Four legal and political experts weigh in on the possible fallout.
Wednesday’s unfathomable US Capitol riot incited by President Donald Trump left a plethora of questions, not the least of which is how Trump, members of Congress who stoked distrust in the presidential election, and the rioters themselves can be held accountable.
Theories have swirled in news media and online. Could Trump be removed from office via another impeachment trial, or even the 25th Amendment? Is Rep. Cori Bush (D-Missouri) likely to succeed in her attempt to expel all Republican lawmakers who voted to overturn the election? What criminal charges can be filed against the rioters?
“There are a lot of technical, constitutional questions, and the answer to almost all of them would be: Nobody knows,” Howard Schweber, an associate professor of political science and legal studies at UW-Madison, said Thursday.
“We have been outside the realm of either legal or practical or political precedence for some time now, and in the last 24 hours we went further into the Twilight Zone,” Schweber said.
UpNorthNews spoke with four legal and political experts in Wisconsin about the possible fallout for everyone involved in the bout of terror. The country’s current situation is undoubtedly extraordinary, and there is no clear outcome.
It’s highly unlikely Trump will be removed from office with less than two weeks left before President-elect Joe Biden’s inauguration, the experts said, but it’s a remarkable development that the idea of his removal either through the 25th Amendment or impeachment has made it into bipartisan mainstream discussion.
Trump’s removal via the 25th Amendment is being demanded not just by moderate Democrats, but by the typically conservative National Association of Manufacturers and even Republican US Rep. Adam Kinzinger of Illinois. Top administration officials in Trump’s cabinet reportedly started discussing his removal Wednesday night.
Numerous Wisconsin Democrats, including Attorney General Josh Kaul; Sen. Tammy Baldwin; Reps. Gwen Moore, Ron Kind, and Mark Pocan; State Treasurer Sarah Godlewski; and 32 state legislators have joined the chorus.
Invoking the 25th Amendment without Trump’s consent would require Vice President Mike Pence and a majority of Trump’s cabinet to declare him unfit for office. If that were to happen, Pence would immediately take over as acting president. Pence does not support the move, according to multiple media reports.
The amendment has never been used without a president’s consent. Ronald Reagan and George W. Bush allowed their vice presidents to temporarily take over during medical procedures.
“Would Pence be willing to act using the 25th Amendment? I just don’t know,” said Geoff Peterson, chairman of the UW-Eau Claire political science department.
Peterson said it is more likely the threat of using the amendment to unseat Trump could be used to keep his behavior in line.
That looming threat perhaps prompted Trump to release a brief video address Thursday night in which he finally conceded to Biden and promised “a smooth, orderly, and seamless transition of power.” Less than 16 hours later, Trump announced in a tweet that he won’t attend Biden’s inauguration.
House Speaker Nancy Pelosi (D-California) and presumptive Senate Majority Leader Chuck Schumer (D-New York) said they will move forward with impeachment proceedings if Trump’s cabinet does not invoke the 25th Amendment. Impeaching the president would require a simple majority of votes in the Democrat-led House, but a two-thirds Senate majority is needed to convict and remove the president. Republicans currently hold the Senate with a 52-48 majority.
Schweber said one possible scenario—albeit one subject to legal and constitutional debate—is that Trump could be impeached and convicted even after his term ends. If a president is convicted in a Senate impeachment trial, they are barred from ever holding public office again.
The Senate will be a 50-50 Democratic-Republican split once Sens.-elect Jon Ossof and Raphael Warnock of Georgia are sworn in after final certification of that state’s votes.
“Of course, for a two-thirds for conviction [Democrats] need Republican support as well, but at this point they might have it,” Schweber said. “So it’s not at all inconceivable to me that even after Jan. 20 there might be some talk to impeach then-ex-President Trump in order to prevent him from seeking office in the future.”
What about Congress?
Like Trump, US representatives and senators who stoked misinformation about the election that influenced rioters are unlikely to find themselves in much trouble with anyone but possible voters during their next campaign.
Because false statements are generally afforded First Amendment protection, people like Wisconsin Sen. Ron Johnson who pushed blatant falsehoods for months are all but immune from legal consequences, according to Sara Benesh, associate professor and chair of UW-Milwaukee’s Department of Political Science.
“So, in short, the only remedies available are expulsion or censure by the House or Senate, and citizens deciding to vote them out, so far as I can tell,” Benesh wrote in an email to UpNorthNews. “According to the Supreme Court, the usual answer to bad/stupid/false/hurtful speech is just MORE speech, in opposition.”
Arthur Cyr, a political science professor at Carthage College and director of the Clausen Center for World Business, agreed that the falsehoods would fall under the First Amendment.
“Keep in mind that [members of Congress] have the same free speech protections as everyone else,” Cyr wrote in an email.
Schweber said “it’s not impossible” that some more radical members of Congress or even Trump could be criminally charged for inciting a riot, but he said it was unlikely. It comes down, Schweber said, to the difference between the plain-English definition of “incitement” and the criminal definition, which Trump and other Republicans’ statements may not meet.
“The legal standard of incitement requires imminence,” Schweber said. “So the model is someone yelling at a crowd, ‘Break the windows!’ As opposed to someone saying something in an interview that later becomes fodder for conspiracy theories.”
Schweber said a court could potentially find Trump or members of Congress liable for civil damages, especially because of the five deaths that occurred as a result of the riot: Three rioters died in medical emergencies, one was fatally shot as she tried to climb over a barricade within the Capitol, and a Capitol police officer died after being attacked by a group of extremists.
Members of Congress cannot be recalled. They can only be removed from office through expulsion, which requires a two-thirds vote by their colleagues and is exceedingly rare.
Just 15 senators have ever been expelled, and 14 of those instances were due to those senators’ support for the Confederacy during the Civil War. Even fewer House representatives—just five—have been expelled, three of whom supported the Confederacy.
Censuring, a formal, public reprimand that does not unseat a member of Congress, has a lower threshold of a simple majority vote. But it is still a scarce occurrence. Just 23 representatives and nine senators have been censured.
Because such formal reprimands are so rare, Bush, the Democratic Missouri representative who wants to expel all Republicans who voted to overturn the election, is likely to fail in her effort, Schweber said. He said individual members who spread the most extreme rhetoric might be successfully targeted for expulsion as individuals rather than as a large group.
The riot caused even some of the most extreme Republicans to flip-flop when business resumed Wednesday night. Johnson and Georgia Sen. Kelly Loeffler, two senators who most vocally opposed certifying the election in the two months since Biden was declared the winner, ended up backing off. Republican Congressmen Tom Tiffany and Scott Fitzgerald were the only Wisconsin Republicans to object to certification.
Rioters could face sedition charges
While the elected officials who inspired the shocking, brazen riot are unlikely to face criminal charges, the people who participated in the Capitol storming will almost certainly be charged with high crimes, experts said.
Pro-Trump extremeists were pictured spreading chaos throughout the Capitol, whether by breaking into the House and Senate chambers, or stealing items from representatives’ and senators’ offices.
“This depends on what the charges brought will be, but their actions surely fall under the definition of sedition,” Benesh said.
She continued, “Of course, prosecutors may choose to be more lenient with charges, depending on the person’s behavior, and stick to property and trespass crimes.”
However, Benesh said, the rioters could also find themselves subject to harsher punishment due to an executive order issued by the man they stormed the Capitol for. That’s because, in the wake of the summer 2020 protests against police violence and systemic racism, Trump attempted to increase to 10 years’ imprisonment the penalty for destroying, damaging, vandalizing, or desecrating government property including monuments, memorials, and statues.
“This is a clear case of criminal activity, and trespassing, destruction of property, violence, and assault [that] should and will be prosecuted,” Cyr said.