Two law professors explain why it’s necessary to sideline the president, impeach him, convict him and prevent his return:
After a mob incited by President Txxxx stormed and occupied the Capitol, American democracy needs protecting now — and not just now but in the coming weeks and years as well.
There are reports of preliminary discussions within the administration about invoking the 25th Amendment, a provision in the Constitution that provides a process to declare a sitting president no longer capable of fulfilling his duties. Another call is coming from a surprising source: The National Association of Manufacturers, not normally an organization known for this kind of political activism, said that Vice President Mike Pence “should seriously consider working with the cabinet” to invoke the amendment to remove President Txxxx and “preserve democracy.” People are invoking the 25th Amendment on the grounds that Mr. Txxxx is not fit to hold office and incited the chaos that unfolded on Capitol Hill — and may unfold again.
There are also calls from a number of Democratic representatives to impeach and remove the president . . .
The magnitude of the current crisis calls for both of these measures. The threat the president poses to our democracy is not short-lived and must be cut off urgently and decisively — before it leads to even greater degradation to American democratic processes and traditions. It will need to happen quickly, even with other demands pressing on our country’s leadership . . .
To do this, the cabinet and Congress must deploy the 25th Amendment and impeachment in sequence.
First, Vice President Pence and a majority of the cabinet should invoke Section 4 of the 25th Amendment in order to make a declaration that Mr. Txxxx is “unable to discharge the powers and duties of his office.” This would immediately suspend, but not remove, Mr. Txxxx from the exercise of his presidential duties and appoint Mr. Pence as acting president. The 25th Amendment would not and should not be used as a lasting solution in a case of this kind, but rather as a temporary measure to sideline a demonstrably unfit and dangerous actor who is fueling anti-democratic action.
Second, the House should quickly draw up and pass articles of impeachment. And then the Senate should hold a fair — but immediate and efficient — trial both to remove President Txxxx from office and, as important, to disqualify him from serving in public office in the future. Precedent suggests that the Senate would likely need to hold two separate votes on removal and disqualification, although the disqualification vote may require only a simple majority to be approved, as opposed to the two-thirds vote necessary for removal from office.
Disqualification is necessary given Mr. Txxxx’s anti-democratic response to the 2020 election and the continuing danger that he will pose to constitutional norms if allowed to flirt with a return to power in 2024. Indeed, the importance of disqualification in this case is such that the Congress should proceed with impeachment even if Mr. Txxxx’s term in office has already concluded.
A public vote and rapid trial in the Senate would give much-needed legitimacy to actions to remove Mr. Txxxx from office. By forcing Republicans to stand up for democracy and against the president’s actions, it would also reaffirm bipartisan support for the fundamental principles of American democracy. Further, while the 25th Amendment is intended mainly for illness or other objective incapacities, impeachment offers an appropriate moral response to the president’s conduct, including incitement to violence and attacks on basic democratic norms.
Why do this with only about two weeks left in President Txxxx’s term? Because we must defend our democracy for all Americans, now. And we must preserve our democracy for future Americans. . . . And we must reassure the world, and especially would-be authoritarian regimes, about what United States policy will be on questions of freedom and self-rule now and in the future.
The Constitution does not protect against every threat currently facing our democracy. But it contains a range of useful safeguards. And it is high time to deploy them — with urgency.
Unfortunately, “some [Democratic] members fear that impeachment might trigger another violent episode”. The Republicans have the Sedition Caucus; Democrats have the Fear Caucus.