How Democrats Will Move on Impeaching Trump in His Last Week

(Bloomberg) -- Democrats are moving quickly to hold President Donald Trump accountable for the storming of the U.S. Capitol by a mob of his supporters, with House lawmakers on course to possibly make him the only president in U.S. history to be impeached twice.

Speaker Nancy Pelosi said the House will begin voting Monday on a resolution calling on Vice President Mike Pence to invoke the 25th Amendment to have the Cabinet declare Trump unable to carry out his duties. She said the House will begin voting on Trump’s impeachment as soon as Wednesday.

The main challenge is the short timeline before Trump’s final day as president on Jan. 20, when Joe Biden will take the oath of office. The way the process is handled in the House and Senate will affect how quickly Biden will get his Cabinet confirmed and his legislative agenda moving.

Here’s a look at some of the options on the table as Washington grapples with the aftermath of last week’s violence.

Pelosi’s plan for this week

• On Monday, Democrats will introduce several versions of impeachment articles, one of which has nearly the entire House caucus as cosponsors. In the 11 a.m. session, Democrats will also try to pass without objection a resolution calling on Pence and the Cabinet to remove Trump from office using the 25th Amendment.
• This is all but certain to fail because just one member can block it. If so, then the measure will be put on the floor for a full House vote on Tuesday. The resolution gives Pence 24 hours to respond.
• If Pence and the Cabinet don’t act to remove Trump from office, the House will begin the process of voting on impeachment as soon as Wednesday.
• Pelosi said Democrats would also discuss using a provision of the 14th Amendment, which was added to the Constitution after the Civil War to prohibit any government official who participated in or supported an insurrection against the U.S. from holding office in the future.
• House Democrats will have a conference call at 12 p.m. Monday to discuss this plan and other options. Republicans will have a call at 4:30 p.m. Monday.

No sign that Pence, Cabinet would act

The House’s 25th Amendment resolution gives Pence 24 hours to “declare what is obvious to a horrified Nation: That the President is unable to successfully discharge the duties and powers of his office.“ The measure is non-binding.

The amendment, added to the Constitution after John F. Kennedy’s assassination, provides a way to remove the president, either temporarily or permanently. It can be exercised with or without the president’s consent if the president becomes ill or is deemed unfit for office.

Though Pence has expressed some displeasure with Trump for putting him in the difficult position of having to rule against the president’s wishes during the Electoral College count, he has given no indication that he would be willing to invoke the 25th Amendment and has privately dismissed the action, according to a person familiar with the matter.

Even if Pence and a majority of the president’s Cabinet were to invoke the 25th Amendment, Trump could contest the move, kicking the whole matter to Congress for consideration. In that case, two-thirds of both chambers would have to back the president’s removal.

House plans impeachment vote

Several members of Congress have circulated articles of impeachment. An article authored by Representatives Ted Lieu, David Cicilline and Jamie Raskin has at least 210 co-sponsors and will be introduced Monday, according to the members. Representative Ilhan Omar said she also expects to introduce two articles of impeachment on Monday. And Representative Sheila Jackson Lee has drawn up articles of impeachment.

Pelosi said the House will begin voting on impeaching Trump as soon as Wednesday, which would require only a simple majority in the House. Some Republicans, including Trump-critic Adam Kinzinger, have indicated they would vote in favor of impeachment. But Trump still has support among House Republicans, including House Minority Leader Kevin McCarthy and House Minority Whip Steve Scalise.

McCarthy and Scalise were among the 121 Republicans who voted to reject the electoral results from Arizona and the 138 Republicans who voted to reject Pennsylvania’s results, even after the attack. McCarthy has argued that impeaching Trump “will only divide our country more.”

There currently are 222 Democrats and 211 Republicans in the 117th Congress. In December 2019, when Democrats had a larger majority, the House voted 230-197 to charge Trump with abuse of power and 229-198 to charge him with obstruction of Congress for soliciting help from the Ukrainian president to dig up dirt on Biden, who was then one of several candidates vying for the Democratic nomination.

Convicting Trump would be in hands of Senate

A House vote to impeach Trump for a second time would send the matter over to the Senate for another trial. A year ago, after his first impeachment by the House, Trump escaped conviction by senators.

Proceedings in the Senate are likely to wait until after he leaves office, in part because the chamber is on recess until Jan. 19. With two new Democratic senators from Georgia still to be sworn in, Republican Mitch McConnell will be majority leader until the Senate reconvenes.

House Democrats may decide to wait on handing their impeachment of Trump over to the Senate for adjudication to allow senators to focus on getting Biden’s agenda launched, including confirmation of his Cabinet picks. That’s because once the Senate receives impeachment articles from the House, all other business must be put on hold.

Representative James Clyburn, the No. 3 House Democrat, has suggested the chamber could hold the articles of impeachment for 100 days or more to avoid sidetracking the beginning of the Biden administration. The president-elect has expressed concern that an impeachment proceeding risks becoming a distraction.

Preventing Trump from running again

Pelosi also mentioned the Constitution’s 14th Amendment, a post-Civil War measure to prohibit any government official who participated in or supported an insurrection against the U.S. from ever holding a state or federal governmental position again.

A resolution citing the 14th Amendment may not require the same two-thirds Senate vote as an impeachment conviction, and it would sidestep a lengthy trial. The measure could declare that those who participated in or gave “aid or comfort” to the attack were in violation of Section 3 of the 14th Amendment.

Deepak Gupta, an appellate lawyer who has argued different 14th Amendment cases before the Supreme Court, said he believes Wednesday’s attack to be a textbook definition of insurrection: A group of people using force to prevent the government from lawful acts. Whether Trump’s incitement would make him a guilty party is a different question, but Gupta believes it would be an act covered by the constitutional provision.

The amendment was last invoked in 1919, when former Representative Victor Berger, the first socialist elected to Congress, was prevented from being seated due to a conviction, later overturned, related to his opposition to U.S. involvement in World War I.

But after the Supreme Court overturned Berger’s conviction in 1921 he was again elected to the House and seated without objection. The constitutional amendment allows Congress to overturn the ban by a two-thirds majority.

Resignation would be quick, but unlikely

Calls have come from members of parties for Trump, like former President Richard Nixon, to resign. Pennsylvania Senator Pat Toomey said on Sunday it would be the most expedient resolution. It also appears to be the least likely outcome.

“It does not look as though there is the will or the consensus to exercise the 25th Amendment option. And I don’t think there’s time to do an impeachment,” Pennsylvania Senator Pat Toomey said on NBC’s “Meet the Press.” “The best thing would be a resignation.”

In Nixon’s case, he was confronted on Aug. 7, 1974 by three senior congressional Republicans, Senate Minority Leader Hugh Scott, House Minority Leader John Rhodes and Senator Barry Goldwater. They made it clear to him that his political support had collapsed and he faced almost certain impeachment in the House and conviction in the Senate for his role in the Watergate scandal. Nixon, who had already been considering the move, resigned two days later.

Trump by contrast still appears to have significant support among GOP voters and there is scant public support among Republicans in Congress for impeaching him. In a show of defiance, he is planning a visit to the U.S.-Mexico border area in Texas this week to highlight the building of a wall on the frontier, a new round of pardons and a renewed fight against the social media companies that have suspended him from their platforms in the wake of the events of Jan. 6.