“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Article II, Section 4

During his 2016 presidential campaign, then candidate Trump bragged, “I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters.”  Sadly, his boast was likely accurate given the millions of Americans who, in the absence of any evidence, continue to believe his “big lie” that massive voter fraud cost him reelection in 2020. 

Among them, Trump found thousands of unquestioning MAGA acolytes, members of White and Christian Nationalist organizations and self-serving politicians willing to sacrifice our democracy at the altar of personal ambition more than eager to actively support the personal campaign he orchestrated to overturn the election and remain in office … and which culminated with the January 6th storming of the Capitol.

For a brief moment, faced with the possibility of a presidential coup to prevent the peaceful transfer of power, tribal party politics trumped patriotism and our government seemed impotent to protect and preserve our Republic.

Article II stipulates a president can only be permanently removed from office through impeachment. 

With the 1967 adoption of the 25th Amendment’s another avenue for removing a president became effective; “Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

In today’s toxic and highly-partisan political environment, it’s doubtful any impeached president would be convicted by the Senate or that a sufficient number of senior presidential appointees, pursuant to the 25th Amendment, would put patriotism above loyalty to an individual and remove a president who had committed serious crimes for which any other American would be indicted, convicted and likely imprisoned.

In 2000 the Justice Department, mistakenly assuming a president’s responsibilities are “so unique and important”, issued a memo; “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions,” despite there being no language in the Constitution even remotely suggesting a sitting president is shielded from criminal indictment or prosecution.

The DOJ also ignored the fact vice presidents are elected to be ready to assume presidential duties at a moment’s notice and allowing any individual, including a president, to be “above the law” represents a threat to our nation’s ideal of “equal protection”, undermines our democracy and potentially paves the way for an authoritarian despot. 

Should a long-overdue challenge to the DOJ’s ill-conceived memorandum reach the Supreme Court, given its conservative majority’s frequent reliance on “originalism” and a literal interpretation of the Constitution, any decision other than no American, including a sitting president, can or should be above the law would be a dangerous and unacceptable travesty for our Republic and further erode the Court’s already flagging credibility.