Three Possible But Unlikely Scenarios Involving Trump’s Removal From Office

Since so much of President Donald Trump’s presidency, including even the proceedings related to his probable impeachment, have been very unusual, virtually unprecedented, and certainly unpredictable, it may be prudent to think ahead, and perhaps even begin to plan, about some plausible impeachment-related scenarios which are possible. It is important to think about Trump’s removal from office even if not likely – to occur, suggests public interest law professor John Banzhaf, who played a role in President Nixon’s downfall.

These 3 plausible twists and turns in an already very unusual proceeding include a possible vote in the Senate by secret ballot which might just lead to Trump’s removal from office; a determination by Chief Justice John Roberts, in presiding over the Senate trial, or by the Senate itself, that the impeachment violates the U.S. Constitution and therefore is legally “void” and cannot be voted upon; and that, if the Senate does vote to remove Trump from office, he will refuse to leave and the matter will then be taken to the courts, says Banzhaf.

Trump impeachment outline

FIRST, in what Politico calls a “Surprisingly Plausible Path to Removing Trump From Office,” there is speculation that as few as 3 Republican senators, by joining with Democrats, could force the Senate to vote on Trump’s removal from office by a secret ballot; a move which others predict could cause many Republican senators to vote for his removal, a result which would be almost unthinkable if their votes, as expected, were to be made public.

After noting that Republican and Democratic senators all agreed on rules to govern the Senate trial of then-president Bill Clinton, and that it takes a simple majority of 51 votes to support a resolution to govern Trump’s trial, as few as 3 Republican senators arguably would be able to block the adoption of new rules by joining with all the Democratic senators in insisting that the final votes for removal would be taken in secret – thereby freeing Republican senators from political repercussions from their votes.

It’s argued that Vice President Mike Pence, who ordinarily can break a tie of legislative matters, isn’t permitting to vote to break ties in votes on impeachment matters.

It’s also suggested that at least 3 of the 5 current Republican senators who are retiring might support a secret ballot for a variety of reasons – e.g., to provide political cover for their Republican colleagues who do have to stand for reelection, because the retirees would support anything likely to make Trump’s removal from office more likely, etc. – and also that some of the 10 Republican senators not up for reelection until 2024 might join them because they would not be very concerned about any immediate backlash if they likewise held out for a secret ballot.

It’s also argued that, even though open and recorded voting is customary, even in impeachment trials, the Senate in voting on Trump will be acting like a jury where votes are taken in secret, and that, when the Electoral College deadlocked in the past, House votes to elect Thomas Jefferson in 1800, and John Quincy Adams in 1824, were conducted by secret ballot to permit representatives to vote free from political pressure.

Moreover, the Constitution expressly provides that “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment REQUIRE SECRECY,” [emphasis added].

So, a rule providing for a secret ballot would clearly be constitutional, and also have some congressional precedent.

Should this scenario come to pass, there is further speculation. Some senators and pundits have predicted that, if voting for removal were to be held by a secret ballot, some 25 or more Republican senators would probably vote to remove Trump from office.

Indeed, GOP strategist Mike Murphy recounted that a sitting Republican senator had confirmed that 30 of his colleagues would vote to convict Trump if voting were by secret ballot, and former Senator Jeff Flake went even further, predicting that 35 of his former Republican senators would join with Democrats to remove Trump from office.

The result, of course, would not be a reversal of the 2016 election which arguably would cause Hillary Clinton to become president.  Instead, it would be that Pense, a staunch and more traditional Republican – whom many in the party reportedly would much prefer to Trump – would take over as president, and arguably would be better able to lead the party to more electoral victories than Trump could have accomplished.

Moreover, if voting by a secret ballot were to be announced, there is further speculation that Trump, able to read the handwriting of his removal on the wall, might simply choose to resign to avoid further damage to his reputation, perhaps offering some arguably plausible excuse or reason.

Some have even gone further, speculating that under those circumstances where removal is likely, Trump would agree to resign the presidency, but only if his resignation were conditioned upon a deal where he would be shielded from various possible state criminal prosecutions now in the investigatory stage, and also from federal criminal charges.

Here history reminds us that former-president Richard Nixon received a full pardon when he stepped down to avoid impeachment, and that former-vice-president Spiro T. Agnew insisted upon a plea deal to induce him to resign his vice presidency, says Banzhaf, who later helped to successfully sue Agnew for the return of money he received in bribes.

As Politico concludes: “The sooner any three Republican senators make clear that they will support nothing short of a secret ballot, the sooner Trump realizes his best course could be to cut a deal, trading his office for a get-out-of-jail-free card-a clean slate from prosecutors-just as Vice President Spiro Agnew did.”

#2 Trump’s removal from office fails

SECOND, many members of Congress, as well as several impartial legal experts, have claimed that the articles of impeachment adopted by the Judiciary Committee, and likely to be adopted by the House, are unconstitutional for a variety of reasons.

These reasons include – as argued by GWU law professor Jonathan Turley, former Harvard law professor Alan Dershowitz, and many other constitutional experts – that an impeachment must include reference to at least one crime, that the process violated Due Process, that the evidence is too “thin” (in Turley’s analysis) to support an impeachment, etc.

Therefore, it could be argued, the document adopted by the House and presented to the Senate would be null and void, and could not constitutionally result in a trial, much less any possible Senate vote to remove Trump from office.

Or, as Alexander Hamilton – who had a major role in drafting the Constitution – wrote in Federalist No. 78: “There is no position which depends on CLEARER PRINCIPLES, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, IS VOID. No legislative act, therefore, contrary to the Constitution, can BE VALID.” [emphasis added]

So, since a Senate trial arguably cannot proceed based upon a document which is void and not valid, an argument can be made to presiding Chief Justice John Roberts, and/or to the Senate itself, that the proceeding must be adjourned as void ab initio [“to be treated as invalid from the outset”] without any trial at all.

Putting aside the legal strengths and weaknesses of such an argument, it would produce a result which might greatly please both the President and most Republican senators, since Trump could claim complete vindication and then harangue the Democrats for trying to use an unconstitutional tactic to remove him from office, and both would avoid a trial which might prove embarrassing and time consuming.

Indeed, such a scenario might even not be strongly opposed by the Democrats who could still claim that they had performed their constitutional duties, and shamed or rebuked the president by impeaching him, even though the Senate’s Republican majority would almost certainly have blocked his subsequent removal.  It would also benefit senators running for president who would otherwise lose valuable campaigning time during a trial.

Democrats might also see it as a face-saving means of avoiding an anticipated rout if, after a trial, the Senate as expected votes to not convict the president, and especially if some Democrats defect and join all the Republicans in voting not to remove him from office.

Moreover, dispensing with a trial might also avoid the possibility that the Republicans might be able to call as witnesses – and embarrass through cross examination – figures such as presidential candidate Joe Biden and his son Hunter, House Intelligence Committee Chairman Adam B. Schiff, the “whistleblower,” and others whose testimony some Republican senators have demanded.

So, under the second scenario of a claim that the impeachment resolution itself is “void” and cannot be “valid,” the trial of President Donald Trump would end “not with a bang but a whimper,” suggests Banzhaf.

#3 Trump’s removed from office but he does not leave?

THIRD, the least likely, but most potentially dangerous scenario of all, could occur if somehow the Senate did vote by the required two-thirds majority to remove Trump from the office of the presidency but he refused to leave, claiming some fatal constitutional defect – including some suggested by leading and impartial constitutional scholars –  in the impeachment removal process.

That, of course, would create the most serious and dangerous constitutional crisis since the Civil War; potentially more serious that the situation involving Nixon, claims Banzhaf, who played a role in obtaining the special prosecutor which led to Nixon’s ultimate downfall.

This is because any such scenario would leave someone whom both houses of Congress determined was not fit to be president still in the office, with the awesome power to start a nuclear or conventional war, wreck the economy, and even pardon his cronies now in prison, before the matter is finally resolved one way or the other.

Under this scenario, either Trump or the Congress might ask the courts, including the Supreme Court, to take some action to resolve the constitutional standoff, but there are many reasons why various courts might choose not to rule on whatever case is brought before them regarding this issue.

Moreover, there is no guarantee that Trump would necessarily honor a decision by the judicial branch, even one by the Supreme Court itself.

In short, says Banzhaf, there are a number plausible but not very likely scenarios growing out of an expected House vote to impeach the President; some might even end in a whimper, but others could result in a major constitutional crisis.



About the Author

JOHN F. BANZHAF
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW, Wash, DC 20052, USA (202) 994-7229 // (703) 527-8418 http://banzhaf.net/ jbanzhaf@law.gwu.edu