Who is Going To Make President Trump Leave Office?

Hon. Carroll G. Robinson & Dr. Micheal Adams, Ph.D

We have not heard any talking heads on TV, print journalists or academic scholars talking (or writing) about a very simple, straightforward, practical but difficult constitutional, legal, political and administrative question: Who is going to make President Trump leave office if convicted for impeachable offenses?1

It seems to us that people, in particular, Democrats in Washington, D.C. and across the country, are just taking it for granted that if public opinion were to turn against him, or the United States Senate (for whatever reason) were to come up with a two-thirds super-majority vote to convict and remove President Trump for committing impeachable offenses that he would leave office (figuratively the title and literally The White House) of his own accord. Why would anyone, especially Democrats, believe that, if they truly believe the President is willing to break any and all the historic political rules and norms of our nation?

Under the Constitution, what can Congress or the courts really do if Trump refuses to leave the presidency and the White House? There is no police power attached to the Article I Impeachment Clause. Could Congress send the Capitol Police to The White House to remove the President? Who would order the Secret Service to stand down? Could Congress commandeer the Secret Service and use them to remove the President? If so, based on what authority?

Who will have the power to order the military to not follow Trump’s orders? Mike Pence? The Secretary of Defense? Or the nightmare scenario — Generals or lower-ranking officers? Civilian command of the military has been one of the major cornerstones of our democracy and it will be tested and put at risk if Trump were to refuse to leave if convicted after impeachment.

Should the military or some federal law enforcement agency such as the FBI be used to remove Trump from the building — The White House? Where in the Constitution is that allowed? Would resolving this dilemma be considered a political question by the courts which they could not decide? Even if not a political question, think of the damage that would be done to the constitutional and administrative order of our nation while waiting on litigation to resolve the matter. This kind of situation would be even worse than the post-2000 presidential election litigation that resulted in the Bush v. Gore Supreme Court decision.

Hopefully, preparations are being made behind the scenes, by Congress and the United States Supreme Court, to deal with this possible constitutional crisis. Congress needs to work on updating and modernizing legislation pursuant to their legislative authority under the XX and XXV Amendments to the Constitution to prepare for the possibilities above and what follows below.

Back To Court We Go?
If President Trump were impeached, convicted and removed from office and barred from running again, what safeguards are there to keep his name off the 2020 General Election ballot if the Republican National Convention nominates him for President
and states allow his name on the ballot?

As impossible as it may seem and be, what if Trump were to win the Electoral College on a write-in vote? At least one Federal Court of Appeals has already ruled that Electors are constitutionally free — not bound by state law — to vote for the candidate of their choice. In Baca v. Colo. Dep’t of State in 2019 the Court of Appeals for the Tenth Circuit concluded that “Article II and the Twelfth Amendment [of the United States Constitution] provide presidential electors the right to cast a vote for President and Vice President with discretion.”

Since Electors are potentially2 legally free to vote for the candidate of their choice, Trump may only need one (1) write-in vote in enough of the right states to be re-elected or cause a major constitutional crisis under the Twelfth Amendment presidential election process possibly resulting in the need to resort to the acting President provision of Section 3 of the Twentieth Amendment or federal legislation authorized by the same provision.

Additionally, nothing in the Constitution expressly allows Congress to reject Electoral Votes cast by Electors3 and Congress has never refused to accept any such votes; even electoral votes from so-called faithless Electors. (See Baca v. Colo.)

Finally, what if President Trump after being impeached is not convicted but loses the 2020 General Election? What if he then refuses to vacate the White House come January 20, 2021, because he just refuses to do so or challenges the election result in all fifty states and the District of Columbia by way of paid requests for recounts and then state court and/or federal court litigation? Who is going to make Trump leave?

For some, this piece will have been read as an example of extreme, unrealistic and hyperbolic hypotheticals or as fantasies too farfetched and ludicrous to be taken seriously. These are exactly the mindsets that produced the 2016 presidential election results. Take this piece for what it is: an encouraging note for us to prepare for things that people once would never believe could happen, in our nation, under our constitutional and political systems. Our closing question is simply this: have we not yet seen enough in the past three years to now believe that the once politically (and constitutionally) implausible is not only plausible but likely to happen?

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* Carroll G. Robinson is an Associate Professor of Political Science and Public Administration at the Barbara Jordan-Mickey Leland School of Public at Texas Southern University (TSU) in Houston, Texas. Michael O. Adams is a Professor of Political Science and Public Administration at TSU and Chairman of the Political Science Department of the Jordan-Leland School of Public Affairs.

1. See, e.g., How to Fix Impeachment, Politico Magazine, 12/06/2019.

2. The United States Supreme Court has not directly addressed this issue to date.

3. Congress may have the power to reject-refuse to count-electoral votes but doing so could have a major ripple effect if Congress were to reject a majority of the electoral votes cast and send the election for President to a vote of the U.S. House of Representatives. This could result in another 1800 type election where it took the House twenty-six votes to elect Thomas Jefferson President. The election of 1800 is a best-case scenario.

In a future piece, we will be writing about Electoral votes and whether Congress has the authority to decertify their prior acceptance of electoral votes.