This week's violence at the U.S. Capitol has raised a lot of questions, including why it happened and what the consequences should be for an event that many are calling an armed insurrection. GBH Morning Edition host Joe Mathieu spoke with Northeastern University law professor and GBH News legal analyst Daniel Medwed to learn more about the potential legal implications following incident. The transcript below has been edited for clarity.
Joe Mathieu: There's a lot happening here in the days after the attack. Speaker of the House Nancy Pelosi [and] Senate minority leader — soon to be Majority Leader — Chuck Schumer are calling for the vice president to invoke the 25th Amendment. Others say impeachment. The Wall Street Journal this morning is going so far in an op ed, Daniel, to try to delineate between the two, saying that invoking the 25th would look like a Beltway coup. They say it's time to impeach and be transparent about it. What's the difference?
Daniel Medwed: Here's the difference. The 25th Amendment was enacted back in 1967, several years after the assassination of JFK, and it was designed to provide an orderly replacement process in the event that the president dies, resigns or is otherwise unable to serve. Now, the key provision is Section four, which provides that if a majority of the cabinet — in this case, Vice President Pence and 11 of the total 23 cabinet members — determined that the president is "unable to discharge the powers and duties of the office," then the vice president assumes the presidency immediately. So it's streamlined; it would be faster than the impeachment process. However, if the president challenges that removal, then it goes to Congress and you have to get a two-thirds vote in both the House and the Senate for the removal to remain in place. So the 25th Amendment is all about the president's fitness for office, and it is a cabinet-based decision originally, whereas impeachment is about a particular act — impeachable offenses — and there's a more transparent trial-like proceeding in the well of Congress.
Mathieu: Leading many of us to wonder how could that even happen in the next 13 days, especially after the protracted impeachment process, the long hearings that we saw what seems like 10 years ago now. I wonder, though, what the resignation of now two cabinet members might mean for this, potentially leaning away from the 25th Amendment?
Medwed: That's such an important observation, Joe. I think that's right. Some people would interpret the resignation by Betsy DeVos and Elaine Chao yesterday as a rebuke of Trump. That's not how I view it. I view it as rats scurrying off the ship who don't want to be put in the position of voting for the 25th Amendment. Maybe that's a harsh estimation, but that's how I see it. And that means it'll be really hard to convene the cabinet in time. So if the 25th Amendment is more nimble, more streamlined and more realistic, that window appears to be closing without a full cabinet in place.
Mathieu: It's starting to sound like it's too late to initiate potentially either of these options. Is that fair?
Medwed: I think that's fair. Though it still is important symbolically, given the gravity of what transpired on Wednesday.
Mathieu: You make a good point. You could vote on this potentially as Democratic leadership, go through the process just to put a line in the sand, just to make a statement. But, Daniel, I want to shift gears to ask you about the shockingly small number of arrests that were made around this whole attack, in contrast to how people were treated during the summer's largely peaceful Black Lives Matter protests. A lot of people are calling out this double standard here. Are any of this week's rioters likely to face criminal charges? We keep hearing reports that they're being rounded up.
Medwed: I hope so. And that is one of the most disturbing aspects of this. It makes many people think that there's something else going on besides incompetence on the part of the Capitol Police, that there was some type of coordination between the Pentagon that allowed this to happen because there is no reasonable explanation for that double standard. In fact, more women were arrested peacefully protesting Brett Kavanaugh's nomination to the Supreme Court than occurred this week during an armed insurrection. I believe federal prosecutors have charged 15 people with crimes, including one man caught with a military grade semiautomatic. Most of those crimes are relatively petty — vandalism and unauthorized entry. Another 40 or so people have apparently been charged with crimes by local District of Columbia prosecutors. But that's really just a drop in the bucket, given what all of us saw. My hope is that more criminal charges will flow and that serious charges like sedition, conspiracy, maybe even felony murder related to the death of the Capitol Police officer yesterday could eventually be issued.
Mathieu: As opposed to a bunch of breaking and entering or trespassing charges or something?
Medwed: Exactly.
