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The Path Forward 

Huffman weighs in on impeachment, the 25th and 14th amendments, and the threat of future violence

A discarded flag reading "Treason" lays on the floor inside the U.S. Capitol on Jan. 6.

Alex Gakos / Shutterstock

A discarded flag reading "Treason" lays on the floor inside the U.S. Capitol on Jan. 6.

On the afternoon of Jan. 6, North Coast Rep. Jared Huffman was coming out of an hours-long lockdown during which he was forced to shelter in place alone in his Capitol office, keeping away from windows with his doors locked and a go-bag at the ready. Periodic explosions pierced the constant din as Capitol Police engaged in a deadly clash with rioters in the U.S. Capitol building.

The rioters and insurrectionists had been cleared from the building and Congress was preparing to again take up its Constitutional duty of certifying the Electoral College results from the Nov. 3 election — the very work President Trump, thousands of protesters and the violent mob that stormed the building had attempted to prevent them from completing and which would make President-elect Joe Biden's victory official. As he waited while Capitol police swept the building to ensure it was safe for Congress to resume its work, Huffman took to Twitter.

"We are going to impeach the seditious criminal Trump (again), and this time we convict in the Senate," he wrote. "Even if it happens after he leaves office. This just cannot stand."

Whether Huffman knew it or not, two of his colleagues — David Cicilline (D-Rhode Island) and Ted Lieu (D-California) — had spent the lockdown drafting articles of impeachment.

Five days later, with an effort to remove Donald Trump from office in full swing, the Journal spoke to Huffman by phone to discuss the prospects of Trump's cabinet declaring the president unfit to fulfill his duties, Congress making him the first president to be impeached twice and whether some of Huffman's Republican colleagues should also be removed from their posts. But first, Huffman said he's still processing what took place over the span of roughly five hours Jan. 6 and culminated with the U.S. Capitol building being breached for the first time since the War of 1812.

Like much of the nation, Huffman said he's watched with shock and horror as more details have emerged about the attack coupled with videos of the violent clashes that ultimately left five people, including a Capitol Police officer, dead.

"This was a very serious operation," Huffman said, noting that some of the insurrectionists wore high-grade body armor and radios, were armed while carrying zip ties. "There has been this delayed onset of awareness of just how bad it was. When I talked [to the Journal on Jan. 6], it was in the moment and there was a certain amount of adrenaline and also just a lack of detail and visibility in terms of the real threat. That's why I felt pretty calm all the way through. But the more I learned, this was a really massive security failure where the Capitol was under a very real threat."

As this edition of the Journal went to press, the House had passed a resolution imploring Vice President Mike Pence to invoke a process to remove President Trump from office under the 25th amendment. Expecting that would prove ineffective, Democrats had also introduced the articles of impeachment, which were expected to come to a vote on the House floor as soon as Jan. 13. Here's a look at the processes at play — all without modern precedent — and Huffman's views on what should be done to hold the president and some of his House colleagues accountable for what Huffman sees as their roles inciting a siege on the Capitol and an attempt to obstruct Congress from doing its Constitutional duty.

The 25th Amendment

Passed by Congress in 1965 and ratified two years later, the 25th Amendment was brought forward at a time when the presidency seemed newly fragile. President Franklin Delano Roosevelt had died in office two decades earlier after suffering a massive intracerebral hemorrhage and, just two years earlier, President John F. Kennedy had been assassinated in Dallas, Texas.

Ryan Emenaker, a professor of political science at College of the Redwoods and constitutional law lecturer at Johns Hopkins University, said these two instances likely inspired Congress to craft the 25th Amendment to fill gaps in the lines of presidential succession.

It's the 25th Amendment, Emenaker said, that explicitly states it's the vice president who shall become president should a president be removed from office, resign or die, and outlines the process by which a new vice president would be appointed should one resign in office. This amendment has also allowed presidents to temporarily transfer power to their vice presidents when undergoing surgeries or medical procedures, as both Ronald Reagan and George W. Bush did.

The current discussion is about the amendment's untested fourth section, which outlines a process in which a president can be removed from office against their will if it's found they are "unable to discharge the powers and duties of [the] office." While this section was clearly intended to dictate what should happen should a president fall into a coma or suffer some other medical emergency that rendered them unable to fulfill their duties, Emenaker said it was also clearly crafted to be broader than that.

"They were considering mental instability," he said. "One of the amendment's key architects in the house used the term 'by reason of mental disability, unable or unwilling to make rational decisions, particularly the decision to stand aside.'"

But Congress was also leery of giving itself or anyone else broad authority to remove a president against their will, so it crafted the process for removing a president in such a situation carefully so it was "unlikely to result in a coup," Emenaker said.

The resulting process places the initial power to make such a decision in the hands of the president's vice president and cabinet — people politically aligned and loyal to the president, and also those who "have the most insight into his day-to-day actions," Emenaker said. Under the process, it's the vice president who must initiate the process and then a majority of the 15 cabinet members must vote for removal. If that happens, the matter goes to Congress, which within 21 days must ratify the cabinet's decision with a two-thirds vote in both houses. If that fails, the president would resume their duties.

This is the process Democratic leaders have pushed to invoke, with public statements, calls directly to the Vice President and most recently the Jan. 12 resolution, all the while using the threat of impeachment as political leverage. But news reports citing sources close to Vice President Mike Pence have indicated he has no intention of moving forward with the process. That, Huffman says, leaves impeachment.

"There is a strong consensus and a lot of resolve that we have no choice to do this," Huffman said. "We have to move as quickly as possible with impeachment. The hope is it will pressure Mike Pence into invoking the 25th Amendment but we really have no choice given the events of last week have really laid bare the threat that Trump poses to our security and our democracy."

Impeachment

With the 25th Amendment seemingly off the table, it appeared very likely the House would vote to impeach President Trump for a second time before week's end. The simple majority vote would charge the president with "inciting violence against the government of the United States," arguing that his false allegations of widespread election fraud and theft, coupled with his urging supporters to come to Washington, D.C., to stop the Electoral College certification vote and his speech the morning of Jan. 6 telling supporters to "fight like hell" to change the election's outcome directly incited the insurrection that laid siege to the Capitol.

If a majority of the Democrat-controlled House votes to charge the president, a trial would then be held in the Senate, which would need a two-thirds vote to convict him.

Huffman said he feels the case is simply a slam dunk. First off, Huffman said, there's the fact that while almost 60 lawsuits brought by Trump's campaign and its supporters, as well as investigations by the Justice Department, uncovered no evidence of widespread fraud in the November election, the president persisted in repeating the false claim that the election was stolen, riling his supporters. Then, Huffman said, the president gave his supporters the false impression they could sway the Jan. 6 vote to certify the Electoral College vote, when lawmakers and the vice president are really Constitutionally bound to certify the state-approved election results. Finally, Huffman said, the president used incendiary rhetoric, ultimately directing supporters to march on the U.S. Capitol building to "fight" for their country.

Reports published in the wake of the insurrection detailing how the president and his personal lawyer used the delay caused by the riots to lobby senators to object to the certification while refusing to publicly condemn the violence only strengthen the case, Huffman said, arguing those reports just "gild the lily."

If the House does vote to impeach Trump, the case would likely move to the Senate for trial regardless of whether Trump remains in office. Emenaker said the law is not "100 percent dispositive" on this question, though the best available legal analysis indicates a president can be impeached by the Senate after leaving office. If that weren't the case, Emenaker said, there would be nothing to prevent a president from resigning on the eve of an impeachment vote to avoid being stripped of their pension, Secret Service detail and ability to again run for federal office.

"You end up in some interesting situations in that case," he said, adding it would "incentivize people to resign" and do "silly" things. "That just can't be the right answer."

But the stakes do change if a president is convicted after leaving office, Emenaker said, explaining that while a post-presidency conviction could prohibit someone from running again for federal office, it would leave their pension and Secret Service detail intact. But that's only if the case gets to the point of conviction and, while it seems likely the House would have enough votes to concede, it remains to be seen whether 17 Republican senators would vote to convict, though several have already indicated they may.

The 14th Amendment

It's not only the president who faces the threat of removal from office in the wake of Jan. 6 siege. House Speaker Nancy Pelosi has broached the subject of removing House colleagues who objected to the Electoral College Certification and were particularly outspoken in spreading falsehoods about election fraud under the 14th Amendment.

Passed by Congress in 1866 and ratified two years later, Emenaker said the 14th Amendment stems directly from the nation's efforts to unify in the wake of the Civil War and Congress' efforts to bring representatives from the South back into the fold while also protecting against further secession efforts. The amendment's Section 3 provides that no one who has previously "engaged insurrection or rebellion against the [United States Constitution], or given comfort to the enemies thereof," while serving as an elected officer shall be allowed to serve in Congress, or as the president or vice president. If such a situation should come to pass, the section allows an elected official to be removed by a two-thirds vote of both houses.

"It was about making sure certain people weren't seated in Congress who were going to vote against the interests of the chamber and the country," Emenaker explained, adding that to his knowledge the amendment has never been wielded in its more than 150-year history.

Huffman said he believes the amendment now should apply to some of his colleagues who sought to overturn the will of voters — and to violate Congress' constitutional obligation to certify the Electoral College vote — without any substantial evidence of fraud.

"You just have to do it," Huffman said. "That Section 3 of the 14th Amendment was permanently put into the Constitution for a reason. It was not a one-time deal for insurrectionists in the Civil War. This was forever because Congress wanted to make sure no insurrectionist ever served in Congress, and the people of the United States also wanted to make sure because they ratified that amendment. If it doesn't apply in this moment, it never applies because this was a bold-faced insurrection."

As the Journal went to press Jan. 12, it seemed very likely the House was quickly moving forward with impeachment, but the path forward from there remained uncertain as lawmakers wrestled with the conflicting notions of accountability and reconciliation, all while bracing for more violence.

It's clear, Emenaker said, that the United States is in uncharted territory.

"I definitely think this is unprecedented — this is absolutely shocking," he said. "I have to assume that if you changed a few things about the protest, if it was people protesting police brutality or protesting racial injustice, you'd see an outcry that's much stronger. ... And it seems like as more and more information is coming out, it's sounding worse and worse."

The challenge for Congress, Emenaker said, is finding a balance between accountability and reconciliation.

"Even in a personal relationship, if you go to reconciliation without dealing with the issues that came up, then it's not really reconciliation, you're just moving forward," he said, speaking to the ideal principles of good governance. "And there's a certain level at which a violation is more than 'I just don't agree with you,' and it's quite literally that you don't have the best interests of the country at heart. ... You can be too quick to reconcile but, at times, accountability can also turn to vengeance. There's a tension there. You have to figure out the right balance."

Huffman, for his part, feels like accountability needs to be swift and thorough before any talk of reconciliation or healing.

"To watch some of these folks pivot seamlessly from insurrection to calls for unity is not at all credible," he said. "The people who are sincerely interested in unity are gonna keep working in good faith to govern and to build unity, and I consider myself one of those and you will see my best efforts. But you don't achieve unity by looking the other way to an armed insurrection and deadly coup attempt. There must be accountability."

As to the notion that an impeachment vote or other efforts to remove Trump from office would trigger more acts of violence, Huffman dismissed those concerns.

"Let's pause and think about that one," he said. "So the president's support is not already galvanized? That's laughable on its face. The president's base of support has taken up arms against the country. The idea that we must stand down because we might excite or animate the president's base is preposterous."

But Huffman said the fears of further violence are real and warranted. Speaking to reporters Jan. 12 for the first time since the Jan. 6 riot and his ensuing bans from all major social media platforms, Trump said he wants "no violence" before decrying the new impeachment attempt as a "continuation of the greatest witch hunt in the history of politics" and implying it may be responsible for future acts of violence.

"This impeachment is causing tremendous anger," he said. "I think it's causing tremendous danger to our country and it's causing tremendous anger."

Speaking to the Journal before Trump's remarks, Huffman said reports of the presidents' supporters are planning more protests on Jan. 17 and at Biden's inauguration, and that some may be plotting violence against members of Congress, are chilling.

"It's sobering," Huffman said. "I wish I could tell you that I have been reassured that the security threat is resolved and that everything will be just fine, but I'd be lying if I said that. We have no such reassurance and, unfortunately, every reason to believe there may be more trouble."

Thadeus Greenson (he/him) is the Journal's news editor. Reach him at 442-1400, extension 321, or thad@northcoastjournal.com. Follow him on Twitter @thadeusgreenson.com

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Thadeus Greenson

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Thadeus Greenson is the news editor of the North Coast Journal.

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