The era of Donald Trump as president ends January 20, when Joe Biden is inaugurated. Democrats, however, are calling for Trump's swift removal by the 25th Amendment after the US Capitol siege. But is this feasible?
Could the storming of the US Capitol lead to Trump's removal from office?
The counting of Electoral College votes at a joint session of Congress was halted Wednesday, when supporters of President Donald Trump stormed the US Capitol. The tally, and later the confirmation of Joe Biden as the next president, was resumed and finalized. Four people died during the incident, and 52 others have been arrested.
Democrats and some Republicans have since said Trump incited an insurrection by egging on his supporters. Congressman David Cicilline and other Democrats wrote a letter to Vice President Mike Pence urging him to invoke the 25th Amendment and remove Trump from office.
The letter said Trump sparked an insurrection and "sought to undermine democracy." It accused Trump of being "not mentally sound." This latter claim is difficult to independently substantiate. Trump’s role in stoking this unrest, however, is not.
Speaking at a rally that morning, Trump told protesters: "We’re going to walk down to the Capitol — and we’re going to cheer on our brave senators and Congressmen and women." He told his supporters the presidential election had been "the most corrupt election in the history, maybe of the world."
For opponents seeking the early dismissal of Trump, two legal avenues could be pursued: invoking the 25th Amendment, or impeachment.
Proceedings can be launched by the House of Representatives, which requires a majority for impeachment, a constitutional term for indictment. The articles of impeachment then head to the Senate. This chamber holds a trial and votes on whether to convict the president. Only if two-thirds vote in favor of conviction can a president be removed from office.
"Where the confusion comes is (that) the word 'impeachment' is just a constitutional term for indictment. Impeachment does not mean removal. If a president is impeached, then the president is tried in the US Senate. And the key point (in this hypothetical situation) is simply to actually remove a president," Anthony Gaughan, a US constitutional law expert and law professor at Drake University, told DW.
How does the 25th Amendment work?
The other way a president could have his or her powers stripped is by invoking Section 4 of the 25th Amendment of the US Constitution. This section allows top government officials to assess whether the president is fit for office and, potentially, remove his or her powers.
To trigger Section 4 — a drastic measure that has never been used — Vice President Mike Pence and the majority of 15 Cabinet members, which includes staunch Trump allies like Secretary of State Mike Pompeo, would have to agree the president is unfit for office.
Pence and the majority would sign and send a letter to both houses of Congress — the House of Representatives and the Senate — stating that the president is "unable to discharge the powers and duties of his office." The powers of the executive would then immediately be assumed by the vice president.
"It would remove any of (Trump's) powers and any of his tasks. Mike Pence would then become acting president," Kenneth Manusama, a US constitutional law expert and lecturer at Vrije Universiteit Amsterdam, told DW.
But Trump would have an opportunity to contest this by sending a written letter to both chambers of Congress. Congress can then decide by two-thirds majority in both Houses.
The vice president would remain acting president until both chambers reach a conclusion on the issue.
Can removal of powers happen before January 20?
In theory, yes. If Pence and the majority of Cabinet members were to invoke Section 4 of the 25th Amendment, it would see Trump immediately stripped of his powers. Even if Trump contested this, Congress has up to 21 days to clear him as fit for office — but this requires a two-thirds majority in both chambers.
If Trump opponents pursued impeachment, this, too, in theory, could be done before Inauguration Day. But even if there was a rare moment of bipartisan support for impeachment, it would still remain challenging.
"Practically speaking, it's highly unlikely because the historical precedents call for a multi-week investigation into the allegations against the president. That certainly was the case with regard to Andrew Johnson, Bill Clinton, Richard Nixon — and Donald Trump himself when he was impeached," said Gaughan, who believes the 25th Amendment would be more likely to be invoked by those seeking to oust Trump.
Can Trump face legal charges over the Capitol incident?
Yes. Legal experts say a potential charge Trump could face over the US Capitol uprising is sedition. Kenneth Manusama, a lecturer at Vrije Universiteit Amsterdam and expert on US constitutional law, told DW: "Sedition is the most applicable to this situation because it's basically inciting to use force against the exercise of authority by the state, which is what Congress was doing yesterday.”
Under the United States Code it is a criminal act to incite an insurrection against the government.
"Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States,” states the chapter on Treason, Sedition and Subversive Activities, which is within the Code's Crimes and Criminal Procedure section.
Another section on seditious conspiracy could also potentially be considered.
If prosecutors were to pursue the sedition route, they would face roadblocks before Inauguration Day due to presidential immunity.
"Because Trump is still president, even if he is deprived of powers under the 25th Amendment, he's still president. So he enjoys immunity from criminal prosecution," said Manusama.
Unless Trump is pardoned for such a potential charge before Biden is sworn into office, immunity would no longer apply at noon on January 20.
Was the Capitol siege incited by Trump?
Before the storming of the Capitol building, Trump addressed supporters gathered in front of the White House, falsely claiming, "We won this election, and we won it by a landslide."
He also declared: "All of us here today do not want to see our election victory stolen by emboldened radical left Democrats, which is what they’re doing and stolen by the fake news media. That’s what they’ve done and what they’re doing. We will never give up. We will never concede, it doesn’t happen. You don’t concede when there’s theft involved."
Trump called on his supporters to head for the Capitol and "give our Republicans […] the kind of pride and boldness that they need to take back our country."
He also urged his backers to show strength. On Twitter, Trump continued firing up his supporters until the platform deleted some of his tweets and temporarily suspended his account.
For law professor Gaughan, there is no legal doubt that Trump incited violence. "It clearly was an incitement to violence. If that wasn't an incitement to violence, I don't know what incitement to violence would be."