David Priess and Jack Goldsmith write:

The hours since Wednesday afternoon have seen a tidal wave of calls for Donald Trump to lose the powers and duties of the office for his role in the historic storming of the U.S. Capitol. There is a new push for impeachment. And news reports suggest that members of Trump’s Cabinet are considering invoking the 25th Amendment to take from Trump, in the words of the Amendment, “the powers and duties of the office” he holds. (We should note that this reporting is thinly sourced; Maggie Haberman of the New York Times reported last night that a source merely says “the 25th Amendment discussions are staff-based within the administration and with some Republicans on the Hill, and that they’re not particularly focused.”)

This comes on the heels of a very strange series of events from inside the executive branch, including a statement on Wednesday afternoon by the Secretary of Defense that after consulting with Vice President Pence and top congressional leaders—but seemingly not President Trump—he was “activating D.C. National Guard to assist federal and local law enforcement as they work to peacefully address the situation.”

Shortly before 4 a.m. this morning, a reconvened Congress finally confirmed President-elect Biden’s presidential victory. And then President Trump issued this statement: “Even though I totally disagree with the outcome of the election, and the facts bear me out, nevertheless there will be an orderly transition on January 20th.” But it is far from clear that Trump will stick by, or do what it takes to carry out, this pledge.

Talk of removing a president is easy. But getting rid of one is hard, as it should be in a constitutional republic with a well-established system for electing its leaders. Any decision to remove a president is also fraught with peril. This post reviews the basic law governing the questions about taking a president’s powers away.

1. What did the president do to trigger discussion of an urgent removal?

In brief, Trump summoned yesterday’s mob to Washington and incited it with pronouncements like “You’ll never take back our country with weakness.” The mob marched on the Capitol; breached, ransacked, and damaged the building; disrupted the constitutional process for counting electoral votes; and occupied the Senate chamber. Four people died. After seeing the destruction and terror that the mob wrought, Trump released a video and tweet justifying and effectively condoning its actions, while at the same time meekly calling for peace.

There is little controversy about Trump’s culpability in the day’s events. Liz Cheney of Wyoming, the third highest-ranking Republican in the House of Representatives, told FoxNews, “We just had a violent mob assault the U.S. Capitol in an attempt to prevent us from carrying out our constitutional duty…. There’s no question the president formed the mob, the president incited the mob, the president addressed the mob. He lit the flame.” Senator Mitt Romney said, “What happened here today was an insurrection, incited by the president of the United States.” And momentum appears to be building for something dramatic to be done about it; even Vermont’s Republican Governor Phil Scott tweeted “President Trump should resign or be removed from office by his Cabinet, or by the Congress.”

2. Can Trump be impeached and removed quickly enough to matter?

Yes, but Congress would have to roll back much of the pomp and circumstance it has developed around the process.

With his incitement of the attack on the Capitol building, Trump cleared the hurdle of “high crimes and misdemeanors,” which, along with treason and bribery, is a constitutional trigger for impeachment. Articles of impeachment could be finalized within minutes and voted on with minimal debate. The Senate could then immediately convene to try the president. The Constitution requires “ the Concurrence of two thirds of the Members present” for conviction. It does not, however, require a lengthy trial or specific procedure, even though Congress has developed elaborate rules to govern—and elongate—the impeachment and trial process. The Senate played fast and loose with its own rules to facilitate Trump’s acquittal a year ago and could do the same in the other direction if its members had the will to secure a quick conviction.

But therein lies the main rub. The House and Senate would need to meet to change their rules and allow an expedited process. Could it be done? Yes. Would it be easy? Not so much.

There’s a lot of machinery to move for that to happen in a timely fashion, and the president only has 13 days left in office. The president’s most rabid supporters in both chambers could still delay the rule changes needed to see this process through with due haste. And principles of justice would demand that President Trump, even in these circumstances, be afforded an adequate defense, necessarily prolonging any trial.

A second Trump impeachment, followed this time by conviction, would probably include the Senate’s disqualification of Trump from any future federal office, including the presidency—an option that only the impeachment and removal process offers. But the impeachment route takes a few days, even in a fastest-case scenario. In this intervening period an angry, vengeful Trump could do great additional damage. [Continue reading…]