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Experts explain what it means to impeach, invoke the 25th

All eyes centered on Capitol Hill Wednesday, a week after a mob stormed the Capitol building, as the House of Representatives began proceedings to discuss the impeachment of sitting President Donald Trump.

Talks of impeachment follow the House’s failed call-to-arms asking Vice President Michael Pence to invoke the 25th Amendment of the United States Constitution, which would allow him and the president’s cabinet to wrestle temporary control of the executive branch from the president.

With Pence refusing the call and the House focused more on formal

impeachment inquiries, local lawyers and professors are reflecting on the constitutionality and implications of an impeachment, as well as why the 25th Amendment did not stick.

Bill Carlucci, a Williamsport lawyer in private practice, explained that the 25th Amendment is one that focuses on a temporary handing over of the presidency while the sitting president is unable to perform his or her duties.

“If you don’t understand what happened with President (John) Kennedy, you don’t understand what the 25th Amendment is about,” Carlucci said.

Carlucci said in the aftermath of the Kennedy assassination, lawmakers wanted to establish a procedure for what would happen if Kennedy had merely been injured and hospitalized, and not killed.

“Folks were concerned about what to do if a president is ‘not dead yet,'” Carlucci said. “What if he was shot, but was in a coma and was unable to do the job but had not resigned and was not released?”

Carlucci said the 25th Amendment provides for that extraneous situation, and was not intended to be used as a vehicle for removal from office in response to misconduct.

“What’s significant in my view is some people in the (news) media and some politicians are referring to the 25th amendment as permitting action if the president is unfit for office,” Carlucci said. ” It doesn’t say unfit — it says unable.”

Cliff Rieders, a local constitutional lawyer and teacher of constitutional law, echoed Carlucci’s assessment of the constitution.

“It is designed to deal with mental or physical infirmity,” Rieders said. “It was not designed to deal with espionage, treason or insurrection.”

Rieders further explained the 25th Amendment provides the means for the vice president and cabinet to pen a letter to the senate president pro tempore and speaker of the House signing the presidency over to the vice president if the president is unable to perform his duties, at which point the powers will transfer.

Rieders described the process as a “built-in tennis match.” The president has an opportunity to rebuke the letter and claim no inability exists, at which point he will resume leadership of the nation.

In turn, the vice president and the president’s cabinet may, within four days, pen a second letter to Congress insisting the president’s inability. Congress has two days to assemble if it is not in session, and has 21 days after that to decide the issue, Rieders said.

“To do this process within seven days itself might be unconstitutional, or raise constitutional implications assuming the president disagrees with the designation,” Rieders said.

Even if Pence had signed the letter, it is dubious it would have had any effect on the state of America’s leadership at the twilight of Trump’s term, Rieders said.

While one could make the argument that Trump is mentally unfit, or mentally unable to discharge the duties of the position, Rieders said most people would think accusations of insurrection would be more attuned to what impeachment is for, rather than the 25th Amendment.

Craig Miller, a history and political science professor at the Pennsylvania College of Technology, said the American political system is not designed so a cabinet can remove a sitting president from power.

“The kind of talk that involves using the 25th Amendment for removing a president is the kind of talk that characterizes a less stable democracy,” Miller said.

Given Pence’s refusal to invoke the 25th Constitutional Amendment, the House of Representatives is now turning to impeachment inquiries.

Rieders explained impeachment has two stages mirroring that of a court: The first is the presentation of impeachment charges in the House of Representatives, which is designed to find probable cause that someone committed a crime. The second stage involves a trial on those charges in the Senate, which serves to convict or acquit the person being tried.

“Likely, there would be no time for it,” Rieders said. “It seems as if there is a constitutional void for a president who is mentally fit who has committed a high crime or misdemeanor and whose offense is so egregious they should be removed immediately.”

Rieders said there is no constitutional equivalent to an emergency injunction such as a restraining order. He explained the house was attempting to use the 25th Amendment as a more expeditious method of removing Trump from office because of how long the impeachment process takes.

“The real question comes down to whether the 25th amendment should be used to vindicate the outrage of congress over a legal violation by the president where the time for impeachment doesn’t exist,” Rieders said. “Is the message more important than the legal vehicle available?”

Michael Zicollelo, another local lawyer, said there was not much to be gained from impeaching Trump with seven days left in his term.

Zicollelo said most are looking at impeachment as a means of preventing Trump from running for a second term and receiving the benefits the ex-president receives, such as the protection of the secret service.

“I don’t know why they would do that. He’s still an ex president, whether you like him or not he should get the benefits and protections,” Zicollelo said. “Nixon got them! If Nixon got the protections of an ex-president, I don’t see why Trump should not. He’s more popular than Nixon was.”

Zicollelo said the fourteenth amendment, enacted in the years following the American Civil War, would be a better avenue, as it bars public officials who supported sedition or insurrection from running for office again. But he said the matter is futile.

Miller said he expects the Democrats in congress to use successful impeachment articles of treason to use the fourteenth amendment later down the road to prevent another Trump campaign for the White House.

However, Miller pointed out the threshold for conviction functions differently in a federal court than in an impeachment trial. Federal judges have precedent and statutes to rely on when deciding treason and insurrection cases.

On the other hand, the standard of proof for congress is a popular vote, according to Miller. If the Democrats can entice enough people to vote to impeach and later convict Trump, he would be found guilty of treason by a two-thirds majority.

Miller said the fourteenth amendment is unclear on if someone must be convicted of treason by a federal judge to be barred from office, or if a successful conviction by congress during an impeachment would be enough.

“Once he’s out of office, what does it matter?” Zicollelo said. “The time is not there for it, and it seems to be pointless because he will be out of the office.”

“The country is much better, as a whole, to move on,” Zicollelo said.

Zicollelo’s statements were echoed by Carlucci, who said in his personal opinion, impeachment requires an investment of significant time and resources.

“In my opinion, those resources are not well-spent after someone is already out of office,” Carlucci said. “I would rather see the money spent on feeding hungry people than an impeachment on someone who is already out of office.”

Ben Kantack, a political science at Lycoming College who specializes in American politics and public opinion, explained the likelihood of congress going through with the impeachment process.

“(The house has) a lot of jurisdiction over how the process goes. They can decide what a high crime misdemeanor is, they can choose to impeach with formal inquiries or do so without a long process,” Kantack said.

Kantack said while the House of Representatives has enough votes to pass a simple majority threshold, the Senate may or may not have enough votes to reach the two-thirds majority required for conviction.

“More Republicans need to be willing to take part,” Kantack said. “It’s not yet clear if there are enough Republicans supporting conviction.”

At this hour, impeachment would not mean much because Trump’s term is almost over, Kantack said. However, politically, the action would be a historic rebuke.

Impeachment coupled with conviction would bring its own implications for both parties, Kantack said. And while each party should be doing what is legally or morally right, Kantack said, he also said there is a more cynical element at work regarding what “makes sense” for the parties to do.

“The Democrats–do they seem justified in the public’s eye, or do they seem bitter and vengeful?” Kantack asked. “And do Republicans need to make a clean break with Trump and move on, or are some of them trying to preserve support from Trump supporters?”

“It’s not clear what the ‘smart’ decision is for either,” Kantack said.

As the impeachment process is underway, Kantack explained the likelihood of congress going through with the impeachment process.

“[The house has] a lot of jurisdiction over how the process goes. They can decide what a high crime misdemeanor is, they can choose to impeach with formal inquiries or do so without a long process,” Kantack said.

Kantack said while the House of Representatives has enough votes to pass a simple majority threshold, the Senate may or may not have enough votes to reach the two-thirds majority required for conviction.

“More Republicans need to be willing to take part,” Kantack said. “It’s not yet clear if there are enough Republicans supporting conviction.”

Miller indicated that instead of Americans allowing themselves to be caught up in the anger and divisiveness, they should use this time to reflect.

Miller said it is difficult to convince the American public to stop, take a deep breath and let the situation settle so there can be an investigation to retrieve all the information necessary to make a decision.

“When you are talking about actions that impact millions of people around the world, we have a responsibility to act with cooler heads rather than out of anger,” Miller said.

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