The Constitution can't save us from Trump — and only one thing can

The United States Constitution provides two paths for removing a sitting president from office: impeachment and the procedures outlined in the 25th Amendment. Both approaches are being raised again, and with increasing fervor, as ways to bring an early end to Donald Trump’s second term of chaos, incompetence and corruption. Both are clearly warranted, but structural hurdles built into both render them legally infeasible.

Instead of looking for a magic bullet in the Constitution to bring Trump down, progressives and anti-Trumpers should concentrate on building a lasting, broad-based and genuine pro-democracy movement. Impeachment hearings and calls for invoking the 25th can play a role in that process, but only an ancillary one.

Here’s why.

Impeachment

The Founding Fathers were well aware of the dangers of unbridled one-man rule. Along with removing the yoke of King George III, they sought to prevent the rise of homegrown tyrants driven by ambition, greed and vanity.

At the Constitutional Convention in 1787, after prolonged debate about the extent of presidential powers and whether the new federal charter should include a provision authorizing the impeachment and removal of the president, the delegates adopted the now-famous clause inscribed in Article II, Section 4 of the Constitution that provides, “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.”

To strike a balance between a strong chief executive and what the antifederalists dreaded would eventually devolve into monarchy, they created a two-step process for impeachment. As set forth in Article I of the Constitution, the House of Representatives holds the sole power of impeachment, akin to a grand jury’s authority to return an indictment against a criminal defendant. A simple majority vote is all that is needed to accuse federal officers of committing an impeachable act and send their cases to the Senate, which is given the sole power to try cases of impeachment. In the upper chamber, however, a two-thirds vote (67 senators today if all are present) is needed to sustain a guilty verdict and remove a defendant from office.

As it was designed to do, the two-thirds requirement has drastically curtailed the frequency and impact of impeachment. Including Trump, only 21 federal officials have been impeached in our history. Fifteen were judges, two were Cabinet members, and one was a senator. The other three were presidents — Andrew Johnson in 1868, Bill Clinton in 1998 and Trump in 2019 and 2021. All were acquitted by the Senate. To date, there have only been eight impeachment convictions, all handed down against federal judges.

Trump is often compared to Richard Nixon for his abuse of power, ruthlessness, paranoia and relentless pursuit of revenge against real and imaginary enemies. Both men have also been accused of believing in the “madman theory” of the presidency — the idea that if the president appears to be temperamentally extreme and unhinged, he will be seen as willing to do anything, no matter how vile or illegal, to impose his will.

But the conventional thinking that Trump will eventually suffer Nixon’s fate has been proven wrong. The Republican Party of the 1970s was tethered to constitutional governance. Today’s GOP has degenerated into a neofascist political cult. Trump has given the party control of all three branches of government, and he has given party leaders permission to be the most authoritarian versions of themselves. The party did not abandon Trump even when presented with overwhelming evidence in his second impeachment trial that he had incited the Jan. 6 insurrection. There is no reason to believe it will abandon him now.

Still, hope springs eternal. On April 6, Democratic Rep. John Larson of Connecticut introduced a resolution to initiate impeachment proceedings against Trump. Drafted by Ralph Nader and constitutional scholar Bruce Fein, the resolution consists of 13 articles that charge Trump with, among other derelictions, violating Congress’ war powers by unconstitutionally initiating wars as a belligerent or co-belligerent against Iran, Venezuela, Yemen, Lebanon, Syria, Nigeria and Gaza; militarizing domestic law enforcement with deployments of the National Guard; and using Immigration and Customs Enforcement to racially profile citizens and suspected immigrants.

In a rational country with leaders committed to the rule of law, the resolution would swiftly lead to Trump’s demise. But we are not that country today.

The 25th Amendment

Ratified in 1967, the 25th Amendment was drafted in the aftermath of the assassination of John F. Kennedy to clarify the law of succession when the president becomes disabled. According to the first paragraph of Section 4 of the amendment:

As Trump continues to unravel, invoking Allah in threats to obliterate Iranian civilization and attacking the pope as too liberal and weak on crime, calls to invoke Section 4 have accelerated. But Section 4 is an even weaker remedy than impeachment.

The second and final paragraph of Section 4 instructs that the president can attempt to override a declaration of disability by notifying the Senate and House leadership that no such disability exists. Thereafter, the vice president, with the support of either a majority of the Cabinet or “the other body” of the first paragraph, can contest the president’s override. To resolve the conflict and place the vice president in charge, a two-thirds vote of both houses of Congress — not just the Senate — is required to confirm that the president is, in fact, “unable to discharge the powers and duties of his office.”

The procedures outlined in Section 4 have never been invoked, and it strains credulity to think they will be used against Trump as long as JD Vance is the vice president and the Cabinet is staffed by sycophants and grifters who routinely pledge their loyalty to their dear leader.

This is not to say that agitating for impeachment or calling for Trump’s removal on 25th Amendment grounds is pointless. But we should not view the avenues for forcing Trump’s early exit as ends in themselves. Rather, they are best seen as organizing tools that can be useful in drawing Americans into a broad-based movement to restore democracy. In Hungary last week, 16 years of authoritarian rule ended with the defeat of Viktor Orbán. It can and must happen here.

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