Following the invasion of the Capitol by Trump supporters on 7 January 2021, and the President’s apparent encouragement of, and failure to condemn, the action, there have been calls for him to be:
- removed from office under the twenty-fifth Amendment to the U.S. Constitution; or
- impeached; or
- removed under the amendment and impeached.
The Twenty-Fifth Amendment
The amendment was ratified in 1967 following the death of President Kennedy, which exposed the deficiencies in the Constitution with regard to the protocols for presidential and vice-presidential succession.
The relevant section in the present case is Section 4 which provides that the vice-president ‘and a majority of either the principal of the executive department officers [i.e. the 15 members of cabinet] or of such other body as Congress may by law provide’ may declare ‘that the President is unable to discharge the powers and duties of his office’. If this declaration is made, the vice-president becomes acting president.
The question is one of construction; what is meant by ‘unable to discharge the powers and duties of his office’. Clearly, a president who has been incapacitated by physical or mental illness, or an accident, or an assault may fit the definition, and this is no doubt what the proposers of this amendment had in mind following Kennedy’s assassination. Indeed, the amendment has only been invoked briefly for medical reasons, such as on the occasion Ronald Reagan had to undergo surgery. But this does not apply in the present case.
Or does it? The Speaker of the House of Representatives, Nancy Pelosi, has called Donald Trump ‘unhinged’ and The Washington Post reports (Jan. 7, 2021) that ‘some politicians and experts argue that Trump has met those standards [the inability to discharge his duties] by encouraging violence through his incendiary rhetoric and by refusing to accept the reality of his defeat.’
The Post goes on to report that Democratic members of the House Judiciary Committee wrote to Vice President Mike Pence to say that Trump was ‘not mentally sound’ and that his willingness to invite violence and social unrest to overturn the election results by force clearly meet this standard’
The full article is available, behind a pay-wall, at https://www.washingtonpost.com/nation/2021/01/07/25th-amendment-pence-trump/
The question may be moot. As the amendment makes clear, a president may not be removed without the involvement of the vice-president, and Pence has stated that he will not be invoking the Twenty-Fifth.
If the Twenty-Fifth is a no-go, an alternative action against President Trump is impeachment. As I write, it appears that Speaker Pelosi is prepared to proceed with impeachment for Trump’s role in inciting the attack on the Capitol. Trump would be the first President in history to face impeachment twice.
Impeachment is essentially an indictment – an accusation of criminal behaviour – by a legislative body against a public officer.
In the UK, the two Houses of Parliament – the Commons and the Lords – may theoretically try any person for any crime. Impeachment was first used in England in 1376 against a noble (a person of high rank), soldier and diplomat called William Latimer (convicted then pardoned) and its last use was in 1806 against Henry Dundas, 1st Viscount Melville (acquitted).
Impeachment is obsolete in the UK, its role having been taken over by select committees, which oversee the work of government departments and agencies and judicial review, the process by which the judiciary may pronounce on the legality of executive action.
In the past, impeachment was actually a privilege for some! Historically, nobles – also called peers – had the right to be tried in the House of Lords. This right was only abolished in 1948.
In the U.S., the accused person remains in office during the trial. Under Art. I of the U.S. Constitution, it is the House of Representatives which has the ‘sole Power of Impeachment’ and the Senate has the ‘’sole Power to try all Impeachments’.
Black’s Law Dictionary describes impeachment as:
‘ a proceeding against a public officer for crime or misfeasance, before a quasi judicial court, instituted by a written accusation called articles of impeachment; for example, a written accusation by the House of Representatives of the United States to the Senate . . . against the President.’
Focus on Legal English
The following words appear in the text above. Can you answer the questions about them? (Answers in the next blog)
Impeachment derives from the Old French word empescher (modern word empêcher) meaning to prevent. This in turn came from the Latin impedicare which expresses the idea of catching or ensnaring by the foot (pes, pedis).
Can you think of other English words which mean prevent or something similar?
To indict is to make an accusation of criminal wrongdoing. But with which of the following words does the second syllable – dict – rhyme?
Cabinet derives ultimately from the Italian gabinetto and means a case or cupboard, usually with shelves or drawers.
It also means ‘a committee of senior ministers responsible for determining government policy’ (Oxford English Dictionary).
Do you know, or can you guess its meaning in the context of the institutions of the European Union?
Toppling the Top Dog
Tony Benn, a famous left-wing post-war politician in Britain, said that five questions should always be put to people in power. These are:
- What power have you got?
- Where did you get it from?
- In whose interests do you use it?
- Who are you accountable to?
- How do we get rid of you?
History is littered with revolutions, overthrows, mutinies, coups, uprisings, ejections, expulsions, displacements, insurrections, deposals, putsches, shovings aside and ‘Nurse! The screens!’ moments. Here are some famous ones.
- Out: King George III In: The Prince Regent.
It was on long-reigning British King George III’s watch (1760 – 1820) that Britain lost most of its colonies in North America, although he also oversaw Napoleon’s ultimate defeat at Waterloo in 1815.
He suffered mental illness toward the end of his reign, so a regency was established enabling his son, the future George IV, to become Prince Regent and rule as his father’s proxy.
The Prince Regent was named after Regent Street in London. He liked gambling, drinking and dressing up a bit.
- Out: Roman Republic In: Julius Caesar
Julius Caesar was a Roman general who fought against the Gaulloises (sadly he never succeeded in giving them up) and invaded Britain in 55 BC. After establishing Britain’s first pizzeria (O Sole Mio in Margate) he headed home, stopped at a river called the Rubicon, said ‘alea jacta est’ (the die is cast) and marched on Rome, starting a civil war which he won. In this way, he became the first of the Roman emperors.
The expression crossing the Rubicon derives from this moment in history. It means to take an action from which there is no going back.
Julius Caesar was murdered by William Shakespeare in 1599.
- Almost Out: King James I Almost In: Guy Fawkes
In 1605, catholic Guy Fawkes and a group of fellow conspirators attempted to blow up protestant King James I and the British Parliament in what has come to be called the Gunpowder Plot. They failed, were caught and got community service by being hanged, drawn and quartered.
To this day, Guy Fawkes Night is celebrated with fireworks in England. Children are encouraged to burn effigies of Guy Fawkes on bonfires. Nobody objects to this.
Bonfire Night celebrates the failure of the Gunpowder Plot (courtesy, Getty Images)
- Out: William Bligh In: Fletcher Christian
In 1789, while mobs in France were storming the Bastille and toppling Louis XVI’s Ancien Régime, another smaller revolution was taking place on British ship HMS Bounty in the South Pacific Sea.
The crew had had enough of Captain William Bligh’s despotic leadership and so, led by Lieutenant Fletcher Christian, they mutinied, put the captain in a little boat in the middle of the ocean and went off to hide on the Pitcairn islands. Bligh brilliantly managed to navigate his way nearly 4000 miles to safety in Timor from where he wrote to his wife Betsy to complain that he had been ‘run down by [his] own Dogs’.
The mutineers’ hiding place wasn’t discovered until 1808, by which time, with the exception of one man, they had all died, mostly murdered by each other or the Polynesian natives. Their descendants live on Pitcairn to this day. In 2004, some of them, including Steve Christian, the mayor at the time, was convicted with six other men on charges of sexual assault.
- Out: Prime Minister U Nu In: General Ne Win
In 1962, General Ne Win ousted Prime Minister U Nu in a military coup in Burma. This is where we get the expressions no-win situation and who knew?