Impeach Trump or Invoke the 25th Amendment? | The Daily Star
12:00 AM, January 11, 2021 / LAST MODIFIED: 12:22 AM, January 11, 2021

Impeach Trump or Invoke the 25th Amendment?

Inspired by Mussolini's march to Rome, on November 9, 1923, Hitler and his SA goons attempted the "Munich Putsch"—what Hitler thought would be a triumphant march to seize power from the Weimer Republic reeling from economic crisis. The attempt was foiled, and Hitler was prosecuted for "high treason", yet, given a lenient sentence of five years imprisonment. He spent his time in prison writing the "Mein Kampf"and setting out his political beliefs. What will remain one of history's great unknowns is, what if he was given a harsher sentence or prevented from ever holding public office? 

The clamour to remove President Trump is increasing after his incitement led to unprecedented "insurrectionist" scenes at the Capitol aimed to upend a democratic transfer of power. This has received bi-partisan condemnation, with several members of the cabinet resigning and senior figures of the GOP, complicit in the president's peddling of misinformation, belatedly, distancing themselves. The administration is in its death throes, with Trump, finally, changing his rhetoric from "you are special" and "we love you" to a straightforward condemnation after a day. The election winners have been certified and on January 20, Trump will leave the White House. Yet, the danger he presents remains.

Democratic leaders have called on Vice President Pence to invoke section 4 of the 25th Amendment of the US Constitution. This will only work, if the VP and majority of the cabinet declares in writing that the president is unable to discharge his powers and duties, thus removing him from office temporarily, with the vice president assuming the role of actingPresident. Trump may declare himself "able", in which case the VP must issue another declaration of incapacity within four days (he remains acting president for four days and if a declaration is not issued, Trump resumes presidential role). If a second declaration is issued, then the matter goes to Congress and both houses have 21 days to make a decision. Since Trump's presidency is numbered, the clock will run out. Thus far, there is no appetite to do so, despite the clear evidence of Trump's unhinged behaviour, fomenting his base and a detachment from reality that he lost the election.

Failing the invocation of the 25th Amendment, Democrats have threatened impeachment—a second time. This is the right course of action. Impeachment does not only entail removal from office but can also disqualify Trump from holding future public office. Article 1 Section 3 clause 7 of the US constitution allows the Senate to impose a penalty preventing Trump from ever holding public office. Conviction in the Senate requires a two-third majority but there are precedents of impeachment of federal judges where disqualification from holding future office has only required a simple majority.

West Hughes Humphreys, a federal judge impeached in 1862, for supporting the secession of the southern states was convicted and removed from his post by the senate. One of the articles of impeachment against Humphreys was "inciting revolt and rebellion". Unlike conviction, disqualification is a discretionary judgment and one which has been decided by simple majority rules in the Humphreys trial and again in 1913, in the trial of federal judge Robert Archibald for enriching himself. The Senate used the Humphreys trial as a precedent in the trial of Judge Ritter for attempted embezzlement, filing false income tax returns amongst other allegations of impropriety in 1936 and found guilty of "bringing the judiciary into disrepute". The Senate held that a simple majority requirement would be sufficient for disqualification from holding future office but decided not to impose the penalty.

No US president ever had to face the ignominy of disqualification being imposed upon them as a penalty. But Trump is no ordinary president. He spoke of "American carnage" on his inauguration and during the tenure of his office have repeatedly eschewed customary norms expected of the office he holds. He is a narcissistic demagogue, a proven liar who would much rather lay waste to democratic practices than accept his failure. In the four years of his presidency, he has lost his re-election, the Congress and following the Georgia run off the Senate is now evenly divided with Vice President-elect Harris holding the tiebreaker vote. However, it would be a fallacy to think that he is defeated. He has fractured and debased Lincoln's party to a point where Republicans are afraid of his base and their electoral chances, keeping silent and adopting a policy of appeasement. Just days before the Capitol riots, Trump has asked elected Republican Secretary of State of Georgia to "find" him 11,780 votes. He has incited a violent riot against the most important tenet of a democracy—that of a peaceful transfer of power. This is a "high crime". If federal judges can be disqualified upon conviction and in Humphrey's case, for inciting revolt, then why not a US president?

There are different theories amongst scholars if a president can be impeached when he leaves office. Congress should not wait. It has a duty to protect the Republic from insurrection, even one directed from the White House. Trump should be held accountable and rightly impeached and if convicted on a two-third majority, should be disqualified on a simple majority from ever holding office. Invoking, the 25th Amendment will remove him temporarily, leaving open the possibility of a return.

An errant Trump action in the last days of his presidency has global implications. Since the killing of Qassem Suleimani and Abu Muhandis by drone strike, an Iraqi court has issued an arrest warrant for Trump. Iran has already asked Interpol to issue a 'red notice' for US officials including Trump. Recently, Trump sought military options against Iran and had to be dissuaded from ordering a full attack but he may already have allowed covert forms of actions. The assassination of Mohsen Fakhrizadeh-Mahabadi, Iran's leading nuclear scientist is unlikely to have taken place without US knowledge. Iran blames Israel for the assassination. The timing of the assassination is eerily similar to the events of 2009. In the last days of the Bush presidency, Israel requested air strikes against Iranian nuclear installations—a request which was refused. The incoming Biden administration is inclined to re-join the Joint Comprehensive Plan of Action—a move that is being anticipated and thwarted by Trump loyalists. Netanyahu, already indicted on corruption charges, is facing the fourth national elections in two years in March. It is a volatile situation in the region even without considering the wars in Yemen and Syria. Daniel Ellsberg, the former military analyst who leaked the Pentagon Papers showing US lies in the Vietnam war, fears Trump may provoke a war with Iran. House Speaker Pelosi spoke to chairman of joint chief of staff to ensure that Trump cannot launch a nuclear strike in the dying days of his presidency. In an unprecedented move, all living former US defence secretaries have written an op-ed to not involve the military in election dispute. Those who served in the upper echelons of the power structure fear the erratic behaviour of a desperate Trump which may have severe geo-political consequences.

Trump loyalists will not fade away. His rhetoric and dog whistle racism has unleashed the basest instincts in the form of xenophobia. Mainstream social media ban on Trump will incubate those sentiments in another eco-system that he promises to create. Already, droves of his followers have moved to sites like Parler, which has been asked to moderate its content or risk censure. Trump's war chest has been replenished in the aftermath of his election defeat, by peddling lies of election fraud and seeking donations for legal fights which were funnelled to his PACs. Post presidency, he is equally dangerous, plotting his return.

Hitler's 5-year imprisonment was a hiatus used to nurture and weaponize xenophobic and anti-Semitic sentiments in the body politic. While the Munich march failed in 1923, by 1933 the Nazis were in power, having won electoral mandate. 70 million Americans voted for Trump. More than 70 percent Republicans believe Trump's lies that the elections were fraudulent. Democracy will wither without citizen trust. If he is not impeached for his crimes and disqualified from ever holding office, he may well return with vengeance. Can the USA afford to take this chance? Can the world?


Bahzad Joarder is an Associate Tutor at the University of Warwick.

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