Analyzing the three constitutional processes for removing a president against his will.
Analyzing the three constitutional processes for removing a president against his will.
D onald Trump should not be the president for an instant longer. But removing him now could cause more problems than it solves.
Trump was never fit for the job, and from the outset he has done damage to the nation, the Republican Party, and the conservative movement by his presence at the head of each. But since the election, he has taken a darker turn. For four years, Trump at least was constrained and often checked by fellow the need to work together with Republicans to achieve their common political goals. For all of his flaws of character, Trump did not get where he is in life without the instincts of self-preservation to cut deals. But the loss of the election, and the bleeding of Republican support for his efforts to contest its outcome as those have become more desperate, seems to have unhinged Trump. His worst instincts, always on display, have come to the fore: his disregard for truth, his addiction to conspiracy theories, his tendency to personalize all disputes, his inability to place anything above his own personal interests, and his inability or unwillingness to control his own emotions. Since November 3, he has displayed little interest in the fortunes of his party, and even less in the performance of his job.
For the most part, in limiting the damage caused by Trump’s behavior, our system of government has worked. Courts, legislatures, and election officials have refused to cooperate with Trump’s fantasies or offer more than symbolic support for his efforts to circumvent the proper procedures for contesting who won a popular vote. Trump has abused the pardon power, the least constrained of all presidential powers, but he was doing that before the election, too. Even on Wednesday, before mayhem broke out at the Capitol, Vice President Mike Pence made clear that he would abide by the Electoral Count Act and reject Trump’s dubious legal theory of vice-presidential authority to invalidate state certificates of electoral votes. Mitch McConnell delivered an impassioned defense of counting those votes. The system was working.
But what happened Wednesday went outside the system and, for a few hours, overwhelmed its capacity to function. The president effectively incited a violent insurrection against a joint session of Congress, chaired by his own vice president, in the process of counting the electoral votes to certify the new president-elect’s victory. Merely to say this is to underline its gravity. True, the legal definition of incitement is notoriously troublesome, and Trump would not meet it. True also that I typically caution against blaming political rhetoric for political violence. But what Trump did is something different — different in the culprit, different in the scale, different in the consequences.
Trump has, for two months, promoted the notion that a massive conspiracy stole the election and essentially sounded the death knell of American democracy. This has become a dismal and increasingly dangerous habit over the past two decades, with most of the groundwork laid by the Democrats’ persistent refusal to acknowledge the legitimacy of electoral defeats; many of us have warned that it plays with fire, and Trump has now struck the matches. The harder it became to prove a limited set of grievances in court, the broader and more nefarious the theories became, with Trump emphasizing the idea that the Dominion Voting Systems machines had acted as a national election-rigging scheme. If true, this would be the sort of thing that would cause patriotic citizens to seriously consider storming the Capitol. It may have been a cynical or delusional effort (I’m inclined to think more the latter, on Trump’s part, more the former on some of his enablers), but people honestly believed and acted on it.
Trump deliberately summoned a crowd to just down the street from where the counting was done. In one December tweet, Trump said: “Big protest in D.C. on January 6th. Be there, will be wild!” Then, when that day finally arrived, he gave an incendiary hourlong speech to the assemblage. A sample of the rhetoric, which for good measure implied that the Georgia runoffs had also been rigged:
Turn your cameras please and show what’s really happening out here because these people are not going to take it any longer. They’re not going to take it any longer. . . . We took them by surprise [in 2016] and this year, they rigged an election. They rigged it like they’ve never rigged an election before. By the way, last night, they didn’t do a bad job either, if you notice. . . . All of us here today do not want to see our election victory stolen by emboldened radical left Democrats, which is what they’re doing and stolen by the fake news media. That’s what they’ve done and what they’re doing. We will never give up. We will never concede, it doesn’t happen. You don’t concede when there’s theft involved. Our country has had enough. We will not take it anymore and that’s what this is all about. To use a favorite term that all of you people really came up with, we will stop the steal. Today I will lay out just some of the evidence proving that we won this election, and we won it by a landslide . . . Kelly Loeffler, David Perdue. They fought a good race. They never had a shot. That equipment should never have been allowed to be used, and I was telling these people don’t let them use this stuff.
This is how you talk when you are moving from mere procedural objections to popular revolution. Trump told the crowd that Biden “had 80 million computer votes,” and bluntly warned them that we had already suffered the sort of thing that happens in banana republics:
You could take third-world countries. Just take a look, take third-world countries. Their elections are more honest than what we’ve been going through in this country . . . we’re not going to let it happen. Not going to let it happen. [Crowd: Fight for Trump! Fight for Trump! Fight for Trump!] We’re gathered together in the heart of our nation’s Capitol for one very, very basic and simple reason, to save our democracy . . . they’ve totally lost control. They’ve used the pandemic as a way of defrauding the people in a proper election. . . . We’re going to have somebody in there that should not be in there and our country will be destroyed, and we’re not going to stand for that. For years, Democrats have gotten away with election fraud and weak Republicans. . . . If this happened to the Democrats, there’d be hell all over the country going on. There’d be hell all over the country. But just remember this. You’re stronger, you’re smarter . . . this year using the pretext of the China virus and the scam of mail-in ballots, Democrats attempted the most brazen and outrageous election theft. There’s never been anything like this. It’s a pure theft in American history, everybody knows it.
Trump then moved to a call for action to pressure Congress in person — ostensibly peaceably, but Trump set the crowd in motion:
Now it is up to Congress to confront this egregious assault on our democracy. After this, we’re going to walk down and I’ll be there with you . . . we’re going walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated. . . . I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.
You will have an illegitimate president, that’s what you’ll have. And we can’t let that happen . . . we won’t have a country if it happens. This is the most corrupt election in the history, maybe of the world. This is not just a matter of domestic politics, this is a matter of national security. . . . If we allow this group of people to illegally take over our country, because it’s illegal when the votes are illegal, when the way they got there is illegal, when the States that vote are given false and fraudulent information. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore . . . So we’re going to, we’re going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we’re going to the Capitol and we’re going to try and give . . . our Republicans, the weak ones . . . the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.
There was much more, of course, but you get the idea. Ask yourself: If you heard and believed every word of this speech, coming from the president of the United States, in a setting as dramatic and theatrical as any Hollywood film, what would you do? Would you believe that the time had come to take up arms to save your country and democracy? A lot of Americans, people of good will, very well might. Most of that crowd, being peaceable patriots, did not. But a significant group numbering in the hundreds pushed past the Capitol police, broke into the building, and made their way to the House chamber and congressional offices. The constitutionally mandated proceedings were interrupted, the vice president was evacuated by the Secret Service, and members of Congress were forced to hide and flee. This must not stand in America. And it was the direct result of Trump feeding this message to this crowd, winding them up, and aiming them down Pennsylvania Avenue.
Then — this part is in dispute — Trump reportedly compounded the problem caused by his mouth by failing to do his job. Per Jennifer Griffin of Fox News:
For the record, Pence was on series of short phone calls with Pentagon about mobilizing the DC National Guard at Mayor Bowser's request. Chief of Staff Mark Meadows transmitted the intent of the President, eventually 1100 DC unarmed National Guard mobilized. Ordered to DC Armory.
— Jennifer Griffin (@JenGriffinFNC) January 7, 2021
Kaitlan Collins, Zachary Cohen, Barbara Starr, and Jennifer Hansler of CNN reported:
As the chaos unfolded, doubts were raised about whether Trump would order the DC National Guard to respond due to the slowness of the response. Public statements by acting Defense Secretary Christopher Miller and other top officials suggested it was Pence who ultimately approved the decision. Miller’s statement Wednesday seems to indicate he did not even speak with Trump. . . . Republican House Minority Leader Kevin McCarthy sidestepped questions Wednesday night about whether Pence, not Trump, directed the DC National Guard to be activated but suggested the vice president ultimately approved the decision. Asked by Fox News about reporting that Pence, not the President, approved the activation, McCarthy demurred, but ultimately said: “I know the vice president has been in constant contact with us and also along with security inside the Capitol, I communicated with the vice president early on. It was in regards to getting the National Guard there. He said he will call right now.”
Maryland governor Larry Hogan said that he could not get federal authorization to activate the Maryland National Guard. Trump later took credit for ordering out the Guard. If Congress is considering impeachment (as Chuck Schumer has now demanded), this would be the one matter requiring some investigation in order to clarify. Trump was not responsible for the insufficient security at the Capitol: It was Muriel Bowser, the Democratic mayor of D.C., who refused additional law enforcement protection in advance of the protest. But if Trump did, in fact, refuse to deploy the National Guard while the Capitol was under attack, or at least made it necessary for the secretary of defense to look elsewhere for someone to make that call, that is a serious dereliction of his Article II duty to take care that the laws be faithfully executed, and doubly serious in combination with having created the whole situation himself.
To summarize: Donald Trump has done bad things before, many of them casting doubt on his fitness for office and/or his emotional stability, some of them abuses of office at least arguably grounds for impeachment and removal by the Congress. But this time, he has crossed several lines at once: inciting a violent threat to the orderly transition of power, demonstrating an inability to function as head of the executive branch or control his own behavior, and sowing corrosive mistrust of American democracy itself. He should leave office, now.
But how to make him go?
Letting the Election Process Work
There are three constitutional processes for removing a president against his will. The first, of course, is the traditional remedy: Vote him out. This has already been done, and there is every reason to believe that Trump will still (however grudgingly) leave office peaceably on January 20, having no realistic plan to the contrary nor the nerve to carry one off himself. He issued a statement early Thursday morning pledging to do so. But it does not solve the dual problems at hand: Trump can no longer be trusted with the presidency even for a short duration, and he ought to face some sanction for what he did. True, Congress could take the path of least resistance and formally censure him, and perhaps it should. But that seems inadequate.
The 25th Amendment
Under the 25th Amendment, a president who is “unable to discharge the powers and duties of his office” can be removed immediately on a temporary basis by the vice president, if he has the support of a majority of the cabinet. If Mike Pence had the support of a majority of the cabinet, he could do this, and become acting president. Nancy Pelosi came out today in favor of this, and there appear for the first time to be serious discussions within the administration, although there is no indication that Pence himself is considering such a step even after he has been more or less exiled from the White House. The resignation of Elaine Chao as secretary of transportation would seem a sign that cabinet members who might be inclined to support such a move (also including Attorney General Barr and Defense Secretary Esper, both of whom resigned weeks ago) prefer to leave rather than stage a vote to install Pence, or believe that such a step will not be taken. It appears, at this writing, that Pence is not willing to invoke the 25th Amendment.
If Pence took the step of declaring Trump “unable” to continue and Trump protested, Congress would be required to vote within 21 days, and would require a two-thirds vote in both chambers to strip Trump of his powers on an ongoing basis. But Trump does not have 21 days remaining in his term. However, while acting as president, Pence would not be able to serve as the president of the Senate or vote to break ties there. Pence could run out the clock, and hand over the ship of state to Joe Biden on January 20.
The 25th Amendment process is designed for when the president is physically or mentally incapacitated, and it is explicitly an emergency measure. It has been often, and inappropriately, suggested as a remedy by Trump’s foes merely for Trump being who we already knew Trump was. That would set us down a terribly dangerous path, when we have the remedies of elections and impeachments to deal with continuing problems of presidential character rather than emerging issues of presidential illness. This, however, is a short-term problem of Trump’s obsessive focus on contesting his election impairing his ability to do his job and fulfill his oath, rather than a long-term problem of Trump being Trump. So, the tool of the 25th Amendment is well-suited to the task at hand. But is it constitutional?
I share the concern of Andy McCarthy and Kyle Smith that this would fairly gravely stretch the constitutional meaning of “unable” as it was understood when the amendment passed Congress in 1965 and was ratified by the states in 1967. It was not designed for Soviet-style declarations that bad decision-making should be equated to incapacity. And it would open some unprecedented doors to seizures of power by future vice presidents. It might not be long before we lived to regret that. That said, I am not so certain as Andy and Kyle that the meaning of the word “unable” can never properly be extended to a president who is physically sound and in possession of his usual faculties, but is manifestly no longer able to carry out the duties of the office as he had done before. We have had, several times in the past, presidents who were so badly unglued by bereavement that they were unable to function for some period of their term (notably Jackson and Coolidge), and the process might fairly have been temporarily extended to them. The crucial fact here is not just that Trump is distracted entirely from his job, but that his current state of mind triggered a violent assault on the Capitol. One hopes that will not recur in future presidencies.
The internal-to-the-executive-branch alternative is what we may already be seeing: a de facto stripping of nearly all of Trump’s powers (besides the pardon power) by people in his administration just refusing to listen to him anymore, as many quit their posts. This has its own risks: What if decisive executive action is needed soon, as it was just Wednesday? And isn’t it its own dangerous precedent to allow Pence or others in the administration to stage a kind of silent coup? That is what Edith Wilson did, in the absence of the 25th Amendment, when her husband Woodrow suffered a stroke and was actually incapacitated, and history has not judged it kindly.
Impeachment
An alternative from the other end of Pennsylvania Avenue, which relies less on arguments about Trump’s mental state, is another impeachment. Impeachment also has an additional virtue: Unlike the 25th Amendment, it empowers Congress (if it wants) to bar the impeached president from holding office again. (In fact, the two tactics could be used simultaneously if the political will exists.)
The House could pass articles of impeachment in a day, if it really wanted to. But that raises the question of a Senate trial, which can be time-consuming and divisive and requires a two-thirds majority vote for removal. The Senate could, as it did last January, vote to truncate a trial, although that is easier to justify when proceeding to an acquittal than a conviction. Eleven months ago, I argued that because Trump had committed no legal crime, was charged with the political crime of abuse of power, and faced an impending election, it was imprudent to remove him from office unless there was clear, bipartisan public support for impeachment — which there wasn’t. What about now?
One way or another, I come back to this: Removing Trump from office by a clear, bipartisan action (by Pence, or by a large number of Republican senators) might possibly avoid tearing the country apart. But a hotly contested effort to do so would be worse than what we have now, imposing long-term political damage and possibly inciting more violence rather than calming the waters. So, the question is not whether most Democrats or some Republicans are willing to do so or could justify it, but whether enough Republicans are on board to make this look more like a unanimous verdict of our political system. That would, in turn, make it harder for Trump to mobilize support to target the people who voted him out. But it is far from clear that the overwhelming popular mandate exists for such a dramatic step.
This gets to the real nub of the problem with either of these remedies: The case for removing Trump is largely one of prudence — of care for the system. But is it prudent, two weeks before the end of his term, to stage a potentially divisive fight to strip Trump of his powers? In particular, if Congress can muster a large, bipartisan vote for a resolution of censure, that is almost certain to attract the support of some Republicans who would otherwise balk at an impeachment vote. It might enable the partisan temperature to come down, rather than go up, while leaving behind a formal marker of disapproval.
I do not have an easy answer, and that suggests caution. Surely, at this juncture, Trump richly deserves impeachment and removal. Mike Pence, having been close to this president for years, is in a better position to assess whether he is truly in such a dangerous mental state now that the hazards of leaving him in place outweigh the risk of popular rage if he is defenestrated now. But one way or another, Trump’s actions since the election have indelibly stained his presidency. He cannot go away soon enough.
Editor’s Note: This article has been updated to reflect that Pence could not serve as president of the Senate if serving as acting president. Article I provides that the Senate has a president pro tempore to preside “in the Absence of the Vice President, or when he shall exercise the Office of President.”