Civil Discourse Now

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A President may be removed from office by means other than impeachment or Amendment XXV.

   The Framers of the Constitution tried, in 1787 at the Convention, to address many things in the document that became the Constitution. Of course they institutionalized and protected the most evil institution in our history—slavery—although the delegates were products of the Enlightenment.
    As to the selection of what they termed, early in the Convention, as the “Chief Magistrate,” and what we call the President, they were conscious of efforts foreign powers might to interfere in the process.  James Madison wrote in the notes he kept as the Convention progressed:
    “3.  The ministers of foreign powers would have and make use of, the opportunity to mix their intrigues and influence with the Election.  Limited as the powers of the Executive are, it will be an object of great moment with the great rival powers of Europe who have American possessions, to have at the head of our Government a man attached to their respective politics and interests.  No pains, nor perhaps expence, will be spared, to gain from the Legislature an appointment favorable to their wishes.  Germany and Poland are witnesses of this danger.  In the former, the election of the Head of the Empire, till it became in a manner hereditary, interested all Europe, and was much influenced by foreign interference..  In the latter, although the elective Magistrate has very little real power,  his election has at all times produced the most eager interference of foreign princes, and in fact at length slid entirely into foreign hands.”
Madison, Note on the Federal Convention, The AntiFederalist Papers, Signet, 1986, p. 120.
   The Framers addressed removal of a President from office through impeachment, in Article II, Section 4:
      “The President ... shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.”
Amendment XXV, Sec. 4, ratified February 10, 1967, provides for removal of the President if the President is “unable to discharge the powers and duties of his office...”
   Acts committed before assumption of office cannot be acts for impeachment of a President..  https://www.gpo.gov/fdsys/pkg/GPO-HPRACTICE-104/pdf/GPO-HPRACTICE-1..., p. 535.
   At present, the person who occupies the Oval Office has been alleged to have obtained that office through collusion with a foreign power.  If those acts occurred before he took office on January 20 of this year, they are acts for which he cannot be impeached.  If he is not deemed unable to discharge his duties of office, the two means by which a President may be removed from office cannot be used.
   Fortunately, as one United States District Court noted over 40 years ago, there are other means by which a President can be removed.  “It is difficult to imagine a more damaging blow to public confidence in the electoral process than the election of a President whose margin of victory was provided by ... illegal means. Indeed, entirely foreclosing injunctive relief in the federal courts would invite attempts to influence national elections by illegal means.... ” Donahue v. Board of Elections, 435 F.Supp.957, 968 (E.D.N.Y. 1976).  The Federal courts can exercise equitable powers to achiece this.  “The granting of equitable relief premised directly upon the Constitution has long been a practice accepted without discussion. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 404, 91 S.Ct. 1999 (Harlan concurring, 1971)” as cited in Donahue v. Board of Elections, 435 F.Supp., supra at 963.
  “The point, however, is not that ordering a new Presidential election in New York State is beyond the equity jurisdiction of the federal courts. Protecting the integrity of elections - particularly Presidential contests - is essential to a free and democratic society. See United States v. Classic,
United States v. Classic, 313 U.S. 299, 315, 61 S.Ct. 1031 (1941).”
   If a person occupies the Oval Office through “adherence” to an “enemy” of a the United States, that person has obtained office through acts of treason—for which that person cannot be impeached.  The person might have committed treason—before taking office—but that is a time before which the person can be impeached.  As the court in the Donohue case points out, it is difficult to imagine a greater blow to public confidence in the electoral process.
   I shall address, over the next few days, other topics in regard to removal of the President by means of judicial action.  I hope everyone enjoys the Independence Day weekend!

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