The Constitution specifies two ways to remove a sitting President: impeachment (Art. II, sec. 4) and action of the VP and others when the President is unable to perform the duties of office (Amend. XXV, sec. 4).
Litigation—i.e., action in the courts—to remove a President obviously is outside those two avenues, but is not precluded by the Constitution. Several times in this blog (most recently yesterday, November 15) Donahue v. Board of Elections, 435 F.Supp.957 (E.D.N.Y. 1976) has been cited as persuasive authority for our Federal courts’ ability to remove a sitting President. Also, it does not appear this case was abrogated by any of the “birther” cases.
There are internet posts, on this topic, seemingly written by people giddy at the chance to compare Trump removal litigation with litigation, almost ten years ago, that claimed President Obama was ineligible to be President because he was not born in the United States. The latter was part of the “birther” movement.
I want to give a metaphorical benzodiazepine to those with such giddiness. A step back from, and a different approach to, discussion of the topic might be helpful. That is what I will do here over the next few days.
Are there similarities between litigation aimed at Trump removal and “birther” cases?
First, I will compare reasons cited by “birthers” cases with reasons presented by advocates for Trump removal as to why the respective presidencies were obtained illegally. Second, I will look at the evidence, if any, to support those reasons. Third, I will explore why courts rejected “birther” cases. If steps 1 and 2 lead to the conclusion “birther” cases were invalid, but cases for Trump removal are valid, we should see if bases for dismissal of “birther” cases can be overcome by Trump removal litigation.
Some are downright scared to go outside specific provisions of the Constitution to address an issue so important as removal of a sitting President. If the Constitution does not specifically say the courts can remove a sitting President, people assert, then such action is outside the courts’ ability to so act. This is a restrictive view of the Constitution.
The Constitution, seen by delegates to the 1787 Convention as a framework for government, is relatively short. “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.
A visceral fear at removal of a President from office, via means not spelled out in the Constitution, should pale next to occupation of the Oval Office by a person placed there by a hostile foreign power, Russia. Our system has been in place and elected Presidents since the first election in 1788. Our system can be compromised.
The “birther” claims were false, even though one of the candidates for President in 2008 most definitely was not physically born in the United States. Because John McCain’s father was in military service outside this country, the future Senator was considered born in the U.S.