn’t be necessary. (Under this arrangement, the powers of the presidency would be temporarily transferred to Pence, with Trump determined “unable to discharge the powers and duties” of the office, and thus required to vacate the Oval Office).
On Monday, the 25th Amendment effort was blocked by House Republicans, forcing Democrats to bring the issue to the House floor for a full vote on Tuesday. If the vote passes the House tomorrow — it’s expected to, given Democrats’ control of the chamber — it, at the very least, ignites the process, heightening the possibility of Pence and administration staffers formalising Trump’s dismissal. (Using the 25th Amendment to remove a president can be a thorny process, so check out CNN’s explainer for further reading on the matter).
But Democrats’ approach is twofold: One article of impeachment introduced on Monday already has 200 co-sponsors, levied against the president for his “incitement of insurrection” leading to Wednesday’s chaos at the U.S. Capitol. If impeachment passes the House in lieu of the 25th Amendment, it will mark the first time in U.S. history that a president was impeached twice by either chamber of Congress, let alone during a single term. This impeachment vote will commence on Wednesday.
However, with Trump’s days in power dwindling, there are several questions pervading the impeachment process: Namely, what are the repercussions he could still face if impeached, since he’s destined to become a private citizen on January 20? The consensus on the topic, it turns out, is far from uniform.
In the days since an unhinged mob of domestic terrorists stormed the U.S. Capitol building on Wednesday, spurred on by the president in their effort to thwart the free exchange of executive power, some media and political figures have been offering refrains that seek to sanitize and compartmentalise the chaotic...Read more
First, an impeachment refresher
You might feel like a seasoned Constitutional scholar at this point, given our founding document’s consistent place in the spotlight in recent months. But nonetheless, let’s gloss over the general process of impeachment to better understand the litigious journey ahead.
Former Lifehacker writer Josh Ocampo broke down the general gist in 2019:
Impeaching a U.S. president involves a lot more than a single trial or vote. As we’ve written before, it’s a long process that involves the following steps: a decision by the House on articles of impeachment, a debate over those articles by the House Judiciary Committee, a vote by the House for impeachment which must involve at least one approved article, a determination by the Senate on trial proceedings, a trial by Senate, and then a verdict by the Senate.
In the current case against Trump, it’s likely that there wouldn’t be a House Judiciary Committee debate. Typically, hearings overseen by the Judiciary Committee require the summoning of witnesses to answer questions from lawmakers. That process would be bypassed in this case, owing to the extreme circumstances spurring the impeachment proceedings.
As NBC’s Pete Williams writes:
It would take a simple majority vote for the House to impeach. Any articles of impeachment would then go to the Senate, where they could be referred to committee or be fast-tracked to the Senate floor.
If the House votes in favour of impeachment on Wednesday — you have every reason to believe it will — the issue will then go to the Senate, where it will require a two-thirds majority vote in favour of conviction to formally remove the president from office.
But with Trump on his way out the door, can the Senate still preside over impeachment proceedings? In a short answer, yes, though it’s more complicated than that.
The U.S. Constitution provides instructions for how to remove a President from office if they are unfit to do their job — gravely wounded, for example, or mentally unstable. The process could also be used if the President is incapacitated, for example if they were sedated and on a ventilator.Read more
The Senate can still convict Trump after he leaves, sort of
This is largely uncharted territory in American history, as no president has been impeached by both the House and Senate while they were still in office, let alone after they’d vacated the White House. According to NBC News’ report, legal experts are divided on the issue, though Congressional lawmakers seem to think the effort can continue regardless of Trump holding public office.
Michael Gerhardt, a law professor at the University North Carolina at Chapel Hill, told NBC: “Once an impeachment begins in the House, it may continue to a Senate trial. I don’t see any constitutional problem with the Senate acting fast or slowly.”
Still, according to House Majority Whip Jim Clyburn of South Carolina, Congressional Democrats may put impeachment on the back burner in the early stages of Joe Biden’s eventual presidency, allowing him his first 100 days in office before taking up the issue in the Senate.
What happens if the Senate convicts?
With Trump already out of office, the impeachment process isn’t exactly over should the Senate swing the gable and convict. In order to fully punish an outgoing, convicted president, there’s yet more formalities on the docket.
CNN’s Daniel Dale explains that conviction in the Senate does levy some meaningful punishments on Trump. For instance, a Senate conviction would mean that Trump would lose his post-presidency pension, amounting to roughly $US200,000 ($259,980) annually.
When it comes to barring Trump from running for president again in 2024, however, another Senate vote would need to happen. As Dale writes:
After two-thirds of senators present voted to remove Trump, a simple majority of senators present would have to approve an additional vote to bar him from the presidency in the future.
Even then, there’s uncertainty, given a lack of historical precedent dictating how this punishment would be administered; again, no president has ever been removed from office, for starters. When it comes to disqualification, Ross Garber, a law professor at Tulane Law School, told CNN that the disqualification issue remains an open question because it’s unclear whether the presidency applies to the disqualification language in the Constitution as an “Office of honour, Trust or Profit under the United States.”
When it comes to Trump enjoying Secret Service protection after a hypothetical Senate conviction, it’s also unclear. There are two laws — the Former Presidents Act, and the Former Presidents Protection Act, which Barack Obama signed into law in 2013 — that could determine this outcome. According to CNN, the former states “that a president who gets booted by the Senate does not count as a ‘former president’” when it comes to post-presidential benefits, while the latter fails to define “former president” with much clarity. Which is to say, it’s unclear which law would be the primary legal reference if the courts were to decide whether to strip Trump of Secret Service protection post-presidency.
It bears repeating that we’re treading in dark, uncharted waters. The ultimate decision to strip Trump of post-presidential perks probably wouldn’t come any time soon, if it ever came at all.