15 January 2021
On 6 January 2021, pro-Trump protestors violently stormed the US Capitol in Washington DC as Congress was meeting to certify the 2020 presidential election results. Proceedings were suspended as the mob occupied both House and Senate chambers and vandalised members’ offices. Five deaths resulted, including a Capitol police officer.
As the US Government responds, American democracy is in uncharted territory. The United States Studies Centre (USSC) will be providing ongoing analysis and information to help explain these events. Here are answers to some of our most frequently asked questions.
The 2020 presidential elections have been repeatedly criticised by President Trump and his supporters as fraudulent. Multiple court cases were brought by the Trump campaign and supporters seeking to challenge the election results in key states won by Trump in 2016 but lost to Biden in 2020. Virtually every case was dismissed for want of evidence.
President Trump staged a “Save America” rally on the National Mall on the morning on 6 January, ahead of the last stage of the 2020 election process, when Congress met to certify the Electoral College results.
President Trump had repeatedly and consistently alleged fraud with the election. On Twitter, he urged his supporters to come to the 6 January rally, saying “Be there. Will be wild!”
Trump’s speech at the rally become central to the impeachment charges later brought and adopted by the House of Representatives. Specifically, Trump told the rally, “Something is wrong here, something is really wrong, can’t have happened and we fight, we fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.” Trump urged his supporters to then march to the Capitol.
On 13 January 2021, with just a week left in Trump’s presidency, the House of Representatives adopted a single article of impeachment against President Trump citing “incitement of insurrection”. The article also referenced section 3 of the 14th Amendment of the US Constitution which prohibits those “engaged in insurrection or rebellion against the United States” from “hold[ing] any office…under the United States.” The article was introduced and adopted in record time (in two days), without referral to the House Judiciary Committee to hear testimony as has been the case in previous presidential impeachments. Trump’s second impeachment is also historic in that it passed with (a) the most votes ever recorded for a presidential impeachment and (b) the most votes for an impeachment cast by members of the president’s own party (10).
Impeachment is akin to indicting a president. Removing a president from office can only take place after a trial in the Senate, with a two-thirds majority vote required for conviction. No president has ever been removed from office this way.
Moreover, the Senate has some discretion as to when it holds the trial and the Speaker of the House also has discretion as to when the article of impeachment is conveyed to the Senate.
Current Senate Majority Leader Mitch McConnell has publicly said that he will not fast-track impeachment proceedings, all but guaranteeing there will be no trial nor a vote to convict before Trump’s term expires at noon on Wednesday 20 January 2021.
There is historical precedent for impeachment and a Senate trial after the accused person leaves office. Many Federal offices are subject to the impeachment provisions of the US Constitution (Article II, Section 4), not just presidents. In 1876, the corrupt Secretary of War, William Belknap, resigned hoping to head off his pending impeachment; impeachment and a Senate conviction nonetheless followed.
The rationale for proceeding with a Senate trial — even when removal from office is a moot point — is that the US Constitution also expressly provides that sanctions for impeachable “high crimes and misdemeanours” include “disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States” (Article II, Section 3).
If Trump was convicted in a Senate trial, this disqualification could well be among the sanctions it imposes. A simple majority vote (50 senators of plus one) is sufficient to impose this sanction after a two-thirds vote.
Moreover, there is some opinion suggesting that a majority vote of both houses of Congress may be sufficient to find that Trump has violated section 3 of the 14th Amendment of the US Constitution, which prohibits those who have “engaged in insurrection or rebellion against the [Constitution], or given aid or comfort to the enemies thereof” from holding Federal office. In 1919, Congress used the 14th Amendment to block an elected official, Victor Berger, from assuming his seat in the House because he had actively opposed US intervention in World War I.
The special election for the two senators from Georgia was held on 5 January 2021. Both seats were narrowly won by Democratic candidates, which will change the majority in the Senate. Before they can be sworn in, the counties must certify votes by 15 January and the Georgia Secretary of State has until 22 January to certify the election results. The new senators will be sworn in almost immediately after the state’s certification of the election results.
The current makeup of the Senate is 50 Republicans, 46 Democrats and 2 Independents (who caucus with the Democrats) – 99 total (with one vacancy because Senator Purdue’s term ended on 3 January). When the new senators are sworn in, the remaining Georgia incumbent (Loeffler) will lose her seat and the breakdown will be 49 Republicans, 48 Democrats and 2 Independents (who caucus with the Democrats.) This will give the Democratic coalition a majority, meaning Mitch McConnell and Chuck Schumer will swap roles as Senate Majority and Minority leaders. Until noon on 20 January, Vice President Pence is the tie-breaking vote in the Senate. After that time, Vice President Kamala Harris will be the tie-breaking vote.
According to the Presidential Succession Act of 1947, if the President of the United States is incapacitated, dies, resigns, is for any reason unable to hold office or is removed from office, they will be replaced in the following order:
The line of succession of cabinet officers is in order of their agencies’ creation. This is why, for example, the Secretary of Agriculture would come in 9th and the Secretary of Homeland Security comes in 18th in line.
If a presumptive president-elect were to die before the December electoral college vote, the Democratic National Committee would be able to name a replacement candidate and pressure electors committed to that candidate to support the alternative instead. Presumably, but not necessarily, the new candidate would be the vice-president.
However, the December electoral college vote and the Congressional certification of the electoral college vote has passed. The next milestone is noon on the 20th of January (Inauguration Day), as proscribed by the 20th Amendment which states “if, at the time fixed for the beginning of the term of the president, the president-elect shall have died, the vice president-elect shall become president.”
Accordingly, if President-elect Biden was unable to take office on 20 January, Kamala Harris would step in to be inaugurated as president. If something happened to both Joe Biden and Kamala Harris, then Speaker of the House Nancy Pelosi is next in line to take over the Presidency, according to the Presidential Succession Act.
Under no constitutionally proscribed scenario will Donald Trump remain president after noon on 20 January 2021.
If Kamala Harris was sworn in as president, she would nominate a new vice-president to replace her previous role. Many think the Speaker of the House, Nancy Pelosi, would become vice-president as she is next in line for the Presidency after Harris according to the Presidential Succession Act. However, while she is second in line for the presidency, she is not automatically in line for the vice-presidency. This is covered under Section 2 of the 25th Amendment which states:
"Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress."
It is worth noting that the vice-presidency has been left vacant for extended periods of time, an example of which is described on the US Senate government website:
"The 20th century began without a vice president. Vice President Garret Hobart had died in November 1899, leaving the office vacant, as it had been on 10 previous occasions for periods ranging from a few months to nearly four years. The nation had gotten along just fine. No one much noticed Hobart’s absence."
Research that may be of interest as you make sense of current events in the United States includes:
The United States Studies Centre hosted a virtual address and in-conversation event with Senator the Hon Penny Wong to launch the United States Studies Centre report “Correcting the course: How the Biden administration should compete...
Labor has fired a warning shot at the Morrison government over its nuclear-powered submarine plans, demanding assurances that Australia will maintain its freedom to make different decisions from the US on military engagements.