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Post Impeachment: Constitutional and Administrative Questions

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Carroll G. Robinson and Michael O. Adams
January 9, 2020

We have not heard any TV hosts, print journalists or academic scholars talking (or writing) about a very simple, straightforward, practical but difficult constitutional, legal, political and administrative question: Who would enforce the constitutional mandate that President Trump step down from office if he is convicted for impeachable offenses?

Those concerned with the impeachment proceedings to be taking it for granted that if public opinion were to turn against President Trump, or the U.S. Senate were to come up with a two-thirds super-majority vote to convict and remove him for committing impeachable offenses, that the President would step down from office of his own accord. This seems unlikely, given his actions thus far – and also provokes some very interesting public administration questions.

Under the Constitution, what can Congress or the courts really do if the President refuses to vacate his office? There is no police power attached to the Article I Impeachment Clause. Could Congress send the Capitol Police to the White House to remove the President? Who would order the Secret Service to stand down? Could Congress commandeer the Secret Service and use them to remove the President? Based on what authority – and what precedent does that set?

Who will have the power to order the military to disobey Trump’s orders? Vice President Pence? The Secretary of Defense? Or (a nightmare scenario)—Generals or lower ranking officers? Civilian command of the military has been one of the cornerstones of our democracy and it will be tested and put at risk if any President, including this one, were to refuse to leave if convicted after impeachment.

Should the military or another federal law enforcement agency (like the FBI) be used to remove the President from the building? The Constitution does not address this type of consideration. Would the courts determine this is a political question and choose not to decide? The damage done to the constitutional and administrative order of our nation while waiting on litigation to resolve the matter could be considerable.

As public administrators, we hope and expect Congress is taking precautions for these concerns behind the scenes, including updating and modernizing legislation pursuant to their legislative authority under the XX and XXV Amendments to the Constitution.

Taking these nightmare scenarios to the next step, what safeguards are there to keep President Trump’s name off the 2020 General Election if the Republican National Convention nominates him for President and states allow his name on the ballot following his conviction? As impossible as it may seem, should we be concerned that Trump could win the electoral college on a write-in vote? At least one Federal Court of Appeals already has ruled that electors are constitutionally free —not bound by state law —to vote for the candidate of their choice. In Baca vs. Colo. Department of State in 2019, the Court of Appeals for the Tenth Circuit concluded that, “Article II and the Twelfth Amendment [of the United States Constitution] provide presidential electors the right to cast a vote for President and Vice President with discretion.”

Since electors are seemingly legally free to vote for the candidate of their choice, President Trump may need only one write-in vote in enough of the right states to be re-elected or cause a major constitutional crisis, possibly resulting in the need to resort to the acting President provision of Section 3 of the Twentieth Amendment or federal legislation authorized by the same provision.

Finally, what if President Trump is not convicted but loses the 2020 general election anyway? What if he refuses to vacate his office or challenges the election results in all 50 states and the District of Columbia, by way of paid requests for recounts and then state court and/or federal court litigation?

Who is constitutionally empowered to enforce a mandate that President Trump step down?

Authors: Carroll G. Robinson, Esq. and Dr. Michael O. Adams are faculty members at Texas Southern University in Houston, Texas.

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