Can Americans Remove An 'Incompetent' President?

05/15/2017 06:39 am ET Updated May 15, 2017
Trump meets with Russian friends in the U.S. White House. Sad!
CNN
Trump meets with Russian friends in the U.S. White House. Sad!

There is less than a month left in the high school year and in many states students in American history classes are busy reviewing for end-of-the-year assessments. Instead of the standard boring names and dates, my suggestion to teachers is to spend all remaining time with a thematic review encompassing the past, present, and future by focusing on how to remove a president of the United States who is (a) incompetent to serve, (b) violates fundamental constitutional principles, (c) breaks the law, or (d) all of the above.

This unit could include examination of the freedom of the press debate during the colonial era; the principles imbedded in the Declaration of Independence, the Preamble to the Constitution, the Federalist Papers, and the Bill of Rights; Constitutional Convention and ratification debates over checks and balances and separation of powers; Supreme Court decisions that interpret the meaning of the Constitution; election controversies; and periodic Constitutional crises. It provides a lens on the past as well as helping students to form knowledgeable opinions about the present.

Teachers worry they always have to be “neutral.” When Donald Trump demanded to know if former FBI Director James Comey would be “loyal” to him, Comey would only promise to be honest. His loyalty was to law, the Constitution, and justice, not Donald Trump. In the same way teachers and students should not simply be neutral, or balanced, when evaluating history or current events. Our “loyalty” must be to basing opinions on evidence, analysis, and reason, three qualities that appear to be missing in the current administration.

Unfortunately, state curriculum and textbooks do not provide a lot of guidance here. For example, on page 41 of the 50 page New York State Grades 9-12 Social Studies Framework social studies teachers learn that their 11th grade United States history unit on the Cold War should include “reasons for declining public confidence in government, including America’s involvement in Vietnam, student protests, the growing antiwar movement, and the Watergate affair.”

This is the only mention of Watergate in the entire framework and it does not include any suggestions over how it should be addressed. President Nixon is never mentioned by name. Neither are the words impeach or impeachment. Watergate, Nixon, impeach, and impeachment are also mysteriously missing from the 12th grade Participation in Government framework. The 11th and 12th grade documents are intended to be non-partisan, so students are never expected to learn about the trials and travails of Presidents Andrew Johnson in the 1860s or Bill Clinton in the 1990s either.

The conflict between Andrew Johnson and Congress that led to his impeachment trial for violating the 1868 Tenure of Office Act gets a paragraph of attention on page 186 in the widely used text The Americans (McDougall Little, 2006). Johnson was impeached (indicted) by the House of Representatives but the Senate failed to convict him so he remained in office.

In the same textbook, Watergate and Richard Nixon’s resignation have their own section (2) in chapter 24, An Age of Limits, with coverage from pages 802 to 809. Nixon resigned after a Congressional committee recommended impeachment but before a formal decision was reached, so he was never tried by the Senate. Bill Clinton’s impeachment by the House of Representatives for lying under oath about sexual improprieties and obstruction of justice is covered in a section on partisan politics in the 1990s (864-865). Like Andrew Johnson, the Senate failed to convict him and Clinton remained in office.

These lapses in coverage are of great importance now as recent impulsive, erratic, implausible, and possibly illegal actions by President Donald Trump move the United States toward a constitutional crisis. It is crucial that students and all Americans understand what constitutional options are available to the American people if they believe Trump should be removed from office. Three times American Presidents were threatened with impeachment or removal. One resigned and the two others served out their terms. No one has ever been involuntarily removed.

According to Article II Section 4 of the United States Constitution, “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.”

Article 1 Section 2 of the Constitution specifies that the House of Representatives “shall have the sole Power of Impeachment.” Section 3 explains that “The Senate shall have the sole Power to try all Impeachments . . . When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” Penalties for conviction by the Senate are also explained. “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

The Constitution never explains what it meant by “high Crimes and Misdemeanors”; probably the authors did not agree. Fifteen federal judges have been impeached by the House of Representatives since 1803 and eight were convicted by the Senate and removed from office. The most recent case was in 2010. One Supreme Court Justice, Samuel Chase, was impeached but not convicted and removed in 1805. Chase criticized repeal of the Judiciary Act of 1801, an action supported by President Thomas Jefferson and passed by Democratic-Republican majorities in both Houses of Congress. He was officially charged with mishandling other cases while he was a lower court judge.

In the cases of both Presidents Andrew Johnson and Bill Clinton, they were impeached, but not convicted, during highly partisan proceedings for relatively minor “legal” offenses, if they were offenses at all. Without further Constitutional guidelines or legal precedents, it seems that basically anything the House and Senate agree constitutes “high Crimes and Misdemeanors” is an impeachable offense that qualifies for removal from office.

There is one other Constitutional provision for removing a president from office. Section 4 of the 25th amendment, approved by the states in 1967, establishes procedures for responding to presidential “disabilities.”

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

As I read this, either the cabinet, “the principal officers of the executive departments,” or Congress by passing a law, can declare a president unfit for office. However, since a deranged or otherwise disabled president can veto Congressional legislation, that path would essentially require 2/3rd majorities in both the House and Senate. There are also procedures included in the amendment for a president to declare him or herself fit and return to office. If there is disagreement about a presidents’ fitness to resume office, “Congress shall decide the issue.”

Basically, it is very hard to remove a sitting president. It is even harder in the case of Donald Trump because his political party controls both Houses of Congress were the ultimate power resides. Andrew Johnson, Richard Nixon, and Bill Clinton all faced hostile Congressional majorities and none of them was formally removed from office. What all of this means is that the ability to remove a President who appears to have no understanding of the Constitution or governance and respect for the rule of law, rests in the hands of a Republican Party leadership that still believes it will benefit from supporting Donald Trump.

A recent article in New York magazine sees Trump’s firing of FBI director James Comey as the start of an unraveling that could eventually lead to his impeachment. In response, an opinion essay in the New York Times argued that this is never going to happen.

I do not expect the Republicans in the House and Senate to move against Trump, but these are some potential “high crimes and Misdemeanors” that could justify impeachment, conviction, and removal from office. An end term project in high school American history and government classes could be a mock impeachment trial for Donald Trump. If teachers don’t have time left this year, the issues are not going away and they can do it in the fall. If in doubt about how it will be received by school administrators, I recommend running by your department chair first.

Possible Charges Against Donald Trump Justifying Impeachment (Students and teachers can add your own ideas to the list): Income Tax Fraud; Building code violations; Bribery to obtain contracts; Defrauding students; Violation of election laws by collusion with Russians; Jeopardizing national security through collusion with foreign powers; Misuse of Presidential authority to obstruct justice by blocking investigations; Lying to the public and the press; Violations of first amendment press freedoms; and, Stupid tweets.

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