'We’ve got to hold our breath': Why Trump could wait out his final days in office despite calls for removal
WASHINGTON – President Donald Trump has less than two weeks left in office, but his response to and role in Wednesday's violent storming of the U.S. Capitol has unleashed a new round of calls for his removal – even from within his own party.
Among the tools being touted: impeachment (again), invoking the 25th Amendment and even charges of insurrection or sedition.
"There is real cause for alarm here," said Deepak Gupta, a Harvard University lecturer and attorney who specializes in constitutional law. "For the next couple of weeks, this unhinged person is formally, legally the commander of the armed forces, and there's really no telling what he might do."
Republican Rep. Adam Kinzinger, a military veteran and Trump critic, called the president "unfit" and "unwell" on Thursday and endorsed invoking the 25th Amendment to transfer power to Vice President Mike Pence.
"I think yesterday it became clear that the president is unmoored from reality and from his oath," Kinzinger told MSNBC Thursday. He said he hasn't "ruled out" impeachment.
Democratic Rep. Katherine Clark, the assistant House speaker, said Friday if Vice President Mike Pence and a majority of the Cabinet do not agree to remove Trump from office via the 25th Amendment, the House will move forward with impeachment proceedings as "early as mid-next week."
'Betrayal of his office':Calls for Trump's removal grow as even former allies begin to back away
But while there are seemingly many options and growing momentum for ousting Trump – and, critics say, many reasons for doing so – Gupta and others say most would be a stretch to pull off, particularly since he is headed for the exits anyway.
"I think we’ve got to hold our breath for the next 20 days," Sen. Mitt Romney, R-Utah, another prominent Trump critic, told reporters on Wednesday evening after the Capitol had been secured.
Trump's allies dismissed the fresh chatter as nonsense and rejected allegations that Trump's rhetoric helped stoke Wednesday's attack on Congress. After the House and Senate formalized President-elect Joe Biden's win in the Nov. 3 election early Thursday, Trump called for a "smooth" transition of power, in a jarring message shift.
At a news conference earlier Thursday, Sen. Lindsey Graham, R-S.C., said he did not support removing Trump and dismissed impeachment as "political talk."
"I'm hopeful the worst is behind us and we can transfer power on January 20th," he said.
But lawmakers in both parties say Trump incited the mob violence that unfolded at the Capitol, in which pro-Trump rioters breached security, ransacked the building and nearly derailed the Electoral College count to formalize Biden's win.
It was an explicit use of violence "to coerce a political outcome" that Trump and his supporters failed to achieve through the democratic process, said Michel Paradis, an adjunct professor at Columbia University law school and a senior attorney for the Department of Defense.
Trump has repeatedly sought to undermine the 2020 election results with false claims of election fraud and on Wednesday, he encouraged his supporters to "stop the steal” in a speech before they marched to the Capitol.
On Friday, former Secretary of State Colin Powell said Trump should resign immediately.
“I wish he would just do what Nixon did and step down,” Powell told NBC.
Powell said impeachment – a step House Democrats are preparing for as early as next week – is too time consuming.
“Somebody ought to go up there and tell him, ‘It’s over. Plane’s waiting for you. You’re out.”
House Democrats aren't banking on that.
Speaker Nancy Pelosi Thursday called Trump “a very dangerous person who should not continue in office.“ The California Democrat said the president's Cabinet members should remove Trump from power, and she threatened impeachment if they do not act quickly.
The 25th Amendment:How the 25th Amendment would be used to end Trump presidency
Meanwhile, the head of one of the country's most powerful business lobbies accused Trump of inciting Wednesday's violence in an attempt to retain power and said Pence should consider triggering the 25th amendment to the Constitution to preserve democracy.
"This is sedition and should be treated as such," said Jay Timmons, the president and CEO of the National Association of Manufacturers.
But is it realistic to think Trump will be ousted before the Jan. 20 inauguration of his successor?
Here's a rundown of the avenues for removal – and a reality check on their possible use:
The amendment, ratified in 1967, created a legal mechanism for designating a head of state when the president is disabled or dead. It also formalized the historical practice for the vice president to permanently take over if the president dies or resigns, and gives the president and Congress shared power to replace a vice president.
Under the amendment, the vice president and a majority of the Cabinet could declare the president unable to “discharge the powers and duties of his office.” If the president disputes that determination, two-thirds of both the House and the Senate must vote to put the vice president in charge.
On Thursday, Pelosi and the top Senate Democrat, Chuck Schumer, called on Pence and Trump's top advisers to invoke the clause.
“What happened at the U.S. Capitol yesterday was an insurrection against the United States, incited by the president," Schumer said in a statement Thursday morning. "This president should not hold office one day longer."
But Gupta said the 25th Amendment was not really designed to oust a sitting president, even one who lawmakers believe is unfit to hold the office.
"One of the defects of the 25th Amendment is it relies on the president’s closest political allies – his people – to invoke it," he noted. Its drafters did not see it as a tool to remove a president who seems intent on undermining an election or holding onto power.
"What they had in mind was situations in which the president becomes incapacitated for medical reasons," he said.
But Norman Ornstein, a resident scholar at the American Enterprise Institute think tank, said Trump's singular focus on overturning the election – and his refusal to do his day job – is justification enough for invoking either the 25th Amendment or impeachment proceedings.
"It's a dereliction of duty and responsibility that would suggest a president who is not dealing with the fundamental problems of the country," Ornstein said during a briefing hosted by a task force on election crises.
Over the last 24 hours, a growing number of Democrats drafted or endorsed articles of impeachment to remove Trump from office. Both Pelosi and Schumer raised that option as a backup if Trump's advisers refuse to take the 25th Amendment route.
"The president's conduct in inciting the criminal activity (that occurred during Wednesday's riot) undoubtedly ... qualifies as a high crime and misdemeanor," Ned Foley, a law professor at Ohio State University, said in referring to the two triggers for impeachment proceedings.
Foley noted that impeachment would also bar Trump from holding public office again, presumably a benefit to critics who think he is unfit and fear he will run again in 2024. But impeachment is a lengthy and politically fraught process.
Congress is no longer in session, and lawmakers are unlikely to embrace a return for such charged proceedings, no matter how much they are worried about the president's potential to cause additional chaos in the coming days.
Inauguration Day 2021:What now? Capitol riots, Trump supporter threats prompt safety concerns
Even Trump's most ardent foes said it's far-fetched to think the narrowly divided House would reconvene to impeach Trump and the Senate, currently controlled by Republicans, would then follow through to convict him.
"He certainly deserves it," Sen. Dick Durbin, the chamber's No. 2 Democrat, told reporters. "After what happened yesterday, he should be removed from office. But I don’t believe there’s a stomach for it on the Republican side and there’s very little time left."
Charges of sedition or insurrection
In the wake of Wednesday's violence, several legal experts and Trump critics raised the prospect that Trump could be charged with seditious conspiracy or inciting insurrection.
Foley said there's little question in his view that rioters at the Capitol engaged in criminal activity and that Trump incited them. But, he said, it's not clear if Trump himself could realistically be charged in connection with that deadly attack.
Plus, he noted, Department of Justice policy generally holds that a sitting president is immune from criminal charges while in office.
"After leaving office he's subject potentially to criminal liability," Foley said. "But sedition is a complicated crime and ... it has a kind of ugly use in American history for political opponents, so I think we would want to be careful about going down that road."
Gupta said Trump could potentially be ousted under a provision of the 14th Amendment that bars individuals who engage in insurrection against the Constitution of the United States from holding office.
But there isn't much precedent for invoking that, he said, and it could face a tough legal path.
'Betrayal of his office':Calls for Trump's removal grow as even former allies begin to back away
Foley said the best option for those who want Trump out before his term ends is the path of least resistance: let him play golf – a lot of golf.
"If the idea is that perhaps President Trump will essentially check out of the functioning as president – and even more than he has in the past – you could see that potentially as ... an informal way to try to just get through the next two weeks," he said.
"If Trump just went to Florida and played golf and didn't get any briefings," Foley said, it could fall to Pence or the White House chief of staff to informally take the reins for the executive branch until Jan. 20 without invoking a messy formal process to strip him of his powers.
But, he and others conceded, that's not likely either.
Contributing: Nicholas Wu and William Cummings.