The U.S. House of Representatives formally introduced a single article of impeachment against President Donald Trump on Monday, charging him with "incitement of insurrection" in response to the attack on the U.S. Capitol last week. GBH Morning Edition host Joe Mathieu spoke with Northeastern University law professor and GBH News legal analyst Daniel Medwed to discuss the legal implications of impeaching the president for a second time in the last week of his term. The transcript below has been edited for clarity.
Joe Mathieu: Well, this time last week, we couldn't have imagined we'd be talking about this. Now, we did discuss that it's unlikely the vice president and cabinet will invoke the 25th Amendment to remove the president. That option seems less likely with each passing day; they were resigning last week in the cabinet when we discussed it. So is impeachment truly it — the more realistic possibility, since Inauguration Day is just days away?
Daniel Medwed: Well, on the one hand, the House can act with alacrity right now because it's introduced an article of impeachment. Procedurally, what that means is that the leadership can bypass the traditional norm of holding committee hearings — which [as] we recall from the last time around, can be really time consuming — and just proceed directly to a floor vote. As long as they have a majority, and it looks like the Democrats have a majority, then there will be a vote for impeachment and then the article can be transferred over to the Senate for a trial. But on the other hand, it's inconceivable. It's just not going to happen that the Senate's going to hold the trial before Inauguration Day, much less that Democrats actually want that to happen because it would overshadow the inauguration and probably cast a pall over President Biden's first few months in office. So for that reason, there's a lot of chatter about impeaching him quickly this week and then holding back on the article until after Inauguration Day.
Mathieu: [Biden] has got to build a team, of course, Daniel. That takes a lot of time in the Senate to go through all these confirmations. I think it was Congressman Clyburn [who] suggested that Biden get his hundred days in office before the country is sidetracked with an impeachment trial. But is it clear, and some Republicans say it is not, that you can impeach a president no longer holding office?
Medwed: That's a fascinating question. Frankly, it isn't 100 percent clear, and some scholars think the Constitution only contemplates impeaching sitting officeholders. But I'm in the opposite camp. I think it's permissible, and here's why, at least in short. First, there's nothing in the plain language of Article One of the Constitution, which covers impeachment, that restricts impeachment to sitting officeholders. There's no such prohibition. Second, and more importantly, there's some precedent for doing this. Back in 1876, the secretary of war got into some hot water. He was being investigated for corruption by the House. And minutes before he was going to be impeached by the House, he ran over to the White House and tendered his resignation to President Ulysses S. Grant. But the House plowed forward and impeached him, and the Senate later held a trial, even though he wasn't in office. So I think the combination of the plain language of Article One and that precedent suggests that this can be done.
Mathieu: We'll assume here, Daniel, that the House impeaches President Trump and at some point down the road, for the sake of this conversation, two-thirds of the Senate votes to remove him from office. That would be a big deal. Is it clear that one of the penalties, then, would be banning him from running in the future because that also is being contested by Republican members?
Medwed: Well, that one strikes me as a bit clearer because the Constitution specifies that in "judgment in cases of impeachment," the penalty shall include removal from office, as we all know, but also, "disqualification to hold and enjoy any office of honor, trust or profit under the United States." So I think Congress could have a subsequent vote after voting to impeach him on the penalty phase and vote to ban him from future office. Though, as you point out, that's going to result in litigation. Is the presidency an office of honor, trust or profit? This provision has usually been applied to lower federal officers like judges.
Mathieu: He'd, of course, lose his million dollar travel budget, the security, a lot of other perks that come with being a former president. But while you're here, Daniel, I want to ask you about the 14th Amendment, because that's now coming up, invoked by Nancy Pelosi in a letter to the caucus a couple of days ago. It would allow for the removal of an elected official, maybe the president, for engaging in rebellion or insurrection. Does that apply to the executive branch or is that for lawmakers?
Medwed: Well, I think it's a possibility, at least based on the plain language of that statute, because it applies to anyone who has taken an oath to uphold the Constitution — a high office holder who then subsequently engages in insurrection or rebellion. And there's ample evidence, I think, that Trump has done so. The problem is the 14th Amendment doesn't spell out a precise procedure for invoking its powers, and that's where there's going to be a controversy.
