Against the 25th Amendment — and Warily against Impeachment

Vice President Mike Pence leads a briefing in the Brady press briefing room at the White House in Washington, D.C., November 19, 2020. (Leah Millis/Reuters)

The conduct we’ve witnessed is impeachable, yes. But let’s try to take the temperature down, rather than raising it.

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The conduct we’ve witnessed is impeachable, yes. But let’s try to take the temperature down, rather than raising it.

NRPLUS MEMBER ARTICLE T hese are dark days in the history of the United States, and no one is feeling them more intensely than Mike Pence.

On Wednesday, the vice president admirably turned aside the president’s high-intensity demands that he shred the Constitution. Trump was pushing Pence to usurp the states’ power over the disposition of their electoral votes — in effect, to claim dictatorial power to reverse President-elect Biden’s victory. Pence’s fidelity to his constitutional oath so enraged Trump that the president publicly rebuked him even as an insurrectionist mob was descending on the Capitol. Press reports indicate that the rioters, upon overwhelming security forces and entering the building, set about searching for Pence — who, by then, had been whisked away while members of Congress were also being safeguarded.

The vice president and congressional leadership were intrepid in returning to their important business last night. But even before the electoral votes were finally counted and Biden was recognized as the next president, calls were coming from both sides of the political aisle for Pence to invoke the 25th Amendment to remove Trump from power with less than two weeks to go in his term.

To do so would not be as grave an offense against the Constitution as would have been acceding to Trump’s unhinged demands. But make no mistake, it would be unconstitutional.

The 25th Amendment is not a substitute for impeachment. It is a necessary process to deal with a specific kind of dire situation, namely, when the president is by some medical emergency rendered unable to perform the duties of the presidency. It is meant for such situations as Woodrow Wilson’s stroke or presidential assassinations which, as our history illustrates, sometimes require life-saving emergency surgery or tragically find stricken presidents lingering a while before expiring.

The amendment is not applicable to a situation in which the president is alleged to be unfit for reasons of character, or due to the commission of political offenses that may rise to the level of high crimes and misdemeanors.

As laymen, we may believe the president is delusional — i.e., that he has convinced himself, irrationally, that he won the election (“by a landslide,” as he maintains), and that he is acting out perilously as a result, whether it is in yesterday’s incitement or last weekend’s bullying of Georgia’s secretary of state. We may also agree that Trump’s solipsism has dangerously deepened, to the point that he cannot see to the nation’s interests beyond his own. These, however, are not competent diagnoses of mental instability. That is not within our ken. Even experts in the field would hesitate to render a conclusion based only on what we can publicly observe, without a clinical examination.

To endorse invocation of the 25th Amendment in this context would not only be wrong, it would create a hazardous precedent. Trump is physically healthy and functioning mentally. What we are witnessing is an elucidation of profound character flaws, not a mental breakdown.

That is not a basis for invoking the 25th Amendment. Moreover, those who suggest that it is are deluding themselves into believing that the amendment is, compared to impeachment, a shortcut to presidential removal. For precisely the reasons I’ve just outlined, the amendment is designed to make it difficult to remove a president who is not befallen by a medical disability.

Under Section 4 of the amendment, removal may only be triggered if the vice president and a majority of “the principal officers of the executive departments” conclude that the president is “unable to discharge the powers and duties of his office.” To corral such a majority from among presidential appointees under circumstances where the president is not patently under a medical disability is highly unlikely. There are currently 211 Republicans in the House, and last night, notwithstanding the dearth of fraud evidence, 138 of them voted against counting Pennsylvania’s electoral votes. Do you really think, even if Pence was of a mind to invoke the 25th Amendment in the absence of a medical emergency, a majority of Trump’s own appointed executive officers would agree to do so? I don’t see that happening.

(As an alternative to a majority of top executive officials, Section 4 floats the possibility of the vice president’s being joined by a majority of a body created by Congress to assess the president’s fitness. But there is no such body at this time, though House speaker Nancy Pelosi raised some eyebrows in October by suggesting that one be established.)

Even if the vice president and a majority of cabinet officials determined the president should be removed, the president would presumptively be entitled to resume his office if he declared in writing that no inability exists. At that point, the vice president and the cabinet majority would be put to the choice of acceding to the president’s resumption or opposing it in a notification to Congress. It would then require a supermajority vote — two-thirds — of both congressional chambers to maintain the vice president in power as acting-president. At this late stage, it might be possible to run the clock through January 20 with Pence as acting president while Trump challenged his suspension; but it would be a circus of instability — and knowing that it would be would make Pence and the cabinet even less likely to invoke the amendment in the first place.

Practically speaking then, unless the president is profoundly impaired in a medical sense, the 25th Amendment is more difficult than impeachment as a path to removing a president. A fortiori, if the rationale for removing the president is misconduct rather than medical disability, it makes no sense to invoke the 25th Amendment, which is not meant to address misconduct. As we saw a year ago, impeachment requires only a simple majority of the House to allege an article of impeachment, and then a two-thirds’ Senate majority for expulsion — i.e., one super-majority vote, not two.

Obviously, it is not my purpose to trivialize what happened yesterday. It is a stain on the republic, and I have publicly stated that the president incited it. Having prosecuted a man for inciting crimes of violence, it is not a term I use lightly.

That said, the events of yesterday also demonstrated yet again that our deeply divided country is a tinderbox right now.

I have tried, over the past two months, to analyze the president’s allegations of election fraud and improprieties. It is apparent that the major claims he is making about a stolen election are untrue — even if it is also clear that there were improprieties, and that there are significant election-integrity problems with mass-scale mail-in voting.

The problem, however, is that Trump is an extraordinarily effective populist demagogue. What’s more, the presidency is still the bully-pulpit, for good or ill. As a result, tens of millions of Americans believe his claims. The vast majority of them are not thugs bent on storming the Capitol, but they are smoldering for a variety of reasons, not least a year of pandemic, lockdowns, economic distress, rioting, spiking crime rates, and — lest we forget — a foolishly partisan presidential impeachment.

For purposes of national cohesion and stability, it doesn’t matter that millions of ardent Trump supporters are wrong to believe the election was a coup. What matters is that they believe it. There will be plenty of time later to assess blame for that, to examine the reasons for the outsize influence the president has continued to exercise over many Republicans in a post-election period when his influence should be eroding. For the moment, we have to deal with the straits we’re in. That counsels against further inflaming the situation if that can be avoided.

The conduct we’ve witnessed is impeachable, and I will not contend otherwise. Still, there are 13 days to go in this presidential term. Again, trying to be practical, it would be difficult at this point to impeach a president with anything approaching the legitimate due process we would want as a precedent for future impeachments. I won’t say it would be impossible. As Justice Robert Jackson sagely observed, the Constitution is not a suicide pact. If it were necessary to national security to cashier a president forthwith, it could be done. But it should not be done in the absence of clear necessity.

To my mind, the best thing for the country would be for Vice President Pence to work closely with congressional leadership, top executive officials, and the Biden transition team to watch the situation closely, and to promote and project stability so our adversaries don’t misjudge this as a time to go too far in taking our measure (see, e.g., Russia’s recent hacking campaign, which also hit the Justice Department and the federal court system). The president has now, however grudgingly, given an assurance that there will be a smooth transition of power. Try to hold him to that before deciding we can’t. Let’s try to take the temperature down, rather than raising it, and get through the next two weeks.

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