By Alicia Kubas and Laurie Jedamus
University Libraries Civic Engagement Committee

After the insurrection at the United States Capitol on Jan. 6, 2021 — with hundreds of Trump supporters swarming and entering the Capitol building in opposition to Trump’s presidential election loss — lawmakers are poised to remove Trump from office.

The three primary ways we are seeing this unfold is through impeachment, the 14th Amendment, or the 25th Amendment.

Impeachment

The U.S. House of Representatives impeached Trump for a second time on Jan. 13, 2021 after successfully passing House Resolution 24. This is the first time in history that a President has been impeached twice. However, Trump will not be removed from office unless the Senate holds a trial and finds him guilty. The trial is not slated to begin until Jan. 19 when the Senate reconvenes a day before Biden is to take office.

When the founding fathers wrote The Constitution of the United States they were fully aware of the possibility of corruption and abuse of power by elected and appointed officials alike, and thus introduced a series of checks and balances to address such a possibility, including the power of impeachment as a means of removing a corrupt official from office. In particular, according to Article II section 4 of the Constitution of the United States: “The President, Vice-President and all civil Officers of the United States shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

According to the Constitution, the House of Representatives has the sole power of issuing articles of impeachment (Article 1 section 2) while the Senate has the sole power of conducting a trial, presided over by the Chief Justice of the Supreme Court. If two-thirds of the senators vote in favor of impeachment, the official shall be removed from office (Article 1 section 3). There have been many cases where the House votes to impeach but the Senate acquits and the individual stays in office, including the first time the House impeached Trump in December 2019.

Freely available government resources

• S. House of Representatives, H.Res.24 – Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors. Introduced Jan. 11, 2021 and passed on January 13, 2021.

News articles to frame the issue

• Meg Wagner, Melissa Macaya, Mike Hayes, Melissa Mahtani, Fernando Alfonso III and Veronica Rocha, “House impeaches Trump for role in deadly Capitol riot,” CNN, January 13, 2021.
• Jacob Pramuk, “Trump becomes first president to be impeached twice, as bipartisan majority charges him with inciting Capitol riot,” CNBC, Jan. 13, 2021.

Library resources

• Bowman, F. (2019). High crimes and misdemeanors : a history of impeachment for the age of Trump. Cambridge, United Kingdom: Cambridge University Press.

For more information about the history of impeachment, see the A Matter of Facts: Impeachment article posted in December 2019.

14th Amendment

The 14th Amendment, passed in the aftermath of the Civil War, is best known for granting citizenship, the right to due process, and equal protection under the law to “all persons born or naturalized in the United States,” including former enslaved people.

A lesser known section of the amendment, Section 3, bars any public official who has previously taken an oath to support the Constitution of the United States from holding any civil, military, or elected office if they are found to have “engaged in insurrection or rebellion against” the Constitution of the United States. Thus, the 14th Amendment would not remove President Trump or other politicians who supported the insurrection from office, but it would bar them from holding office again in the future.

Freely available resources

• Magliocca, G. N. (2020). “Amnesty and Section Three of the Fourteenth Amendment.” Research Paper Forthcoming. Available as preprint from SSRN.

News articles to frame the issue

• Michael S. Rosenwald, “There’s an alternative to impeachment or 25th Amendment for Trump, historians say,” The Washington Post, January 12, 2021.
• John Nichols, “Here’s How a 14th Amendment Strategy Could Bar Trump From Ever Holding Office Again,” The Nation, January 13, 2021.
• MaryAlice Parks, “Democrats cite rarely used part of 14th Amendment in new impeachment article,” ABC News, January 12, 2021.

25th Amendment

The 25th Amendment to the Constitution, ratified in 1967 following John F. Kennedy’s assassination, sets out the procedures for replacing the President or Vice President in the event of death, removal, resignation, or incapacitation.

According to interpretation from experts at The National Constitution Center, “Section 4 of the 25th Amendment addresses the …. case of a President who may be unable to fulfill his constitutional role but who cannot or will not step aside.”  It is also intended to avoid the possibility of two people both claiming to be president at the same time. Under Section 4,

• The Vice President and a majority of the Cabinet vote on whether to declare that the president is unable to perform the duties of his office. Only the heads of the 15 executive departments (Dept. of State, Dept. of Education, etc.) are considered Cabinet members for the purposes of this decision. If a majority of the Cabinet votes that the President is unable, the Vice President becomes the Acting President.
• At this point, the President can choose to declare that “no inability exists.” If this happens,
  • The Vice President and the Cabinet have four days to respond. During this 4-day period, the Vice President continues to serve as the Acting President.
  • If the Vice President and the majority of the Cabinet declare that the President is now able to serve, the President resumes his “powers and duties.”
  • If they again declare that he is “unable,” The Vice President remains in power, and Congress convenes within two days. They deliberate for up to 21 days, then vote.
  • If Congress “determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office” (25th Amendment, Section 4).

In his book, Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment, Brian Kalt, Law Professor at Michigan State University, has put together a flowchart to help visualize how this process can play out with invoking the 25th Amendment.

News articles to frame the issue

• Perry Bacon Jr., “What The House Vote On The 25th Amendment Says About Impeachment,” FiveThirtyEight, January 12, 2021.
• Brian C. Kalt, “The Entire Point of the 25th Amendment,” The Atlantic, January 8, 2021.
• Melissa Quinn, Grace Segers, Kathryn Watson, Sarah Lynch Baldwin, “House calls on Pence to invoke 25th Amendment, but he’s already dismissed the idea,” CBS News, January 13, 2021.

Library resources

●      Kalt, B. (2019). Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment. New York, NY: Oxford University Press.

Freely available resources

• The National Constitution Center (text and interpretation)

University of Minnesota topic expertise

Larry Jacobs: McKnight Presidential Chair in Public Affairs, the Walter F. and Joan Mondale Chair for Political Studies, and director of the Center for the Study of Politics and Governance in the Hubert H. Humphrey School and the Department of Political Science at the University of Minnesota

Heidi Kitrosser: Robins Kaplan Professor of Law

Alicia Kubas: Government Publications & Data Librarian

Mary Schoenborn: Public Policy Librarian

Raphael Tarrago: Librarian for Political Science

See also: Center for the Study of Politics and Governance