Constitutional law scholar discusses options for lawmakers seeking Trump’s removal

Law professor James Gardner says Trump incited violence against the U.S. government, and comments whether invoking the 25th Amendment, impeachment or prosecution are feasible

Release Date: January 8, 2021

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James Gardner head shot.
“That a sitting president would incite the violent seizure of a coordinate branch of government represents a complete rejection by the nation’s chief law enforcement officer of any kind of constitutional order. ”
James A. Gardner, SUNY Distinguished Professor, and Bridget and Thomas Black Professor
University at Buffalo School of Law

BUFFALO, N.Y. — A University at Buffalo and election and constitutional law scholar called Wednesday’s storming of the U.S. Capitol by supporters of President Donald Trump “an act of violence and insurrection of a kind not seen in this country since the Civil War.”

“That a sitting president would incite the violent seizure of a coordinate branch of government represents a complete rejection by the nation’s chief law enforcement officer of any kind of constitutional order,” says James A. Gardner, SUNY Distinguished Professor, and Bridget and Thomas Black Professor in the UB School of Law.

“It is an act of pure destruction, and thus constitutes treason against the United States,” says Gardner, who outlines options available to lawmakers if they choose to seek Trump’s removal from office.

25th Amendment not applicable, Gardner says

Some lawmakers and other groups have called for invoking the 25th Amendment, which provides for removal of the president when he is unable to discharge the powers and duties of his office.

“I do not, however, think the amendment applicable to this situation,” Gardner says. “It was designed to deal with situations, previously not provided for in the Constitution, in which a president becomes too ill physically or mentally to fulfill his duties.”

“Trump is not physically unable to serve, nor is he any more ill mentally than he was the day he took office. The objection to Trump is not his inability; it is that he uses his abilities in terribly destructive ways,” he says.

Impeachment is feasible, however, Gardner says

Another option, according to Gardner, is quickly to impeach and convict Trump, and remove him from office.

“Doing so is probably feasible, if distasteful, and would send a powerful message that this kind of behavior will not be tolerated,” says Gardner. “If we could be sure that Trump would attempt no further acts of destruction from within, perhaps impeachment and removal would be unnecessary. But it is very difficult to know what kind of threat he poses, and assuming the worst might well be justified under the circumstances.”

Could Trump face criminal charges?

Finally, there is the question of whether to prosecute Trump criminally after he leaves office, Gardner says, “whether for treason, insurrection, seditious conspiracy or some other federal crime against the nation and its people.”

“Here, the precedent that would be set must be taken into account,” says Gardner. “Criminal prosecutions in the U.S. are handled mainly by thousands of local district attorneys, independently elected. Once we start down the path of criminal prosecution of former presidents, it is difficult to foresee where things might lead. A possibility to fear is that some rogue local district attorney, or several of them, would begin routinely to file criminal charges against every future president rotating out of office. That is a cycle our system can ill afford.”

Calling for a ‘Truth Commission’

Gardner suggests the U.S. could “take a page from the playbooks of other countries that have had to navigate the transition from authoritarianism to democracy and appoint a ‘Truth Commission’ to investigate the riot at the U.S. Capitol and the entire four years of the Trump administration.”

“The purpose of such a commission would be to investigate and publicize the truth, while offering immunity to those who provide the commission with full information — and even their own confessions,” he says. “I am inclined to think this the better option given the strength of Mr. Trump’s support among the public.”

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