Federal leaders have two options if they want to rein in the President — The Conversation


President Donald Trump gestures during a Jan. 6 speech in Washington, D.C.
AP Photo/Jacquelyn Martin

Kirsten Carlson, Wayne State University

As the world reacts to the Jan. 6 armed attack on the U.S. Capitol encouraged by President Donald Trump, many Americans are wondering what happens next. Members of Congress, high-level officials and even major corporations and business groups have called for Trump’s removal from office.

Prominent elected and appointed officials appear to have already sidelined Trump informally. Vice President Mike Pence was reportedly the highest-level official to review the decision to call out the D.C. National Guard to respond to the assault on the Capitol.

Informal actions like this may continue, including House Speaker Nancy Pelosi’s reported request that Gen. Mark Milley, chairman of the Joint Chiefs of Staff, restrict Trump’s ability to use the nuclear codes. But political leaders are considering more formal options as well. They have two ways to handle it: impeachment and the 25th Amendment.

A scene of the Senate voting in Trump's impeachment trial in 2020
Donald Trump has already been impeached once, but was not convicted.
Senate Television via AP

Impeachment

Article II of the U.S. Constitution authorizes Congress to impeach and remove the president – and other federal officials – from office for “Treason, Bribery, or other high Crimes and Misdemeanors.” The founders included this provision as a tool to punish a president for misconduct and abuses of power. It’s one of the many ways that Congress keeps the executive branch in check.

Impeachment proceedings begin in the House of Representatives. A member of the House files a resolution for impeachment. The resolution goes to the House Judiciary Committee, which usually holds a hearing to evaluate the resolution. If the House Judiciary Committee thinks impeachment is proper, its members draft and vote on articles of impeachment. Once the House Judiciary Committee approves articles of impeachment, they go to the full House for a vote.

If the House of Representatives impeaches a president or another official, the action then moves to the Senate. Under the Constitution’s Article I, the Senate has the responsibility for determining whether to remove the person from office. Normally, the Senate holds a trial, but it controls its procedures and can limit the process if it wants.

Ultimately, the Senate votes on whether to remove the president – which requires a two-thirds majority, or 67 senators. To date, the Senate has never voted to remove a president from office, although it almost did in 1868, when President Andrew Johnson escaped removal from office by one vote.

The Senate also has the power to disqualify a public official from holding public office in the future. If the person is convicted and removed from office, only then can senators vote on whether to permanently disqualify that person from ever again holding federal office. Members of Congress proposing the impeachment of Trump have promised to include a provision to do so. A simple majority vote is all that’s required then.

The 25th Amendment
The 25th Amendment to the U.S. Constitution.
National Archives via AP

25th Amendment

The Constitution’s 25th Amendment provides a second way for high-level officials to remove a president from office. It was ratified in 1967 in the wake of the 1963 assassination of John F. Kennedy – who was succeeded by Lyndon Johnson, who had already had one heart attack – as well as delayed disclosure of health problems experienced by Kennedy’s predecessor, Dwight Eisenhower.

The 25th Amendment provides detailed procedures on what happens if a president resigns, dies in office, has a temporary disability or is no longer fit for office.

It has never been invoked against a president’s will, and has been used only to temporarily transfer power, such as when a president is undergoing a medical procedure requiring anesthesia.

Section 4 of the 25th Amendment authorizes high-level officials – either the vice president and a majority of the Cabinet or another body designated by Congress – to remove a president from office without his consent when he is “unable to discharge the powers and duties of his office.” Congress has yet to designate an alternative body, and scholars disagree over the role, if any, of acting Cabinet officials.

The high-level officials simply send a written declaration to the president pro tempore of the Senate – the longest-serving senator from the majority party – and the speaker of the House of Representatives, stating that the president is unable to discharge the powers and duties of his office. The vice president immediately assumes the powers and duties of the president.

The president, however, can fight back. He or she can seek to resume their powers by informing congressional leadership in writing that they are fit for office and no disability exists. But the president doesn’t get the presidency back just by saying this.

The high-level officials originally questioning the president’s fitness then have four days to decide whether they disagree with the president. If they notify congressional leadership that they disagree, the vice president retains control and Congress has 48 hours to convene to discuss the issue. Congress has 21 days to debate and vote on whether the president is unfit or unable to resume his powers.

The vice president remains the acting president until Congress votes or the 21-day period lapses. A two-thirds majority vote by members of both houses of Congress is required to remove the president from office. If that vote fails or does not happen within the 21-day period, the president resumes his powers immediately.

It is possible that Trump will remain in office through the end of his term on Jan. 20. But once he leaves office, he will no longer have the presidential immunity that has at least partially shielded him from many criminal and civil inquiries about his time in office and before.

Editor’s note: This article was updated on Jan. 9, 2021, to include additional informal measures taken to limit Trump’s power.

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Kirsten Carlson, Associate Professor of Law and Adjunct Associate Professor of Political Science, Wayne State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

[Pagosa Springs] area #snowpack levels down from last year (January 10, 2020) — The #PagosaSprings Sun #ColoradoRiver #COriver #aridification

Westwide SNOTEL basin-filled map January 10, 2021 via the NRCS.

From The Pagosa Springs Sun (Simone Mounsamy):

Local basins have seen an 11.11 percent decrease in snowpack totals over the last week, with the San Miguel, Dolores, Animas and San Juan River basins sitting at 72 percent of median this week, compared to 81 percent of median last week.

According to the Natural Resources Conservation Service (NRCS), that site was at 117 percent of median this time last year.

A 9 percent decrease was reported for the Wolf Creek summit, with totals going from 111 percent of median to 101 percent of median this week…

Other snowpack reports

The Upper Rio Grande Basin has a snowpack total of 102 percent of median this week. Last year at this time it was 116 percent of median.

At the Arkansas River Basin, totals were 119 percent of median this time last year and are 100 per- cent of median this week.

At the Yampa and White River basins, snowpack totals went from 117 percent of median this time last year to 82 percent of median this week.

The Laramie and North Platte River basins were 112 percent of median this time last year, whereas they are 82 percent of median this week.

The South Platte River Basin’s snowpack total is also 82 percent of median this week. Last year it was 122 percent of median.

Snowpack totals at the Upper Colorado River Basin were 107 percent of median this time last year. This week they are 76 percent of median.

The Gunnison River Basin was 105 percent of median last year. This week, it is 73 percent of median…

River report

According to the U.S. Geological Survey, the San Juan River was flowing below the average rate at 43.5 cfs as of Wednesday at 2 p.m.

Based on 85 years of water records, the average flow rate for Jan. 6 is 59 cfs.

The San Juan River had the lowest flow total for Jan. 4 in 1990. The lowest flow total from that year for Jan. 4 was recorded at 24 cfs.

The highest flow total for that date came in 1987, when the San Juan River had a flow of 116 cfs.

#Snowpack news (January 10, 2021): Dry streak continues in #Colorado, with 100 percent of state in #drought conditions — OutThereColorado.com

From OutThereColorado.com (Spencer McKee):

A few inches of snow are expected to land in Colorado on Saturday after days of dryness. After that, no more snow is expected for about a week. This lack of consistent snowfall seems to be the norm this winter, as Colorado continues to experience widespread drought and snowpack remains low.

Colorado Drought Monitor January 5, 2021.

According to the US Drought Monitor, 100 percent of Colorado is experiencing drought of some level, as of January 5, with more than three-quarters of the state experiencing “extreme” drought or worse. Roughly 27 percent of the state is currently in “exceptional” drought conditions, the worst stage of drought, likely to result in major agricultural and recreational economic losses, among negative side effects.

Westwide SNOTEL basin-filled map January 7, 2021 via the NRCS.

The recent dryness in Colorado is reflected in the state’s snowpack. The state’s current snow water equivalent is at just 79 percent of the to-date median and just 35 percent of the median snow water equivalent peak, which typically occurs in early April.

This time last year, just 51 percent of Colorado was experiencing some level of drought, with no portion of Colorado experiencing the two worst levels of drought – “extreme” and “exceptional”.

Reservoir clears hurdle due to legal settlement — The Grand Junction Daily Sentinel #WhiteRiver #GreenRiver #ColoradoRiver #COriver #aridification

One option for the White River storage project would be an off-channel dam and reservoir at this location. Water would have to be pumped from the White River into the reservoir site. Photo credit: Heather Sackett/Aspen Journalism

From The Grand Junction Daily Sentinel (Dennis Webb):

A legal settlement this week has allowed the Rio Blanco Water Conservancy District to clear a major early hurdle in its attempt to build a large reservoir 17 miles northeast of Rangely.

The agreement reached between the district and state Division of Water Resources averted a trial that was scheduled for this week and led to a decree that was signed by Division 6 Water Judge Michael O’Hara III on Thursday. It gives the district the right to store 66,720 acre-feet of water in a reservoir that would be constructed in Rio Blanco County near the White River and Wolf Creek confluence, approximately 15 miles upstream of the district’s Kenney Reservoir.

The district’s preferred reservoir site would be on Wolf Creek, with water to be delivered to the reservoir from a proposed pump station on White River.

The proposal still faces major challenges, from federal permitting, to financing, to challenges from environmentalists. But water attorney Alan Curtis, who has been representing the district on the project, said getting the water right is necessary before federal regulatory agencies will consider approving a reservoir proposal…

Decreed uses for water stored in the reservoir include municipal water for the town of Rangely, and replacement water that can be released to offset future water uses within the district boundaries and within the Yellow Jacket Water Conservancy District, which includes portions of eastern Rio Blanco County, Moffat County and the town of Meeker. Use of the water also is allowed to mitigate environmental impacts associated with the reservoir, and for hydroelectric power generation. In-reservoir use is allowed for recreation, fisheries and wildlife habitat.

Under the settlement, the Rio Blanco district dropped its proposal for some of the water to be used to benefit endangered fish in rivers. Kevin Rein, state engineer for the Division of Water Resources, said the state was concerned with preventing water speculation, which is prohibited in Colorado. To get a water right appropriated requires having a good, nonspeculative plan to put the water to beneficial use, he said. He said the district proposal lacked things such as a formal agreement with the Upper Colorado River Endangered Fish Recovery Program or a specified amount of water that would be involved.

The water district also had proposed to store water so in-basin diversions could continue should local water have to be released to downstream states if Upper Colorado River states including Colorado ever fall out of compliance with water delivery obligations under an interstate compact. The district dropped that proposal under the settlement.