If the Vice President undisputedly murdered the sitting President, is there anything stopping them from becoming President?

Question

If the Vice President murdered the sitting President in cold blood for all to see, would they still become President? Would they simply get sworn in or is there a mechanism to stop them?

Answer 1

Background

This is a "constitutional corner case" that was surely not contemplated by the U.S. Constitution of 1789, or any of its amendments, and which would seem to violate the spirit, although not the letter of the constitution.

The possibility of this scenario was quite real in the early Republic, as Vice Presidents were frequently runners up in a Presidential election before the practice of having a President and Vice President run as a single ticket was established by the 12th Amendment in 1804, because in that time period, as for example, the life of Alexander Hamilton (one of the "Founding Fathers") teaches us, duels between prominent politicians over all manner of petty or not so petty slights were commonplace.

Institutionally, the 12th Amendment certainly reduced the likelihood of this scenario coming up, because the President and Vice President agreed to run together in the first place. But it remains the case that a President frequently chooses a Vice Presidential running mate late in the Presidential primary process, often formally, only at the national convention of a political party, and a Vice President is frequently chosen from another faction than that of the President within that political party to "balance the ticket."

The 25th Amendment, which authorizes the Vice President, with the backing of a majority of the heads of the principle departments of the federal government, to remove a President from office on account of a disability, further reduces the likelihood that a Vice President would murder the President in a power grab out of a fear of the grave consequences of allowing an impaired President to lead the country in a time of crisis.

Further, while there are gray areas in the definition of "High Crimes and Misdemeanors" that provide a valid basis for the impeachment of President or Vice President, there has never been any serious doubt that murdering the President would qualify, and such an act, if unambiguously certain to have happened, even in a highly partisan age, would probably lead to bipartisan support for an impeachment. I can think of no time in U.S. history, with the sole exception of the waning days of President Nixon's Presidency, when the members of the U.S. Senate of the same party as the President felt greater loyalty to the Vice President than to the President.

On the other hand, partisanship has grown very strong, and when a Vice President is elevated to being President, there is no Vice President in place, and the Speaker of the House of Representatives, who could be of a different political party than that of the President and Vice President, and whom the members of the U.S. Senate of the party of the President and Vice President gravely feared giving power to, might try very hard to persuade themselves that impeachment was not appropriate, even in this glaringly obvious case.

Also, the delay occasioned by even a very rapid impeachment process would be troubling and could lead to a constitutional crisis that could get out of hand if the former Vice President purports to take bold, irreversible actions promptly after murdering the President and purporting to become the President, which is a very likely scenario if this happened.

The Prima Facie Case That The Vice President Becomes The President

Nonetheless, on the face of plain language of the 25th Amendment, the Vice President becomes the President by operation of law, at least, upon being sworn into office, a task that can be performed by myriad officials, one of whom could be kept ignorant of the circumstances of the President's death. Section 1 of the 25th Amendment states that:

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

This would be directly subject only to Section 1, Clause 8 of Article II of the U.S. Constitution which provides that:

Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

As an aside, the constitutional provision related to oaths for all other officials in the United States is found in Article VI of the U.S. Constitution. It states:

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

The Arguments That The Vice President Does Not Become President

The Procedural Process For Challenging The Vice President's Succession

Presumably, a challenge to a Vice President's purported assumption of the office of President after murdering the President and being sworn in, would most obviously be challenged legally, prior to any impeachment proceeding, in a "Petition for Writ of Quo Warranto", filed either in the U.S. District Court for the District of Columbia, or in the original writ jurisdiction of the U.S. Supreme Court under the All Writs Act of 1789, 28 U.S.C. § 1651, which by statute, effectively incorporated by reference in U.S. civil procedure, the common law writ practice of England.

The person with the strongest standing to bring that Petition would be the Speaker of the U.S. House who is next in the line of succession to the Presidency after the Vice President, who would be entitled to take the office of President if the Vice President was disqualified. One could imagine a court finding that someone else also had standing to sue, but no one else would have as a strong a standing claim as the Speaker of the House.

The All Writs Act currently provides (as amended) that:

(a)The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

(b)An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

As the link above explains:

In the United States today, quo warranto usually arises in a civil case as a plaintiff's claim (and thus a "cause of action" instead of a writ) that some governmental or corporate official was not validly elected to that office or is wrongfully exercising powers beyond (or ultra vires) those authorized by statute or by the corporation's charter.

The law of writs of quo warranto draws on English common law precedents going back to the 12th century, and subsequent U.S. precedents after the revolutionary war.

I do not believe that in these circumstances that the Courts would decline to take up the case on the grounds that is a political question, because it really doesn't differ materially from other quo warranto actions for which there are many precedents, and because it doesn't usurp the authority of Congress to resolve disputed elections.

The Pure Slayer Rule Argument That The Vice President Is Not President

I would not be at all surprised if a legal history scholar could swiftly identify a precedent in that jurisprudence for declining to let someone who takes an office (probably an aristocratic one) by operation of law upon another person's death to take that office in a "slayer case".

The slayer rule, in the inheritance and non-probate transfer at death context, has been held to be a part of federal common law, even though state statutes imposing slayer rules are pre-empted by ERISA or federal government employee benefit laws, despite the lack of express statutory authorization for them.

A U.S. Court in a case of first impression, might be quite inclined to read a similar form of estoppel from taking the office of President applied in the case of a Vice President who murdered the President, without murder fear that the fact that the ruling has a thin legal justification would led to bad results of such a precedent in future cases.

One of the closest analogies to this would be the case of State ex rel. Shea v. Evenson, 159 Wis. 623, 150 N.W. 984 (1915), which was a quo warranto action to try the winning candidate's (Evenson's) title to the office of town chairman. The relator (Shea) offered in evidence the record of a criminal action in which Evenson was found to have converted town funds to his own use and was therefore removed from public office.

The 14th Amendment Argument

Another probably strong argument that could be raised in a quo warranto action brought by the Speaker of the House who would be next in the line of succession and hence have standing to sue, that involves less blatant judicial law making would be to invoke Section 3 of the 14th Amendment to the U.S. Constitution which states (line breaks inserted for easier parsing and not in the original):

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state,

who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States,

shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

But Congress may by a vote of two-thirds of each House, remove such disability.

It would hardly be a stretch to argue that a Vice President's act of murdering the sitting President constitutes "engaging in insurrection or rebellion" against the Constitution of the United States that would disqualify him from holding the office of President, and would shift the status quo.

The are ample precedents for the assassination of a head of state being considered an act of war, rebellion, or insurrection (such as the assassination of Archduke Franz Ferdinand that started World War I).

A judge who was swayed by a desire not to displace the authority of Congress out of separation of powers concerns would have some solace that this decision would not be deeply undemocratic to such an extent that it would outweigh the undemocratic act of murdering the duly elected or appointed President for the purpose of getting his job, since this would only change the status quo, rather than removing Congress from the equation entirely.

A two-thirds majority of the House and the Senate could remove that disqualification, but it would not take a majority of the House and a two-thirds vote of the Senate at a trial on a House impeachment presided over by the Chief Justice of the United States (a title that is not, as sometimes incorrectly stated the Chief Justice of the United States Supreme Court), to remove the former Vice President from holding office as President or Vice President.

The Vice President could argue that since Section 3 of the 14th Amendment expressly includes Presidential and Vice Presidential electors, but does not expressly include Presidents and Vice Presidents, that this provision would not apply to him or her. But that plea made by the former Vice President with the former President's blood on his hands, would probably fall on deaf ears.

One maxim I have found to be true when reviewing the actions of courts is that artificial solutions to artificial problems are frequently deemed acceptable as long as the bottom line end result is an acceptable one.

Conclusion

In this case, a writ of quo warranto action brought in the U.S. District Court for the District of Columbia or the U.S. Supreme Court, by the Speaker of the U.S. House, alleging that the Vice President was disqualified from serving as President because his murder of the President amounts to engaging in insurrection or rebellion against the United States, until such time as Congress removes that disability, would seem to me to be the most plausible prompt resolution of this situation.

I believe that it is very likely that the Courts would adopt this approach if asked. If it was taken, I believe that it would receive the wide support of Congress, the Judiciary, the states, and the American public.

By effectively removing the murdering former Vice President from both the office of Vice President and the office of President, many barriers to arresting and prosecuting the Vice President under federal law for assassination the President (or as a murderer under D.C. law) as a common criminal would also be eliminated.

Answer 2

In this case the VP would assume the office of the president due to Section 1 of the 25th Amendment. It states that the VP shall become the president upon the death of the president and there is nothing to stop that.

https://www.constituteproject.org/constitution/United_States_of_America_1992

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

What would likely happen is that congress would act quickly to remove them from office via impeachment as the actions would be seen as high crimes and require removal from office.

Answer 3

According to Section 1 of the 25th Amendment, the Vice President becomes President when the sitting President dies, resigns, or is removed from office, and according to Section 1, Clause 8 of Article 2 the President can begin executing their duties as President after they take the oath of office. In short, nothing can stop a murderous Vice President from becoming President, as the succession happens automatically once the sitting President dies.

Section 1 of the 25th Amendment:

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 1, Clause 8 of Article 2:

Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

So, just going by what is described in the Constitution: once the sitting President dies the Vice President is considered the President, and once they take the oath of office they can execute the powers of the President.

One unresolved issue may be whether or not they could get someone to administer the oath of office to them: the Constitution has specific wording for the oath that the President must take, and the Vice President takes a different oath during the inauguration. As for who can administer the oath, it seems like anyone could probably do it: the Chief Justice typically swears in the President but that just tradition and not required by the Constitution. and federal law regarding oaths of office and who can administer them specifically says that it doesn't apply to the President. As long as they can find a single person willing to say the words with them that should be enough to officially take on the powers of the Presidency. There are probably some more nuanced questions about what a President is allowed to do before taking the oath and whether people can just ignore the President's orders before the oath is taken, but that's probably a better question for the Law SE site.

Answer 4

This is a "Constitution as software, government as hardware" question. It presupposes that the operation of the Constitution is entirely automatic and governed by rules, in much the way that a computer system will match its state to a set of instructions encoded in the software and mindlessly execute that instruction.

It fails to recognise that there are real live people involved in every single act of Government.

If the VP murders the President, then this isn't some kind of subtle Constitutional question. It is a simple violent crime and the outcome is entirely dependent on the ability of the VP to command the police and army. If sufficient members of the police and army back the VP, then they can take power; if not, then they can't and they will be incarcerated.

You don't need to look at the text of the Constitution. This is a simple act of violence against an individual and an office, and the outcome is defined by the acts of men and women with guns, not by Constitutional lawyers.

Answer 5

If the Vice President undisputedly murdered the sitting President, is there anything stopping them from becoming President?

If the Vice President murdered the sitting President in cold blood for all to see, would they still become President?

For both of the above, it depends somewhat on timing.

Would they simply get sworn in or is there a mechanism to stop them?

1. Don't declare the president dead until the vice president is removed from office.

The vice president could be stopped by medical technology (or, simply, refusal to declare the president dead), reluctant cabinet members and Congress.

The major impediment is a declaration of death. The president has a medical team standing by at all times. Whatever act the vice president may have done that would result in the president's death, the medical team will work to save the president's life. The vice president can not become president (Amdt. 25, Sec. 1) until death has been declared. The president could be on life support for days, even weeks.

If the president is on life support (i.e., death has not been declared), the vice president must rely on the support of half the cabinet (Amdt. 25, Sec. 4) to declare the president "unable to discharge the powers and duties of [their] office" to become acting president.

Finally, the vice president must survive a potential impeachment and trial by Congress. Note that the impeachment trial of the vice president does not require the Chief Justice to preside and could, potentially, be done in hours.

Removal of the vice president creates a vacancy in the office of vice president. Under 3 U.S. Code § 19(a)(1), "If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon [their] resignation as Speaker and as Representative in Congress, act as President." Note that "inability," above, does not require cabinet approval – a medical determination is sufficient.

Or,

2. Prior to the issuance of a declaration of death of the president, lock up the vice president for violating 18 U.S. Code § 1751(c), creating an "inability" of the vice president "to discharge the powers and duties of the office of President"; then invoke 3 U.S. Code § 19(a)(1). Afterward, upgrade to 18 U.S. Code § 1751(a) to keep the vice president behind bars while proceeding with the impeachment and trial.