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Guest Column by Jerry Goldfeder: “Remove The President? Read This First”

Remove the President? Read This First.

By Jerry H. Goldfeder (originally appearing in the New York Law Journal, reproduced with author’s permission).

Four months into President Donald Trump’s term, his presidency appears in jeopardy. Calls for his removal abound. But whatever one thinks of a president’s policies, temperament or competence, removing him from office before the next election is an extraordinary act. In our 230-year electoral history, no president has ever been ousted except at the ballot box. And now that a special prosecutor with impeccable credentials has been appointed, and an independent investigatory commission is perhaps on the way, it is time to take a deep breath. The jury is still out as to what facts will actually surface. That said, the process of removal should be understood. There are two ways to do it.


First, there is the impeachment process, imported by our Founders from the centuries-old practice in England. A majority of the House of Representatives votes to impeach, a process similar to an indictment. If the House impeaches, the Senate acts as a jury, and a two-thirds vote is required to remove the president (or other civil officer) from office. The rules of evidence are unlike those in civil or criminal trials, and there is no requirement that members of Congress be impartial. There is also no appeal process. As imperfect as this might sound, impeachment nevertheless is a constitutional safety-valve, to protect the American people F -2- from a chief executive who is seen as undermining our democratic republic. In the words of Alexander Hamilton in Federalist No. 65, impeachment is meant to remedy an “abuse or violation of some public trust.” To impeach a president, the House must find that he committed “treason, bribery or other high crimes and misdemeanors.” Treason and bribery are defined in relatively easy-to-understand penal statutes. But what is meant by “high crimes and misdemeanors”? Gerald Ford, thenRepublican leader of the House of Representatives, glibly pronounced: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” While Ford’s definition is useless, it underscores the opaqueness of its meaning. History and scholarship do provide some guidance, however. Despite the language of the provision, a president can be removed for conduct that is not necessarily criminal. Even if no crime could be proven beyond a reasonable doubt, removal by impeachment might be appropriate. On the other hand, if President Trump’s yet-unknown actions were found to constitute sufficient elements of a crime, they might not warrant impeachment. The process was meant to be based upon the good faith judgment of Congress.1 Of the three presidential impeachment proceedings to date, two were a misapplication of the process. President Andrew Johnson was charged with disobeying a congressional act, but he was actually set up by his opponents over post-Civil War political differences. President Bill Clinton, though he obviously acted improperly regarding testimony in a sexual assault case, did not abuse the powers of his office. Only Richard Nixon appropriately faced impeachment after he misused the FBI, CIA and IRS, and clearly obstructed justice in a criminal investigation. As we know, he escaped almost-certain removal by resigning.

25th Amendment

The second way to remove a president is also fraught with ambiguity. The 25th Amendment to the constitution, ratified in 1967, permits a vice president and majority of the cabinet to temporarily remove a president if he is “unable to discharge the powers and duties of his office,” permitting the vice president to assume the role of Acting President. If this occurs and the president balks, Congress acts as the final arbiter. Except in fictionalized accounts such as West Wing, this constitutional provision has never been used.2 Like the impeachment provision, this removal procedure lacks a clear standard. What does it mean for a president to be “unable” to discharge his duties? Does it refer to a physical or medical condition? Or perhaps an emotional or mental disposition? Congressional debates during ratification provide only a clue: unpopularity, incompetence, poor judgment or laziness is not enough. So even assuming that Vice President Pence and the cabinet wanted to consider removing President Trump under the 25th Amendment, on what basis would they determine that it was appropriate to do so? I am no fan of the President or his policies. I check the news constantly with trepidation, and am worried about the strength and endurance of our constitutional democracy. But I am also concerned about using our Constitution to prematurely remove a president from office. To paraphrase Sergeant Friday from the 1950s television show Dragnet, let’s give the investigators time to uncover all the facts, and just the facts. Only then should a judgment be made about removal.



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State Court Rejects Challenge To Independent Expenditures in L.I. Assembly Race

A state supreme court justice in Albany  rejected a challenge to independent expenditures in today’s Long Island special election to fill an Assembly vacancy. The court rules that  there is no private cause of action to enforce violations of the independent expenditure rules enacted last year, following the Nassau County decision in McGrath.

The decision can be read here: Lauder v Pellegrino Dec_Order_Judg_No. 3179-17

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Crowley Appointee To Board Of Elections Sees Spike In Queens Court Profits

In Gotham Gazette, Rachel Silberstein reports “(t)he Queens Democratic Board of Elections commissioner, who in the past has come under fire for conflicts of interest, is quickly becoming one of the highest earning recipients of Queens court patronage.”

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As Legislative Leaders Warn Of Con Con Dangers, Good Government Groups Come Out In Favor

Rachel Silberstein reports in the Gotham Gazette: “(w)hile legislative leaders are declaring opposition to a New York State constitutional convention, government reform organizations are trending in the other direction, with some who were wary of the idea in previous years coming out in support or considering doing so.”

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Assembly To Pass Legislative Package To Expand Voting Opportunities

From an Assembly press release:

Assembly Speaker Carl Heastie and Election Law Committee Chair Michael Cusick today announced the Assembly will pass a comprehensive package of legislation this week to improve voter participation by increasing voting opportunities and facilitating and modernizing the registration process.

“The Assembly Majority is committed to creating the most equitable election process possible for New York State voters,” said Speaker Heastie. “That is why our legislative package includes measures to reduce registration burdens and increases voting opportunities so that everyone can make their voice heard.”

“Voting is one of the greatest civic responsibilities we hold as citizens and therefore, as legislators, we have a responsibility to protect and expand access to the ballot,” said Assemblymember Cusick. “This legislation will ensure that voters are able to more effectively participate in the electoral process, and in turn, allow the government to better serve people.”

The package includes legislation that would give New Yorkers more opportunities to vote and greater flexibility in doing so. One measure would establish a seven-day early voting period for any registered New York voters to vote in person prior to any primary, special or general election day (A.2064, Kavanagh). Each county would be required provide a set amount of early voting hours, but would have the flexibility to offer hours that best meet the needs of its residents.

Another bill would amend the New York State Constitution to allow no excuse absentee voting (A.7623, Vanel). Under current law, absentee voting is only allowed if an individual expects to be absent on Election Day, or because of physical illness or disability. These measures offer a more equitable voting experience by allowing busy New Yorkers more options for casting their ballots.

Also included in the package is a bill that would make voting easier for New Yorkers, in addition to saving millions of dollars statewide for county boards of elections, by combining the federal non-presidential and state primaries to both be held in June (A.3052, Cusick). This legislation would also ensure New York’s compliance with the Military Overseas Voter Empowerment (MOVE) Act and make voting more convenient for all New Yorkers by reducing the number of primary elections.

Another measure in this week’s legislative package is legislation aimed at promoting civic engagement among young voters. This bill would allow an individual who will be 18 years old at the time of a presidential election to vote in the primary election if he or she is 17 years of age (A.3549, Cusick).

Other measures expected to pass this week would ease the process of voter registration for New Yorkers. Under the Voter Enfranchisement Act of 2017, New York State would modernize voter registration by establishing an online voter registration process (A.5382, Cusick). In addition, applications to state and local agencies would incorporate voter registration applications as a seamless process for voters and facilitate electronic processing and registration by the boards of elections (A.6283, Walker).

Similarly, another bill would facilitate the voting process by automatically transferring voter’s registration when they move within New York State (A.3411, Kavanagh). Under current law, voters who move within New York but move out of their current county or New York City must update their registration before the established deadline in order to vote.

Additional legislation would help boards of elections recruit and retain essential staff by allowing election inspectors to split work days into shifts (A.6907-A, Hunter). During an election, polls are open an average of 16 hours, not including time needed for opening and closing the polls, and election inspectors are required to be present during this entire process.

Lastly, the package includes legislation that would extend New York City’s run-off election by one week to allow sufficient time to canvas, audit and test optical scanning machines following a primary election and adjusts several calendar deadlines and allows additional time for receipt of military ballots (A.7745, Carroll).

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Albany Might Delay New York City Run-off Elections

In Politico NY, Bill Mahoney reports that “a bill that has begun to move through the state Legislature would extend the period between primary and run-off elections in New York City from two to three weeks.”

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Board of Elections Called To Have Con-Con Question On Ballot Front

In State of Politics, Nick Reisman reports “a coalition of good-government and civic organizations on Thursday urged the state Board of Elections to print the question as to whether the state should hold a constitutional convention on the front of the November ballot.”

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