Emoluments, the 25th Amendment, and Impeachment: How President Trump Could get Himself Fired
The ship is sinking. That much has become obvious by now to just about everyone involved in or following U.S. politics, with the exception of Trump surrogates on cable news and his allies in Congress. It took Time magazine, the publication Trump has famously obsessed over, less than three weeks after the President’s inauguration to come out in favor of impeachment.
The share of the American public that disapproves of Trump’s job performance ranges from 43%-56%, depending on your poll of choice — an unprecedented disapproval rating for any modern President only a month into their first term.
Trump’s first thirty days in office were marked by fits and starts of scattershot political activity, mostly dominated by backlash to his executive order attempting to fulfill a campaign promise to enact a ‘Muslim ban’ and several looming investigations into his relationship with Russia, capped off by the resignation of National Security Advisor Michael Flynn — the first tangible casualty of the Russia scandal.
As numerous Congressional investigations remain underway, the President only further isolates himself by holding incoherent, combative press conferences and acting so erratically that intelligence agencies need to withhold information from him. Since taking office it has become alarmingly clear just how untethered from reality Trump truly is — prompting many to speculate about his mental state and the various personality disorders he may be suffering from.
All of this tends to inspire similar conclusions in the minds of most rational political observers, particularly: a concern for just how far this can go before President Trump is forcibly removed from office, and a curiosity as to what it would actually take to make that happen. Considering that I’ve often found myself wondering the same thing, this one-month milestone in Trump’s tenure on President’s Day seems as apt a point as any to begin exploring the different ways the President might realistically end up finding himself unemployed before his term is up.
Emoluments
It’s fair to say that if Donald Trump wasn’t the President today few people reading this (myself included) would have any idea what an “emolument” even is, nor would we have a clue what the emoluments clause of the Constitution is.
We would be forgiven, however, considering that the clause has faded into obscurity and never been used in court since the forty-nine words it consists of were drafted by our founding fathers. Intended to curb the potential corruption of U.S. ambassadors by wealthy foreign powers, the emoluments clause in it’s entirety reads:
“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
Whether President Trump is violating the clause or not comes down to a crucial detail of how it will be interpreted in the current lawsuit against his administration. His lawyers argue that the clause only applies to straight-up gifts, not payments for services — as numerous foreign governments are already making to various parts of Trump’s business empire.
The watchdog group filing the lawsuit argues that the emoluments clause does, in fact, apply to the payments from foreign states that President Trump is receiving for services offered by his numerous businesses. The group calls themselves Citizens for Responsibility and Ethics, and their attorneys include ethics lawyers from both the Obama and Bush White Houses.
Even if the lawsuit were to succeed, it is unclear what exactly that would mean and what specifics a judge’s ruling could entail. One possibility is that a judge might agree with the argument being made, but find the suit filed by Citizens for Responsibility and Ethics to lack sufficient standing considering their status as a watchdog group.
Although there could still be legal merit to claims that the President is violating the emoluments clause, businesses who can prove they’ve lost revenue to Trump owned companies might actually be the best positioned to bring a suit. One example of such a business would be the Four Seasons in Georgetown, where the Kuwaiti Embassy had held their annual ‘National Day’ celebration for years before moving the event to Trump’s D.C. hotel this year.
All the Four Seasons has said so far is that they are looking into the emoluments clause, but have not decided what legal actions they will or will not pursue.
The 25th Amendment
The twenty-fifth amendment to the U.S. Constitution was first proposed in 1965 and later adopted in 1967. Intended to clarify the procedures for filling a Presidential vacancy following the Kennedy assassination, the amendment allows for some interesting, although highly unlikely, eventualities.
Most importantly, the amendment made what was previously called the ‘Tyler precedent’, the responsibility of a Vice President to fulfill the office of President upon a President’s death or incapacitation, part of official constitutional law.
The amendment also allows for a President to appoint a replacement subject to congressional confirmation should the office of Vice President become vacant, and to submit a written declaration of their own inability to perform their duties as President to the President pro tempore of the Senate and the Speaker of the House of Representatives, upon which the Vice President would become acting President. Per the amendment, the President could then submit another declaration at a later date stating that their inability to perform their duties is over, restoring their office.
The twenty-fifth amendment also allows for the Vice President, along with “a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide” to submit a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives stating that the President is no longer able to discharge the duties of his office, upon which the Vice President would become acting President.
While the specter of a coup on behalf of Trump’s own cabinet or some vague Congress-created body led by Vice President Pence seems highly unlikely, that hasn’t stopped the twenty-fifth amendment from getting a disproportionate amount of attention lately — from MSNBC to Breitbart.
Ultimately, questions regarding the amendment tend to center around concerns over President Trump’s mental health.
While numerous popular articles have raised the issue lately and Senator Al Franken joked recently that even some of his Republican colleagues worry about the President’s state of mind, it still seems far-fetched that enough members of Trump’s inner circle would turn on him in such a dramatic fashion unless they were absolutely sure of his insanity and felt they had no other options.
Additionally, even if the President’s own cabinet voted to effectively fire him as the twenty-fifth amendment allows for, the amendment also allows the President to submit their own letter to Congressional leadership declaring that they are, in fact, fit for office.
Considering Trump’s trademark refusal to go down without a fight, should such an unlikely disagreement arise between the President and his cabinet Congress would then be tasked with assembling to resolve the issue within twenty-one days by a two-thirds vote of both Houses, a process not dissimilar to the most likely way President Trump could lose his job —
Impeachment
Impeachment is the formal process by which President Trump would have to be removed from office, originally created as an enumerated power of the legislature in the U.S. Constitution.
Beginning in the House of Representatives, impeachment proceedings can be initiated in any committee and be brought by any member. They are then voted on and eventually sent to the full floor for either an all-at-once vote or a series of votes on each individual article of impeachment. The House decides by a simple majority whether or not to move forward with the impeachment, after which the articles are tried in the Senate.
Historically, only two Presidents have ever been impeached by the House (a somewhat surprising record considering the procedure only requires a simple majority) — Andrew Johnson and Bill Clinton. Both were later acquitted during their Senate trials. The only other President to have articles of impeachment brought before the full house was Richard Nixon, however he resigned before they could be voted on.
Following the impeachment of a President by the House of Representatives the Senate holds a trial in which ‘managers’ appointed by the House represent the prosecution, the President’s administration provides a defense, and the Chief Justice of the Supreme Court presides.
At the conclusion of the trial the Senate votes on whether to deliberate publicly or privately, and following those deliberations votes on the articles of impeachment. A two-thirds majority of at least sixty-seven votes in the Senate is required to convict an impeachment and remove a President from office, a threshold that was not reached in either of the two impeachment trials the U.S. Senate has held.
This means that impeaching President Trump would almost certainly have to be a bi-partisan affair. However, considering that most Congressional Republicans have already hitched their wagon to the Trump train (even if it’s come off the rails) the odds are slim (barring some dramatic, earth-shattering revelations, even by Trump standards) that any articles of impeachment will be heard by the House at least until the next mid-term election when Democrats have a chance of reclaiming a majority in the chamber.
If Democrats ride a national wave of anti-Trump sentiment to retake the house in 2018 and subpoena President Trump’s tax returns, a move currently being prevented by Republicans who control the chamber, it’s almost certain they’ll find significant grounds on which to base numerous articles of impeachment.
Then the decision would ultimately come down to Republicans in the Senate. A lot has been made of the phrase ‘putting country before party’ lately, and this would likely end up being the ultimate test for vulnerable Senators. Even if Democrats have recovered their majority in the Senate after the 2018 elections, they will be nowhere near the two-thirds majority needed to convict an impeachment on a party-line vote.
Therefore, impeachment must be bi-partisan. The House would have to present such a compelling case to the Senate (the trial would probably be the media spectacle of a lifetime, I can only imagine what Trump’s twitter feed would look like) that they convince around twenty Republican Senators to vote for impeachment.
While not impossible, it’s also quite possible that the House convicts Trump and the Senate then acquits him — as they did for Presidents Johnson and Clinton.
Regardless, two things are clear already — if President Trump were impeached it would be an unprecedented event in U.S. history, and it’s hard to imagine a scenario in which President Pence or the Republican party as a whole come out unscathed from whatever revelations an impeachment trial might bring to light.