WASHINGTON – Democrats are demanding President Donald Trump's removal – or at least barring him from ever holding public office again – for whipping up a crowd of supporters who rushed the Capitol Jan. 6, leading to a deadly riot.
They've called for his resignation, urged the Cabinet to remove him under the 25th Amendment and, with those two options looking extremely unlikely, are preparing to impeach the president for a second time.
The issue is how quickly. On Monday, the House introduced a single article (or charge) for "incitement of insurrection," which could allow a fast-tracked floor vote on impeachment by Wednesday. Upon receiving the article, the Senate must take it up either through a vote to dismiss the charge or, if that fails, moving ahead with a trial to determine whether to convict the 45th president.
"This was an attempted coup to overthrow the government and we have a responsibility as Congress to respond to that," said Rep. David Cicilline, D-R.I., the chief author of the impeachment article that has more than 200 co-sponsors. "This is urgent. This president represents a real danger to our democracy."
But some impeachment supporters are hedging on moving too fast, noting that the Senate won't be able to act before Trump leaves office Jan. 20. Impeachment backers need at least two-thirds – or 67 – of the 100-member Senate to support conviction. While a few congressional Republicans appear to support Trump's term ending early, it's unclear whether Democrats would be able to convince 17 GOP senators to effect such a move.
In addition, forcing a January trial would divert time and attention from Joe Biden's incoming administration just as the new president will be trying to ramp up Cabinet confirmation votes and measures to address the spiraling pandemic that's already killed more than 375,000 Americans, infected 22 million others and decimated the global economy.
Here are some competing scenarios being weighed to punish the president and force his ouster:
The likeliest scenario involves Congress taking action on its own and convicting Trump for what they allege was his direct role in fomenting violence at the Capitol on Jan. 6, where a rampage left one police officer dead, a female rioter fatally shot and three other assailants dead.
The House could vote Wednesday on the article of impeachment, but the timing of a Senate trial is uncertain.
Senate Majority Leader Mitch McConnell, R-Ky., has circulated a letter showing the Senate couldn’t possibly hold a trial before Trump’s term ends at noon Jan. 20. The Senate will meet next in pro forma session on Jan. 19. Even if the chamber received an article of impeachment by then, the next step it could take under its rules would be at 1 p.m. Jan. 20, according to McConnell’s memo.
And there are far-reaching consequences to consider, according to Jonathan Turley, a George Washington University law professor who testified during the previous Trump impeachment hearings.
A “snap impeachment” could set the precedent for a Congress to impeach presidents for actions of their supporters, he said.
“The damage caused by the rioting was enormous, but it will pale in comparison to the damage from the new precedent of a ‘snap impeachment' for speech protected under the 1st Amendment,” Turley wrote in a Monday tweet. “It would do to the Constitution what the rioters did to the Capitol: Leave it in tatters.”
...The damage caused by the rioting was enormous, but it will pale in comparison to the damage from the new precedent of a “snap impeachment” for speech protected under the 1st Amendment. It would do to the Constitution what the rioters did to the Capitol: Leave it in tatters.
— Jonathan Turley (@JonathanTurley) January 9, 2021
The timing of impeachment
House Speaker Nancy Pelosi, D-Calif., didn’t specify impeachment timing during an interview broadcast Sunday on CBS's “60 Minutes," but said something has to be done to punish Trump.
"He has to pay a price for that," she said.
Even if the House approves an article of impeachment this week, Pelosi might not send it to the Senate immediately as she did more than a year ago – when Trump was impeached.
The House voted Dec. 18, 2019, to impeach Trump on charges of abuse of power and obstruction of Congress involving his efforts to pressure Ukraine leaders to dig up dirt on then-candidate Biden. But to build public pressure on the Senate to take witness testimony, Pelosi held on to the articles. The House voted Jan. 15, 2020, to transmit them to the Senate. The Senate chose not to have witnesses and acquitted Trump on Feb. 5, 2020.
Only one Republican – Sen. Mitt Romney of Utah – joined 47 members who caucus with Democrats to convict Trump of abuse of power against 52 Republicans who voted to acquit – far short of the two-third majority needed for conviction.
There appears to be a bit more GOP support for impeachment this time.
Sen. Ben Sasse, R-Neb., said he would look at any impeachment articles the House sends. And Rep. Adam Kinzinger, R-Ill., said he would vote for impeachment, but that he doesn’t think the effort is smart because “it victimizes Donald Trump again.” Other Republicans have called on Trump to resign.
Casey Burgat, a congressional expert at George Washington University, said the concern for Democrats is that waiting likely would play in Trump's favor.
"If you don’t strike now when the emotions are still real, the aftereffects are still raw, the attention is concentrated on a single act, (Democrats might miss) the best shot of getting those Republican senators that you need when they’re still vulnerable to the backlash at home," he said. "After Trump leaves and if he’s able to disappear even for a month or two, memories will fade."
Impeachment could dominate Biden's first days
House Majority Whip Jim Clyburn, D-S.C., told CNN’s “State of the Union” on Sunday that Democrats might wait until after the first 100 days of Biden’s administration. The Senate would have little opportunity to conduct legislative business or confirm executive nominations once it receives articles of impeachment, which could hinder movement on Biden’s priorities.
“Let’s give President-elect Biden the 100 days he needs to get his agenda off and running, and maybe we’ll send the articles sometime after that,” Clyburn said.
But Rep. Adam Schiff, chairman of the House Intelligence Committee, which led the first impeachment investigation, said any articles approved should be sent to the Senate because the chamber could deal swiftly if senators agree unanimously.
"My feeling is, if we impeach him this week that it should immediately be transmitted to the Senate and we should try the case as soon as possible,” Schiff told “CBS This Morning.” “Mitch McConnell has demonstrated when it comes to jamming Supreme Court justices through the Congress, he can move with great alacrity when he wants to."
Biden has said it is up to Congress to decide whether to impeach Trump, but that he wants to hit the ground running on Jan. 20 with efforts to curb COVID-19, distribute the vaccines and revive the economy.
“I’ve been clear that President Trump should not be in office. Period," the president-elect said.
Biden said he's asked whether the Senate could hold an impeachment trial for part of the day and then confirm executive branch appointees the other half of the day.
“I haven’t gotten an answer from the parliamentarian yet," said Biden, a former 36-year senator.
While a Senate conviction after Jan. 20 obviously would not force a premature ouster, it could prevent Trump – who has said he wants to run in 2024 – from ever being able to hold federal elective office again.
A precedent for impeaching an official after he’s left office dates to 1876. The House impeached War Secretary William Belknap on five articles including “criminally disregarding his duty as Secretary of War and basely prostituting his high office to his lust for private gain.”
But as the House prepared to vote, Belknap raced to the White House and resigned to President Ulysses S. Grant. That didn’t stop the House vote or the Senate trial with 40 witnesses. While a majority voted to convict Belknap, the votes fell short of the two-thirds required for conviction.
Invoking the 25th Amendment
Congressional Democrats said they'd prefer Trump's Cabinet utilize the 25th amendment and vote to remove the president from office. But Vice President Mike Pence has indicated he opposes such a move and those Cabinet members who might have contemplated such a step, notably Transportation Secretary Elaine Chao and Education Secretary Betsy DeVos, quit last week.
On Tuesday, the House is scheduled to vote on a resolution by Rep. Jamie Raskin, D-Md., calling on Pence to invoke the 25th amendment to remove Trump.
James A. Gardner, a constitutional law scholar at the University of Buffalo School of Law, said the Cabinet couldn't do much to remove Trump in the coming days even if they wanted to invoke it because the amendment was designed to deal with situations where a president becomes too ill physically or mentally to fulfill his duties.
“Trump is not physically unable to serve, nor is he any more ill mentally than he was the day he took office," Gardner said. "The objection to Trump is not his inability. It is that he uses his abilities in terribly destructive ways."
Convincing Trump to resign
This is the least likely scenario considering the president has remained defiant in the face of mounting criticism and has shown no indication he would step down. On Tuesday, he travels to Texas to mark the completion of more than 400 miles of border wall.
In a tweet late Wednesday, Trump called for calm but continued to spread falsehoods about the election. Twitter required he remove the offending tweets then wait 12 hours to regain access. Two days later, Twitter permanently banned him from the social media platform after he tweeted he would not be attending Biden's inauguration.
In 1974, personal appeals by Barry Goldwater of Arizona and other GOP senators who went to the White House helped convince Richard Nixon to resign the presidency following the Watergate scandal. No such effort appears likely this time as none of the Republicans who would suggest such a move are among Trump's inner circle.
Many Democrats have called for Trump’s ouster. But Sen. Lisa Murkowski, R-Alaska, became the first Republican senator on Friday to call for Trump’s resignation. Sen. Pat Toomey, R-Pa., joined her Sunday in calling for the president to step down.
This article originally appeared on USA TODAY: Impeachment, 25th Amendment: Congress' options for removing Trump